Cocaine in truck convicts owner

Eduardo Swaby-Gutierrez was sentenced last week to 12 years imprisonment after Chief Magistrate Margaret Ramsay-Hale found him guilty of possessing 21 grams of cocaine with intent to supply.  

In handing down her verdict, she said the cocaine was seen in Swaby’s truck by police officers who went to his place of work on the night of 29 December, 2009. Swaby, 27, had closed up the West Bay shop he managed, but unlocked the door at the officers’ request. 

The officers searched a back room, used to store stock, and found small particles of what appeared to be cocaine on a table. They also found a scale, foil paper and a knife on which there were visible traces of what appeared to be cocaine. 

A red truck was parked outside the shop. Officers looked through its window and saw on the console four transparent plastic bags of what appeared to be cocaine. Swaby acknowledged the truck was his, but said he had not used it all day. He told officers he had lent it to a friend, whom he named. 

That friend gave evidence and said he borrowed the vehicle to transport some lumber and he had picked up a confessed crack addict. The addict also gave evidence and said he had stolen drugs that day. After he got a ride, he and the driver went to a boat yard where they consumed cocaine. He thought they were together an hour or hour and a half. Afterwards the driver dropped him back on Watercourse Road. He said he had started with six packages of cocaine, had used one and started another. After he was dropped off, he realised he had lost the rest. This witness said when he heard Swaby had been arrested and was the owner of the truck, he came to the view he lost the cocaine in the truck. He was driven by conscience to confess the drugs were actually his, the chief magistrate summarised. 

She said she found his narrative unconvincing and it had unravelled under cross-examination by Crown Counsel Tanya Lobban. Police had seen the drugs just by looking through the truck window, so the bags would have been in plain view of the driver. The driver said he had dropped his passenger at his house, but the passenger gave a different account. The witnesses also disagreed on the amount of time they had been together. The chief magistrate said she regarded them as witnesses of convenience and not as witnesses of truth. 

Both are serving sentences at Her Majesty’s Prison at Northward for other matters. 

The presence of cocaine in Swaby’s truck raised a presumption it was his, but Swaby could rebut it. However, the witnesses he called and the explanation they gave did not raise any doubt in the chief magistrate’s mind. She said she was satisfied Swaby had custody and control of the vehicle and she was sure he possessed the cocaine. 

She rejected his evidence that he was not aware of the knife or the scale found in the back room of the shop. Swaby had said the gold foil found was used to wrap fireworks, which he bought in bulk and sold individually. The chief magistrate said that could very well be, but she accepted the evidence of a police officer who said individual portions of cocaine are often wrapped in foil. 

The finding of the items in proximity in the back room supported the inference Swaby possessed the cocaine with intent to supply it. Further, the quantity was not consistent with possession for personal use, she pointed out. A portion of the knife blade was encrusted with cocaine, and she had no doubt it had been used to cut the cocaine in its preparation. 

A co-accused, Lisandro Almaguer, had been working with Swaby in the shop throughout the day. When police arrived, he was just emerging from a bathroom in the back of the shop. He had been charged with being concerned in the possession of the cocaine, but that was dismissed at the close of the Crown’s case because there was nothing to connect him with the drugs in the truck. He had admitted consuming cocaine and he was found guilty of possessing the knife as a utensil used in the consumption.  

Attorney John Furniss said Almaguer, 27, had no previous convictions. He urged the court to say both offences could be dealt with without immediate imprisonment. The chief magistrate agreed the matter could be disposed of by way of fines: $750 for consumption, $250 for possession of the utensil; and $500 in costs, for a total of $1,500. Attorney Prathna Bodden spoke for her colleague Lucy Organ and advised Swaby had no relevant previous convictions. She agreed with the court that sentencing guidelines call for 10 to 12 years for four or more grams of cocaine on conviction after trial. During presentation of the case for the prosecution, Ms Lobban submitted certificates of analysis confirming the various items tested to be cocaine.