Applicant v Respondent

1 Omar Bchinnati 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"),[1] and one of negligently dealing with proceeds of crime, namely cash.[2]

2 The first two charges concern Mr Bchinnati's alleged involvement, in the early hours of 14 June 2016, in trafficking over 3,800 litres of BD. The chemical BD is used legitimately for industrial purposes, such as in the making of plastics and cleaning products. When consumed by humans, the chemical 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.[3] The commercial quantity threshold for BD is two litres.[4] 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 of $10,000 in cash on Mr Bchinnati's person when arrested on suspicion of the trafficking offences.

4 The Bail Act 1977 (Vic) provides that a court shall refuse bail on any charge if there is an unacceptable risk that the accused, if released on bail, would commit an offence, endanger the safety or welfare of members of the public, interfere with witnesses or fail to appear.[5] While Mr Grant, who appeared for the Director, submitted that the evidence demonstrated such risks, he conceded that conditions could be put in place such that the Court might not be satisfied that any such risk was at an unacceptable level. Mr Dane QC, who appears for Mr Bchinnati, submits that the Director has failed to establish unacceptable risks of such behaviour.

5 On the material before the Court, I am not satisfied that any such risks are at an unacceptable level. Various considerations, including the availability of strict conditions of bail and a surety of $500,000, drive me to that conclusion.

6 That, however, is not the end of the matter. For the Bail Act also provides that, in the case of a person charged with trafficking in a commercial quantity of a drug of dependence, a court shall refuse bail unless satisfied that exceptional circumstances exist which justify a grant of bail.[6] The onus of establishing exceptional circumstances rests with the applicant for bail.

7 Mr Dane submits that such exceptional circumstances have been established. He relies on a combination of matters, including the expected delay of two years between arrest and trial; the relative weakness of the case against Mr Bchinnati on the trafficking charges; and his personal circumstances, which include the opinions contained in the report of psychologist Dr Paul Grech. Mr Grant submits that that high threshold has not been reached on the evidence before the Court.

8 I have found this issue far more difficult. The long period of delay, when combined with weaknesses in aspects of the prosecution case, the opinions expressed by Dr Grech, the availability of a substantial surety and strict conditions, and all other considerations, is such that, were this a case in which Mr Bchinnati only had to show cause why his detention is not justified, I would grant bail. But the test is a higher one than that. As compelling as the factors I have just mentioned 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.

9 On 20 December 2016, I announced that I had determined to refuse bail, and gave brief reasons for that decision. With the consent of the parties, I deferred giving detailed reasons to a later date. My detailed reasons follow.

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

11 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.

12 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.

13 At 3:30 a.m., Mr Moustafa arrived in the Hiace at the rear of premises at which Munir 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. Mr 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.

14 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.

15 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.

16 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.

17 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 was the passenger in the Corolla, which was driven by Mr Obian. Both men ran from the car when police approached. Ten thousand dollars in cash fell from Mr Bchinnati's pocket as he ran. He was found hiding behind a nearby car. Ahmed Inusah and Patrick Formosa were found a short distance away from the Townace.

18 Inside the Hiace, police found 90 cardboard boxes and numerous other containers which, in total, contained 1,130 litres of BD. This discovery is the basis for one of the two charges 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".

19 At the rear of the premises in Racecourse Road, police found one 200-litre drum containing BD 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 other charge of trafficking in a commercial quantity of BD.

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

21 After his arrest, Mr Bchinnati was interviewed by police. He said that, at about 11:00 p.m. the night before, his girlfriend had dropped him off to Mr Moustafa, who was having relationship problems. He had known Mr Moustafa for about 18 months. He had been a passenger in a silver Corolla driven by Mr Moustafa. He said that Mr Moustafa got out of the car on a couple of occasions. Later, Mr Moustafa picked up another unknown person, who sat behind him. Mr Bchinnati said that he bought a kebab at about 1:30 a.m. and then fell asleep. When he awoke, another unknown male was the driver, who then ran out of the car and told him to run too. Mr Bchinnati followed and was arrested. There was no one else in the car. He denied going to any storage facilities and said he was sleeping.

22 He said that the $10,000 belonged to another person (whom he named) and was from a shop to pay council fees and rent.

23 After his arrest, Mr Bchinnati was charged with the offences the subject of the present application. He was also charged with other offences, including trafficking in a large commercial quantity of a drug of dependence and possessing precursor chemicals, but those charges are to be withdrawn at the committal hearing.

24 On 14 September 2016, Mr Bchinnati made an unsuccessful application for bail in the Magistrates' Court. The magistrate found that Mr Bchinnati 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.

25 Mr Bchinnati 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. The other three have been refused bail. They Messrs Moustafa, Obian and Omer. This Court heard and refused Mr Obian and Mr Omer's further applications for bail only relatively recently.[7]

26 The matter has been listed for a four-day committal hearing in respect of all ten accused in the Magistrates' Court commencing on 18 April 2017.

27 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. Mr Grant accepted that, given the number of accused and the likely complexity and duration of this trial, it is reasonable to act on the basis that Mr Bchinnati's trial may not conclude before June 2018. Mr Dane also accepted this estimate. Thus, there is an estimated delay of two years between arrest and trial.

28 Mr Bchinnati is aged 30. He has a criminal history for matters of violence and one drug-related matter. He has never been sentenced to a gaol sentence to be served immediately.

29 On 30 October 2006, Mr Bchinnati appeared before the Magistrates' Court charged with assault in company. Without conviction, he was placed on an undertaking to be of good behaviour for 12 months.

30 On 1 July 2009, Mr Bchinnati appeared in the County Court charged with intentionally causing serious injury, intentionally causing injury, assault and criminal damage. He was convicted and sentenced to two-and-a-half years' imprisonment, wholly suspended for two years.

31 On 25 March 2011, Mr Bchinnati appeared in the County Court charged with cultivating cannabis. He was convicted and sentenced to nine months' imprisonment, wholly suspended for 14 months.

32 On 2 June 2011, he appeared in the Magistrates' Court on a charge of breaching a community based order ("CBO") that had been imposed for a charge of driving whilst suspended. The CBO had been imposed after Mr Bchinnati had failed to pay the fine on the original charge. The CBO was cancelled and he was ordered to pay a fine again.

33 On 22 October 2015, he appeared in the Magistrates' Court on charges of affray and committing an offence whilst on bail. He was convicted and fined a total of $3,000.

34 At the time of his arrest, Mr Bchinnati was on bail on other charges. In particular, on 10 February 2016, he was charged with 32 offences, including handling stolen goods, recklessly dealing with proceeds of crime, using a carriage service to menace and committing an indictable offence while on bail. These offences were allegedly committed on 26 February 2015. Mr Bchinnati was bailed on these charges on 2 May 2016. The matter is listed for a contested committal hearing in the Magistrates' Court on 7 February 2017. On 27 September 2016, Mr Bchinnati's bail was revoked on these charges, presumably on the basis that he had been refused bail on the present matters a short while before.

35 On 29 June 2016, so about two weeks after his arrest on the present matters, Mr Bchinnati was charged with 11 offences, including conspiracy to defraud and obtaining, and attempting to obtain, property by deception. It is alleged that these offences were committed between June 2014 and March 2015. These charges arose out of the same investigation that gave rise to the charges laid on 10 February 2016. Bail has not been sought on those latest charges yet. They are listed for a contested committal hearing in the Magistrates' Court in August 2017.

36 Thus, if bail were granted on the present charges, Mr Bchinnati would remain in custody, at least in the short term. Mr Dane explained that, if that occurred, applications for bail then would be made on the other charges. He did not seek to have this Court determine all matters for bail at once. Mr Grant conceded that it was open to grant bail on the present charges even though Mr Bchinnati would remain in custody unless granted bail on the other matters.

38 Mr Grant submitted that there was an unacceptable risk that, if bailed, Mr Bchinnati would commit an offence, endanger the safety or welfare of members of the public, interfere with witnesses or fail to appear. In support of this submission, he relied on, among other things, the nature of the present charges and Mr Bchinnati's alleged involvement therein, his prior convictions, his history of failing to comply with his CBO and the fact that the present offences were allegedly committed while on bail. The informant also raised concerns in her evidence that Mr Bchinnati had shown that he was willing to obstruct police investigations by instructing potential witnesses not to assist police and by treating police with contempt. As I indicated earlier, Mr Grant also conceded that conditions could be put in place such that the Court might not be satisfied that any such risks were at an unacceptable level.

39 As for the suggestion that Mr Bchinnati might interfere with witnesses or the like, Mr Dane pointed out that the evidence implicating his client came from police surveillance, a CCTV camera and the discovery and analysis of the drugs, none of which could be affected by any such alleged behaviour. As for the risks of offending (and thereby endangering the public) and failing to appear, Mr Dane submitted that they were offset by the availability of strict conditions (including daily, or even twice-daily, reporting to police and a curfew), the provision of a stable residence with his partner or his mother, and the provision of a substantial surety. I accept that all of those things could be put in place.

40 On the question of a surety, I heard evidence from Hayat Bchinnati. Mrs Bchinnati is the applicant's mother. She owns her own home, which she estimates is worth about $500,000 to $550,000. The home presently has a mortgage over it with only $19,000 owing on the loan. Mrs Bchinnati offered to put up that equity in her house as surety. She also promised to advise the authorities if she became aware that her son failed to comply with his bail conditions. I accept Mrs Bchinnati's evidence.

41 For the reasons advanced by Mr Dane, I do not accept that, if bailed, there is any realistic risk that Mr Bchinnati could interfere with witnesses. Nor, on the material, does there appear to be any significant risk that he would fail to appear. He has strong ties to the jurisdiction through family and no convictions for failing to appear. In any event, I do not consider any such risk to be unacceptable. While I accept that there is a risk that he would offend if bailed, again, I am not satisfied that that risk is unacceptable. Rather, in my view, despite the seriousness of the alleged offending, several factors offset those risks to a level that it is not unacceptable. Those factors include the availability of strict bail conditions, a stable residence and a substantial surety.

42 Accordingly, if "unacceptable risk" were the only applicable test, I would grant bail.

43 But, of course, it is not. I turn now to the more difficult question of whether there are exceptional circumstances which justify a grant of bail.

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

45 First, the matters I have just mentioned that, in my view, warrant the conclusion that there is no unacceptable risk of behaviour of the type alleged by the Director, do not amount to exceptional circumstances. Individually and collectively, they are common considerations in most bail applications.

46 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 - BD charges

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

48 In my view, these charges are 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.

49 The first consideration arises in these circumstances. The trafficking alleged in these charges involves the possession and movement of the drugs for commercial purposes. There is no 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.[8] I do not say that that is a particular difficulty. Rather, it is just a reality that the prosecution will have to confront.

50 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.

51 That raises a third consideration, which may represent a potential weakness in the prosecution case against Mr Bchinnati. 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.[9] 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) Mr Bchinnati noticed the label on the drum, that might be some evidence that he knew the drug BD was involved.

52 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. While the police operation had been going for several months, Mr Bchinnati did not feature at all until the van first went to Mr Omer's premises in Racecourse Road in the early hours of 14 June.

53 On the other hand, it might be argued by the Director at trial that Mr Bchinnati's attempt to scarper demonstrates incriminating knowledge or belief as to the unlawfulness of the behaviour to which he was a party. Similarly, it might be argued that Mr Bchinnati's claims of being asleep are lies that also amount to incriminating knowledge or belief.

54 Thus, it is plain that there will be live issues in Mr Bchinnati'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.

55 A fourth consideration relied on by Mr Dane was that, given the evidence that Mr Bchinnati appears to have become involved in the alleged offending 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.

56 While I accept that it appears that Mr Bchinnati is a lesser and last-minute player, if he is convicted of these offences, it is still likely that he would receive a substantial prison 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 Bchinnati would end up doing more time on remand before trial than the length of the non-parole period he would receive if convicted.

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

58 A fifth consideration relied on by Mr Dane concerned the opinion of Dr Grech. In his report, which was received on the application without objection, Dr Grech said this:

Mr Bchinnati has a history of adult ADHD and bipolar disorder ([for which he was] previously prescribed mood stabilising medication sodium valproate and the stimulant dexamphetamine), but has not been medicated while in custody. ...

The examiner's clinical impression of Mr Bchinnati is that he suffers from untreated [ADHD]. Use of the Amen Clinic ADD Type Questionnaire (Amen, 2001) confirmed his innate difficulties in relation to sustaining concentration and attention, his distractibility, impulsivity, his restlessness, hyperactivity, and irritability, underlying agitation and labile mood. The probable dopaminergic and noradrenergic deficiencies typically associated with ADHD would most likely improve substantially clinically if Mr Bchinnati [were] re-medicated appropriately, with mood stabilising and stimulant medication, in conjunction with a renewal of cognitive behaviour therapy. ...

The late psychiatrist Dr Orchard noted that Mr Bchinnati's "story constitutes a tragedy", a sentiment shared by the examiner.

Keeping this man in custody is likely to have detrimental effects, but no clinical benefit, as he is unable to be appropriately medicated. Incarceration delays proper treatment and risks turning a troubled young man into a hardened criminal, potentiating the risk of recidivism, which, conversely, would be able to be significantly reduced in the context of medium to long term community-based treatment involving sustained psychiatric and psychological care. Mr Bchinnati presents as someone who would fully avail and re-commit himself to such an opportunity. ...

59 As troubling as it is that Mr Bchinnati has not been medicated while in custody, it seems that he ceased doing so well before he was arrested. Thus, as things presently stand, I do not consider that that state of affairs amounts to exceptional circumstances. I shall, however, return to this issue later in these reasons.

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

61 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.[10] But it is not impossible. Many a person has met that threshold and been granted bail.

62 I should also point out that I accept Mr Dane's submission to the effect that considerations such as delay and poor health can gain more prominence when considering a weaker case on, or a less serious example of, an alleged offence that attracts the exceptional circumstances threshold. Mr Grant also accepted the correctness of that submission.

63 In addition, I make it clear that I reject Mr Grant's submission that the availability of a surety is irrelevant to the question of exceptional circumstances. In my view, anything that is relevant to ensuring compliance with bail conditions - which a surety surely is - must also be relevant to the question whether there are exceptional circumstances justifying a grant of bail.

64 However, after a good deal of hesitation, I have concluded that I am not satisfied that that threshold has been reached in this case. While all of the factors in combination - including those compelling the view that the risk of offending on bail is not unacceptable, the long delay until trial, potential weaknesses in the prosecution case on trafficking in BD, Mr Bchinnati's lesser role in that alleged offending and the opinion of Dr Grech - amount to circumstances that would show cause why his detention is not justified,[11] I am not satisfied that they amount to exceptional circumstances. The BD charges allege very serious offences. In the circumstances of this case, it would take something more than has been put before me to amount to exceptional circumstances justifying a grant of bail.

65 That said, I wish to add the following. Among the factors relied on by Mr Dane, there are two in particular that trouble me most. First, there 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 Bchinnati might consider a further application for bail.

66 Secondly, despite the fact that it appears that Mr Bchinnati ceased taking his prescribed medication before his arrest, in view of Dr Grech's opinion as to Mr Bchinnati's current presentation, I am concerned that he has not been medicated while on remand. In so far as I have the power to do so, and I am not sure that I do, I direct the prison authorities to ensure that Mr Bchinnati receives any medication that may be prescribed in the future for the conditions described by Dr Grech. If, in the future, Mr Bchinnati is prescribed such medication but is prevented from receiving that medication while on remand, he might consider a further application for bail.

67 Accordingly, despite my conclusion on unacceptable risk and despite my concerns about delay and the matters raised by Dr Grech and all other considerations pointing towards a grant of bail, I must refuse the application.

[1] Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[2] Contrary to s 194(4) of the Crimes Act 1958 (Vic).

[3] 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).

[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). There is no offence of trafficking in a large commercial quantity of BD.

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

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

[7] See Obian v DPP [2016] VSC 607 (Lasry J's judgment of 6 October 2016); and Omer v DPP [2016] VSC 762 (which is my judgment of 9 December 2016).

[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 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).

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

[11] 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)).