23 This is not a case in which the Crown suggests that it is too early to consider the question of delay.[3] In any event, I cannot readily contemplate any changes between now and the committal date which might lead me to conclude that the applicant ought to remain in custody until committal and the matter be reconsidered thereafter.
24 It is not suggested that the anticipated delay is attributable to anybody's fault. I accept that the police and forensic scientists have to do the best they can with limited resources. But delay itself, even without the apportioning of any blame, may be sufficient to exceed what our society regards as an acceptable period for a person to be incarcerated without trial. It is also not to the point to say that such a delay may be the "norm" or "usual" in the prosecution of serious and complex drug offences, if it exceeds what is acceptable.[4]
25 I was referred to numerous cases in which bail was granted in the case on the basis that actual or anticipated delays in the range of 18 months or more were inordinate and unacceptable.[5] Of course, each case must turn on its own facts, and there is no particular point at which a delay necessarily becomes inordinate. But such cases may nevertheless be of some assistance.
26 The precise delay here is not certain because of the degree of forward looking required. On a best case scenario, the applicant's trial would not commence until some 18 months after arrest. On a more realistic scenario, the applicant's trial is unlikely to commence until somewhere between 24 and 30 months after his arrest. When considered in combination with the other matters mentioned below, particularly the health of the applicant's wife, such a delay is so inordinate as to constitute exceptional circumstances.
The applicant's wife
27 The applicant relies upon the physical and mental condition of his wife, Josephine, who is 49 years old. Mrs Mustica suffers from constant and severe abdominal pain as a result of complications from surgery performed in December 2001, during which a hole was inadvertently cut in her bowel and bladder.
28 Since 2002, she has also suffered from depression and a panic disorder, which seems to have deteriorated with her husband's incarceration. Her GP reports that she is severely depressed (despite medication), cries most of the time, is unable to sleep and "seems to be falling apart". A psychiatrist, Dr Roger Chau, has seen her twice during October 2006, apparently for medico-legal rather than treatment purposes. He reports that she presented in a very distraught mental state, complaining that she was suffering from extreme emotional stress due to her husband's incarceration and feels she is falling apart. He notes that she met the applicant as a teenager, married him when she was 18, and has therefore spent most of her life with him.
29 As a result of her medical condition, Mrs Mustica is unable to work and receives a disability pension. Prior to his arrest, the applicant was his wife's principal carer, and received a carer's pension. His wife cannot drive herself or travel away from home without assistance. Whilst the solicitor's affidavit says that Mrs Mustica is "unable to handle most day-to-day chores and tasks alone", the assertion was left very vague, and I do not have a clear impression of the exact limits of her physical abilities. I am certainly not persuaded that she cannot physically care for herself if left alone in the house for many hours.
30 Two daughters, Anne-Marie (25) and Vanessa (22), live at home with the applicant and his wife. Anne-Marie is currently working as a factory production worker, primarily on nightshifts. Until a few months ago, she was working as an airport cleaner on day shifts. Vanessa works as a retail sales assistant for about 25 hours a week. Both expect to be working longer hours as Christmas approaches. They are close to their mother and help out where they can.
31 Mrs Mustica's medical and psychiatric conditions are not such that they would, in themselves, constitute "exceptional circumstances". Nevertheless, the personal circumstances of a close family member, such as a spouse, can heighten the effect of delay, and are something to which I have some regard in coming to a conclusion that exceptional circumstances are made out.
32 One further matter is that she is currently on a waiting list for an operation to remove gallstones from her bladder, which also cause her pain. She has been offered the opportunity to have exploratory day-surgery at the end of November 2006. She says she is not prepared to do so without her husband by her side. That is entirely a matter of personal choice, rather than necessity; accordingly, I give it no weight in my decision.
The applicant's health
33 The applicant is 53 years old. He had a heart attack in 2001 or 2002, and currently suffers from coronary heart disease, high blood pressure, high cholesterol, type 2 diabetes and sleep apnoea. He currently receives daily medication for these conditions. He suffered from prolapsed discs a few months ago, which results in continuing pain and discomfort.
34 Whilst the applicant has some complaints about the way in which prison staff administer his medication or test his blood sugar levels, I am not satisfied that such matters present a serious risk to his health.
35 I am not satisfied that any of his medical conditions are currently life-threatening or incapable of satisfactory treatment in a custodial environment. Accordingly, I would place little weight on this evidence, in considering whether exceptional circumstances have been established.
Ties to the jurisdiction
36 The applicant is an Australian citizen, who was born here. It is not alleged that he has any association with anyone or anything outside Australia.
37 He has close family in the jurisdiction, including his wife, working children, a mother and others. He speaks to his immediate family by phone every day, and they have visited him regularly in custody.
38 The applicant and his wife both went bankrupt in August 2005 and, according to their trustee in bankruptcy, have no realisable assets. They are in receipt of Centrelink benefits. Mr Mustica's only vehicle, a 1994 van, has been seized by police. The Crown does not allege that the applicant has any hidden wealth, rather that he has debts, including about $50,000 in drug debts.
39 His wife and daughters have only recently signed a 12 month lease in relation to the home in which he proposes to reside. Apparently he is also named as a tenant on the lease, although he has never been to the house. Their status as tenants is obviously a lesser tie to the jurisdiction than home ownership.
40 The applicant has previously held an Australian passport, which has since expired. The police are concerned that he may obtain a new passport, either lawfully (by simply requesting a replacement) or because he has "access to fraudulent passports." The source of this latter concern seems to be that investigators have located 2 passports in his son's name, with different expiry dates, and the assertion that Ramadan was "heavily involved in sourcing fraudulent forms of identification".
Previous criminal history
41 The applicant was last before a court in September 1978, when he was 24 years old. Between 1969 and 1978, he was charged under several different names, with a number of offences, generally of an assault or theft nature. None of his prior offences involve drugs. There is no history of failing to comply with any grant of bail.
Parity with co-accused
42 Two co-accused were charged and immediately bailed by the police. Three others were subsequently granted bail by a magistrate: Dave Sacco and Frank Rajic on 10 August 2006 and Pat Boca on 18 August 2006. Ismayel Ramadan has not applied for bail and remains in custody. The applicant and Ramadan are the only remaining defendants in custody.
43 At the hearing on 9 and 10 August 2006, the Crown did not oppose the grant of bail in the case of Sacco and Rajic, provided the magistrate was satisfied that exceptional circumstances existed. In the case of the applicant, the Crown strongly opposed bail and alleged there was an unacceptable risk of committing further offences and failing to appear. The magistrate found that exceptional circumstances existed in the case of Sacco and Rajic, but not in the case of the applicant. She did not go on to consider unacceptable risk.
44 The magistrate rejected a parity argument on the basis that "all other matters" were not equal as between the applicant and Sacco and Rajic. In particular, she said that the applicant had been charged with far more offences over a longer period of time, and was alleged to be a prime offender who had dealt in millions of dollars of drugs over a long period. She also noted that Sacco and Rajic were drug addicts, whereas the applicant's motive appeared to be profit only. As I am not sitting by way of appeal from the magistrate, it is not necessary for me to examine her Honour's reasons further.
45 The fact that the applicant faces additional charges and over a longer period of time may well mean that "all other matters are not equal".[6] Further, there are sufficient other differences between the applicant and the other two co-accused that I do not regard parity as an additional consideration in determining to grant bail.
The availability of substantial sureties
46 The applicant's brother, Carmelo Mustica, is willing to offer security over the property which is both his home and hobby farm, and in which he has equity of about $350,000.
47 The informant deposed that he had some reservations that if the brother's equity was derived from drug trafficking, then the chances of him honouring the surety would be significantly diminished. Yet when one examines the hard evidence in relation to his brother's involvement in drugs, it boils down to this: two minor charges in 1993 and 1994 for possessing and using cannabis. I am not satisfied on the material before me that there is a basis for serious apprehension that Carmelo's property may be tainted.
48 In any event, the applicant's mother, Anna Maria Mustica, has now indicated that she is also prepared to act as surety. She is the sole registered proprietor of her home in Fawkner, which appears to be worth at least $244,000.
49 There is no dispute that it is appropriate to require surety totalling $500,000 to be provided as a condition of bail. I will require that Carmelo Mustica provide a surety in the sum of $256,000 and Anna Maria Mustica provide a surety in the sum of $244,000.
Unacceptable risk