Applicant v Respondent

Supreme Court of Victoria|2016-12-09|Before: Croucher J

CRIMINAL LAW - Application for bail - Charges of trafficking in a commercial quantity of drugs of dependence, namely methylamphetamine (about 150 grams pure) and 1,4-butanediol ("BD") (3,852 litres) - BD valued at nearly $4 million - Whether exceptional circumstances justifying bail - Whether applicant, if bailed, presents an unacceptable risk of offending and endangering public - Serious charges - Prior criminal history of using and trafficking drugs - Expected delay of up to two years between arrest and trial - Weaknesses in some aspects of prosecution case - Surety of $180,000 offered - Some co-accused on bail, others not - Bail refused - Bail Act 1977 (Vic), ss 4(2)(aa)(i) and (d)(i); Drugs, Poisons and Controlled Substances Act (Vic), , (1), (2) and and of Schedule 11.

1 Munir Omer applies for bail. He is charged with various offences, including two counts of trafficking in a commercial quantity of a drug of dependence, namely 1,4-butanediol ("1,4 BD" or "BD"), and one of trafficking in a commercial quantity of another drug of dependence, namely methylamphetamine.[1]

2 The first two charges concern Mr Omer's alleged involvement, in the early hours of 14 June 2016, in trafficking over 3,800 litres of BD. The drug BD is used legitimately for industrial purposes, such as in the making of plastics and cleaning products. When consumed by humans, the drug metabolizes and has an effect similar to the illegal drug 4-hydroxybutanoic acid (commonly known as "GHB"). Under Victorian law, BD is regarded as a drug of dependence only if possessed or trafficked for human consumption and not for a lawful industrial purpose.[2] The commercial quantity threshold for BD is two litres.[3] If sold in one-litre amounts, the value of the BD seized would be nearly $4 million.

3 The third charge concerns the alleged discovery, inside a safe in Mr Omer's bedroom, of 205 grams of powder containing 75 percent methylamphetamine (or about 150 grams pure). The commercial quantity threshold for that drug is 100 grams pure or, when mixed with or contained in another substance, 500 grams in total.[4]

4 By operation of the Bail Act 1977 (Vic), in the case of a person charged with such offences, the Court shall refuse bail unless satisfied that exceptional circumstances exist which justify a grant of bail.[5] Further, the same Act requires the Court shall refuse bail on any charge if there is an unacceptable risk that the accused, if released on bail, would commit an offence or endanger the safety or welfare of members of the public.[6]

5 While, in light of Mr Omer's criminal history and the circumstances of the alleged offences, I am satisfied that there is some risk that, if released on bail, he would commit an offence of drug-trafficking and thereby endanger others, I am not satisfied that such risks are at an unacceptable level given, among other things, the strict bail conditions that could be put in place and the availability of a substantial surety.

6 However, I am not satisfied there are exceptional circumstances which justify a grant of bail. While it will be cold comfort to Mr Omer, I reach this conclusion with some hesitation. The expected delay between his arrest and his trial in the County Court is in the order of two years. That unfortunate period of delay, when combined with the availability of a surety and strict conditions, weaknesses in aspects of the prosecution case and all other considerations, is such that, were this a case in which Mr Omer only had to show cause why his detention is not justified, I would have granted bail. But the test is a higher one than that. As compelling as those factors may be, and as troubling as it is that it is almost commonplace that a person has to wait two years without bail for a trial on serious charges, those factors, either alone or in combination, do not, in my judgment, amount to exceptional circumstances. Accordingly, I must refuse the application.

8 I turn first to a summary of the alleged offending.

9 On 13 June 2016, police found a substantial quantity of drugs of dependence at a storage facility in Lygon Street, Brunswick, which was leased by Khaled Moustafa. The same day, police commenced surveillance on another storage facility, also believed to be utilised by Mr Moustafa, in Ashley Street, Braybrook. Police had been watching Mr Moustafa for at least six months.

10 At 12:40 a.m. the next morning, a Toyota Hiace van was rented for two days by Saer Obian in the name of Min Chen.

11 At 3:30 a.m., Mr Moustafa arrived in the Hiace at the rear of premises at which Mr Omer was living on Racecourse Road, Flemington. Mr Omer opened the rear gate of the premises, allowing Mr Moustafa to reverse the Hiace into the yard. Omar Bchinnati and Mr Obian walked through the gate. All four men removed from the Hiace several boxes and a silver barrel. Mr Moustafa and Mr Omer then left in the Hiace, while Mr Bchinnati and Mr Obian were seen to leave on foot.

12 At 4:10 a.m., the Hiace and a Toyota Corolla (registered to Mr Moustafa's brother) arrived at the storage facility in Ashley Street. Items were loaded into the Hiace.

13 At 4:41 a.m., both the Hiace and the Corolla arrived at Mr Omer's premises for a second time. Again, all four men were involved in unloading boxes from the van and into the yard.

14 At 5:00 a.m., the Hiace and the Corolla left the premises. After stopping at a petrol station briefly, the vehicles travelled to Ashley Street again. A third vehicle, a Toyota Townace van with stolen registration plates, also arrived.

15 At 5:30 a.m., the three vehicles left the storage facility. Police then intercepted all three vehicles and arrested the occupants. Mr Omer and Mr Moustafa were in the Hiace. Mr Bchinnati and Mr Obian were in the Corolla. Ahmed Inusah and Patrick Formosa were in the Townace.

16 Inside the Hiace were 90 cardboard boxes and numerous other containers which, in total, contained 1,130 litres of BD. This discovery is the basis for the first charge of trafficking in a commercial quantity of BD. Also found in the van were a packed-up clandestine laboratory, personal cards in the name of Mr Moustafa, $2,200 in cash, police vests and handcuffs, and eight green pills stamped "DM5".

17 At the rear of the premises at which Mr Omer was staying in Racecourse Road, police found one 200-litre drum and multiple cardboard boxes containing one-litre bottles of BD. The total quantity of BD at the rear of Mr Omer's premises was 2,722 litres. This is the basis for the second charge of trafficking in a commercial quantity of BD.

18 While this does not appear to form part of the charges against Mr Omer, I note also that, inside the storage premises at Ashley Street, police found another three 200-litre drums containing BD (600 litres in total).

Trafficking in a commercial quantity of methylamphetamine

19 On the second floor of the premises at Mr Omer's address, police found Elizabetha Trimboli. During the search, Ms Trimboli opened a coded safe in the bedroom. In that safe, police found personal papers in the name of Mr Omer and about 205 grams of a substance containing 75 percent methylamphetamine. This discovery is the basis for the charge of trafficking in a commercial quantity of methylamphetamine.

20 Also found in the safe were a quantity of cannabis, some items of jewellery and electronics and some cash, the latter of which resulted in additional charges of handling stolen goods and dealing with the proceeds of crime.

21 After his arrest on 14 June 2016, Mr Omer was charged with the offences the subject of the present application. He was also charged with offences of trafficking in a large commercial quantity of a drug of dependence and possessing precursor chemicals, but those charges were withdrawn recently.

22 On 24 October 2016, Mr Omer made an unsuccessful application for bail in the Magistrates' Court. The magistrate found that Mr Omer presented an unacceptable risk of offending whilst on bail. Given that conclusion, his Honour did not make a finding as to whether exceptional circumstances had been established.

23 Mr Omer has nine co-accused. Each is charged with similar offences, but no two have precisely the same array of charges. Six have since been granted bail. They are Daniela Acevedo, Belal Allouche, Patrick Formosa, Ahmed Inusah, Walhan Kaake and Elizabetha Trimboli. Three have been refused bail. In addition to Mr Omer, they are Messrs Moustafa, Obian[7] and Bchinnati.

24 The matter has been listed for a four-day committal hearing in the Magistrates' Court commencing on 18 April 2017.

25 In the affidavit filed on behalf of the Director, it is said that statistics show that the average time between committal and trial in the County Court for in-custody trials of all durations is eight months. On that estimate, the trial could not get on before then end of 2017. Given that information, other information the parties have sought, the number of accused, the likely complexity and duration of this trial and the possibility of severance (which I shall come to shortly), it is reasonable to act on the basis that Mr Omer's trials may not conclude before June 2018. Thus the estimate of two years between arrest and trial.

26 Mr Omer is aged 30. He has a criminal history connected with the use of drugs, albeit that behaviour has commenced relatively late in life.

27 On 27 January 2015, Mr Omer appeared before the Magistrates' Court charged with possessing heroin, cocaine and MDMA, trafficking in cannabis and possessing an unregistered handgun (a sawn-off shotgun), ammunition and a prohibited weapon (a samurai sword). The offences occurred in July 2014. He was convicted and placed on a community correction order ("CCO") for 12 months, which included a drug assessment or treatment condition.

28 On 6 November 2015, Mr Omer appeared before the Magistrates' Court on a charge of obtaining a financial advantage by deception. The offence occurred in 2012. He was convicted and sentenced to six months' imprisonment, wholly suspended for two years. On an appeal to the County Court on 15 August 2016, that sentence was varied to release on an undertaking for 12 months.

29 On 13 January 2016, Mr Omer appeared in the Magistrates' Court on charges of possessing heroin, methylamphetamine and amphetamine, dealing with proceeds of crime and breaching the CCO. The new offences occurred on 20 July 2015. On the new charges and a re-sentencing on the old charges, he was placed on a CCO for two years.

30 A report on Mr Omer's progress on that CCO showed a mixed performance. On the one hand, he had completed a goodly amount of unpaid community work and had presented as not requiring further drug treatment. On the other, he had incurred numerous unacceptable absences. Overall, his response to the order was considered unsatisfactory by the Corrections Officers who wrote the report.

31 On 26 May 2016, Mr Omer was charged with theft, obtaining property by deception, dealing with proceeds of crime and trafficking methylamphetamine. It is alleged that Mr Omer was recruited by another man to return goods to a Bunnings store, when those goods had already been stolen from the store by his recruiter. The trafficking charge concerns the discovery of about five grams of methylamphetamine and digital scales at Mr Omer's premises when arrested. Mr Omer was on bail on these charges when the offences the subject of this application were allegedly committed.

32 In addition, if found guilty of any of the present charges, he would be in breach of the CCO imposed in January 2016.

33 Mr Albert, who appeared on behalf of the Director, submitted that there was an unacceptable risk that, if bailed, Mr Omer would commit further offences of drug-trafficking and thereby endanger the community. In support of this submission, he relied on, among other things, the nature of the present charges and Mr Omer's alleged involvement therein, his prior convictions, his history of failing to comply with his CCO and the fact that the present offences were allegedly committed while on bail. The informant also raised a concern in her evidence that Mr Omer's prior convictions connected with drug offending included possession of a sawn-off shotgun and a samurai sword.

34 Mr Pena-Rees, who appeared for Mr Omer, submitted that the risks of offending could be rendered acceptable by strict conditions (including daily reporting to police and a curfew), the provision of a stable residence with his sister and her husband, the fact that he would have employment, the general support he would have in the community from his family, friends and others in the Melbourne-Eritrean community, the support he would have from a drug counsellor and a case manager from the Muslim Connect Programme, and the provision of a substantial surety. I accept that all of those things could be put in place. Mr Pena-Rees also tendered a drug screen completed by Mr Omer on 14 July 2016, which showed a negative reading for the more common illicit drugs.

35 On the question of a surety, I heard evidence from Aiman Jabir. Mr Jabir is married to Mr Omer's aunt. He has known Mr Omer for over 20 years, although he did not know about his criminal history until he came to this hearing. He works as a forklift operator, and did so previously with Mr Omer. Mr Jabir owns his own home, which he estimates is worth about $450,000. After deducting the mortgage over it, he said he has equity in the order of $180,000. He offered to put up that equity in his house as surety. He also promised that he would advise the authorities if he became aware that Mr Omer were committing offences. I accept Mr Jabir's evidence.

36 Mr Albert pointed out that Mr Jabir was likely to be a witness in respect of the criminal charges, as he provided a statement to police to the effect that his family owned the premises at which Mr Omer was living in Racecourse Road (below which was their fruit shop). He submitted that it would be unsatisfactory that Mr Jabir also acts as a surety, as there is a risk that, in monitoring Mr Omer, they might discuss the case and thereby risk influencing Mr Jabir's evidence.

37 I do not agree. The usual bail condition - that the accused is not to contact any witnesses for the prosecution - could have Mr Jabir as an exception, and Mr Omer could be directed not to discuss the case with him. There seemed to be no dispute that Mr Omer was living at the address anyway. While I agree that it is not ideal to have a potential witness as a surety, in this particular case, I am satisfied that Mr Jabir would be an appropriate person to be a surety.

38 On the material before me, while I accept that there is a risk that Mr Omer would offend if bailed, I am not satisfied that that risk is unacceptable. Rather, in my view, despite the seriousness of the alleged offending, the following factors offset that risk to a level that it is not unacceptable: the availability of strict bail conditions, accommodation, employment, support in the community from family, friends and professionals and a substantial surety.

39 I turn now to the question whether there are exceptional circumstances which justify a grant of bail.

40 I shall consider the factors relevant to that question individually first and then in combination.

41 First, the matters I have just mentioned that, in my view, adequately offset the risk of offending on bail to warrant the conclusion that I am not satisfied that there is an unacceptable risk of such behaviour, do not amount to exceptional circumstances. Individually and collectively, they are common considerations in most bail applications.

42 Secondly, as I have said, there is the estimated delay of up to two years between arrest and trial. While that is regrettable, it is not exceptional. Unfortunately, it is not at all uncommon for delays of this order in the hearing of trials involving numerous accused and other complexities.

Strength or otherwise of prosecution case - Methylamphetamine charge

43 Thirdly, I turn now to the strength or otherwise of the prosecution case on the charge of trafficking in a commercial quantity of methylamphetamine.

44 As I see it, this charge suffers from at least two significant potential weaknesses. First, the informant accepted in cross-examination that Ms Trimboli, who shared the relevant bedroom with Mr Omer, claimed that the methylamphetamine found in the safe was hers. While I need not stay to consider how that evidence might become admissible in Mr Omer's trial, it is sufficient to say that, if a jury heard such evidence and could not exclude the reasonable possibility that Ms Trimboli alone possessed the drugs, Mr Omer would have to be acquitted.

45 The second weakness arises in these circumstances. Since there is no evidence of an act of selling or the like, the prosecution case must rely on possession for sale to establish trafficking.[8] Even if the prosecution establishes that Mr Omer was knowingly in possession of those drugs - whether jointly or alone - there still cannot be a conviction, for a commercial quantity offence, unless it is also proved that he knowingly had in his possession for sale what amounts to a commercial quantity of methylamphetamine.[9] Given that, in this case, the prosecution can rely on only the pure weight of the drugs to exceed the commercial quantity threshold, it must be proved that Mr Omer knew or believed that the pure amount of methylamphetamine within the substance exceeded 100 grams. This, in turn, requires proof that he had a sufficient state of knowledge or belief about the level of purity of the substance to conclude that it exceeded 100 grams of methylamphetamine. That strikes me as a high hurdle to clear.

46 While I do not say that the prosecution case is hopeless on this charge, it is plain that it is weak. On the other hand, if only the second of the two weaknesses identified materialized, the alternative charge of trafficking simpliciter would still be available. But that, of course, is a less serious charge.

47 In view of these difficulties, the long delay until trial and the other matters to which I have referred, I would grant bail if Mr Omer were charged with only this offence. In such a case, there would be exceptional circumstances vis-à-vis the charge laid.

48 I should add this. It is plain that this charge will have to be heard separately from the BD charges. As I understand it, such a trial would involve only Ms Trimboli and Mr Omer. It would have to be a short trial. Hopefully, in those circumstances, there would be an opportunity to have that trial heard at a much earlier stage than the forecast given with respect to the super-trial concerning the discovery of the BD.

Strength or otherwise of prosecution case - BD charges

49 Fourthly, I turn now to the strength or otherwise of the prosecution case on the charges of trafficking in a commercial quantity of BD.

50 In my view, these charges are also not without their difficulties; but those difficulties are not of an order that cause me to conclude that exceptional circumstances have been established. Indeed, some aspects of the prosecution case on these charges are quite strong.

51 The first consideration arises in these circumstances. Mr Albert explained that the trafficking alleged in these charges involves the possession and movement of the drugs for commercial purposes. However, while the second charge involves Mr Omer allegedly being involved in collecting from the storage facility and moving the third van-load of BD, the first charge involves him merely receiving in his back yard, and then possessing, the first van-load and then being involved in collecting, moving, receiving and possessing the second van-load. I was not told of any evidence of past or future sales of BD or the like. While the physical movement of the BD might inform the purpose of its possession, in the end, it seems to me that each charge really is alleging trafficking based on possession for sale. I do not say that that is a particular difficulty. Rather, it is just a reality that the prosecution will have to confront.

52 Secondly, given the massive amount of BD involved as compared with the commercial quantity threshold (thousands of litres compared with two), there will be a strong case of trafficking in a commercial quantity, provided the drugs are proven to have been possessed for sale.

53 That raises a third consideration, which may represent a potential weakness in the prosecution case against Mr Omer. I mentioned earlier that BD is regarded as a drug of dependence only if possessed or trafficked for human consumption and not for a lawful industrial purpose.[10] Thus, the BD could not be in his possession for sale unless he knew he was possessing BD and that the purpose of that possession was not for a lawful industrial purpose but for sale for human consumption. The 200-litre drum dropped off at Mr Omer's premises in the first van-load was marked "1,4 butanediol". The boxes were unmarked. So, if (in the dark) he noticed the label on the drum, that might be some evidence that he knew the drug BD was involved.

54 But, even if he did know it was BD, that does not answer the question whether he was a party to possessing the drug without a lawful industrial purpose and instead for sale for human consumption. There is evidence that this particular batch of BD was imported into Australia as a cleaning product. The informant accepted that, while the police operation had been going for several months, Mr Omer did not feature at all until the van first went to his premises in the early hours of 14 June. It might be said that it is hard to imagine that a person would knowingly allow a massive consignment of illegal drugs to be stored at his premises. Put another way, it could be argued that only an innocent person would be gullible enough to allow the storage of such a vast amount of BD at his premises. That said, experience tells that criminal stupidity knows no bounds.

55 Thus, it is plain that there will be live issues in Mr Omer's trial as to his knowledge or belief concerning the contents of the drum and boxes and as to the purpose for which they were possessed. However, this does not mean that the case on these charges is weak. Nor, in my judgment, is it a matter that amounts to exceptional circumstances.

56 A fifth consideration relied on by Mr Pena-Rees was that, given the evidence that Mr Omer appears to have become involved in the storage of the BD only at the last minute, on any view of things, he must be regarded as a lesser player than some of his co-accused. I should add that there is no evidence before me that he had any commercial interest in the alleged offending.

57 While I accept that it appears that Mr Omer is a lesser and last-minute player, if he is convicted of these offences, it is still likely that he would receive a substantial sentence, particularly in light of his criminal history and the amount and value of the drugs involved. Indeed, I do not think it could be said that there is any risk that Mr Omer would end up doing more time on remand before trial than the length of the non-parole period he would receive if convicted.

58 Thus, I do not consider that Mr Omer's lesser role in the alleged offending to be an exceptional consideration.

59 I turn now to my consideration of all matters urged in combination.

60 Before doing so, I note that, while the threshold of "exceptional circumstances" is very high, it should not be set so high that it is impossible for a person charged with offences that attract that test ever to be granted bail.[11] But it is not impossible. Many a person has met that threshold and been granted bail.

61 However, after a good deal of consideration, I have concluded that I am not satisfied that the threshold has been reached in this case. While the factors compelling the view that the risk of offending on bail is not unacceptable, when combined with the long delay until trial, weaknesses in the prosecution case and Mr Omer's lesser role in the alleged BD offending, amount to circumstances that would show cause why his detention is not justified,[12] I am not satisfied that they amount to exceptional circumstances. The BD charges allege very serious offences. In the circumstances alleged in this case, it would take something more than has been put before me to amount to exceptional circumstances justifying a grant of bail.

62 Among the factors relied on by Mr Pena-Rees, most troubling to me is the long delay until trial. It is unsatisfactory that an accused person should have to wait two years in custody between arrest and trial. Hopefully, that estimate proves to be inaccurate, and the trial gets on much sooner than that. If it proves to be an under-estimate, Mr Omer might consider a further application for bail.

63 Accordingly, despite my conclusion on unacceptable risk and despite my concerns about delay and other matters, I must refuse the application.

[2] See the definition of "drug of dependence" in s 4(1) and the words in the second set of parentheses after the words "1,4 BUTANEDOIL" in Column 1 of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[3] See the definition of "commercial quantity" in s 70(1) and Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). There is no offence of trafficking in a large commercial quantity of BD.

[4] See the definition of "commercial quantity" in s 70(1) and Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[5] See s 4(2)(aa)(i) of the Bail Act 1977 (Vic).

[6] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).

[7] See Obian v DPP [2016] VSC 607 (Lasry J).

[8] See the definition of "traffick" in s 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Section 73(2) may also be called in aid of proof of trafficking.

[9] See Momcilovic v The Queen (2011) 245 CLR 1; and DPP Reference No 1 of 2004; R v Nguyen [2005] VSCA 172; (2005) 12 VR 299.

[10] See the definition of "drug of dependence" in s 4(1) and the words in the second set of parentheses after the words "1,4 BUTANEDOIL" in Column 1 of Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[11] See, e.g., Lasry J's survey of authority on "exceptional circumstances" in Obian v DPP [2016] VSC 607 at [25]- [34].

[12] Which would be the applicable test were he charged with trafficking simpliciter (see ss 4(4)(ca) and (cd) of the Bail Act 1977 (Vic)).

At a glance

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Judgment (79 paragraphs)

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