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[2017] VSC 620
Supreme Court of Victoria
2017-09-15
Croucher J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Second application to this Court - Charge of trafficking in a commercial quantity of drug of dependence, namely 1,4-butanediol - Unrelated charges of fraud - Whether exceptional circumstances justifying bail - Whether applicant, if bailed, presents an unacceptable risk of, inter alia, interfering with witnesses - Delay of two years between arrest and completion of trial on drugs charge - Whether hardship to applicant because of absence of medication for ADHD while in custody makes delay more significant - Co-accused facing additional serious drugs charges bailed in interim - Surety of $500,000 offered - Bail granted on strict conditions - Bchinnati v DPP [2016] VSC 815.
1 Omar Bchinnati applies for bail. This is his second such application to this Court in effectively the same matter.
2 On 15 December 2016, I heard Mr Bchinnati's first bail application to this Court on two charges of trafficking in a commercial quantity of a drug of dependence, namely 1,4-butanediol ("BD"),[1] and a charge of negligently dealing with proceeds of crime, namely $10,000 in cash[2] (together "the drugs and proceeds of crime charges"). While it was a close-run thing, and despite various considerations pointing towards release, including an expected delay between arrest and trial of two years, I was not satisfied that Mr Bchinnati had established the existence of exceptional circumstances justifying a grant of bail.[3] Accordingly, on 20 December 2016, I refused the application.[4]
3 On 14 and 15 September 2017, I heard the present application - which was Mr Bchinnati's second application to this Court on effectively the same charges,[5] and his first application on unrelated charges alleging fraud ("the fraud charges").[6] In the interim, Mr Bchinnati had been committed for trial in the County Court on the drugs and proceeds of crime charges. That trial is listed to commence on 4 April 2018, and has an expected duration of about eight weeks. Given that Mr Bchinnati was arrested on 14 June 2016, the trial listing in effect confirmed the earlier expected two-year delay between arrest and completion of trial.
4 Two other particularly notable events have occurred since Mr Bchinnati was last before this Court. First, there has been no treatment, with medication, of Mr Bchinnati's ADHD. This, in turn, has made the long delay awaiting trial more burdensome than I had anticipated on the previous application. Secondly, a co-accused, Saer Obian, has been granted bail. He is charged not only jointly with Mr Bchinnati with the same drug-trafficking offence, but also with two additional serious instances of like drug-trafficking offences. As will be seen, these two factors in particular, when taken together with other considerations, have caused me to reach a different conclusion on this occasion. For, while it was a close-run thing again, I was satisfied that Mr Bchinnati had established exceptional circumstances justifying a grant of bail.
5 Further, I was not satisfied that there was an unacceptable risk that, if released on bail, Mr Bchinnati would commit an offence, endanger the safety or welfare of members of the public, interfere with witnesses or fail to appear.[7]
6 Accordingly, on 15 September 2017, I granted bail upon a surety of $500,000 and with numerous strict conditions.
7 I gave brief ex tempore reasons for my decision but indicated I would publish more detailed reasons at a later date. These are those reasons.
8 I turn first to a summary of the alleged offending giving rise to the two sets of charges.
9 First, I shall deal with the drugs and proceeds of crime charges.
10 Originally, in addition to the proceeds of crime charge, Mr Bchinnati was charged with two offences of trafficking in a commercial quantity of BD. Following the committal, however, the two drugs charges appear to have been collapsed into the one charge for the purposes of the trial indictment. That particular charge (Charge 9) is laid jointly against Mr Bchinnati and five of his co-accused - namely, Khaled Moustafa, Munir Omer, Ahmed Inusah, Patrick Formosa and, as I said earlier, Mr Obian. The indictment also contains the proceeds of crime charge against Mr Bchinnati alone (Charge 10), as well as numerous other charges laid jointly or alone against a total of six co-accused.
11 The drugs charge against Mr Bchinnati (and the five co-accused) concerns their alleged involvement, in the early hours of 14 June 2016, in trafficking over 3,800 litres (or kilograms) 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.[8] The commercial quantity threshold for BD is two kilograms.[9] If sold in one-litre amounts, the value of the BD seized would be nearly $4 million.
12 More particularly, the prosecution case is as follows. By way of background, 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 Mr Moustafa. This discovery has given rise to several charges against Mr Moustafa alone on the indictment, including large commercial, commercial or simpliciter trafficking charges relating to the drugs BD (56 kilograms - Charge 4), ecstasy (11 kilograms - Charge 6), methylamphetamine (1.3 kilograms - Charge 7) and cannabis (9.5 kilograms - Charge 8) and a charge of possession of items and chemicals for the purposes of trafficking (Charge 5).[10]
13 It is also alleged that Mr Obian had been involved, via his company, in importing over 800 litres (or kilograms) of BD in July 2015 and a further 17,000 or so litres (or kilograms) of BD in November 2015. Two charges against Mr Obian alone on the indictment (Charges 1 and 2) allege that, as a result of his handling of those amounts of BD, he trafficked in a commercial quantity of BD.
14 It is further alleged that, upon becoming aware that police had executed a search warrant at the storage facility in Lygon Street on 13 June 2016, Mr Moustafa decided to move large amounts of BD he was holding at two other storage facilities to the rear of premises occupied by Mr Omer.
15 And so it was that, around 2:00 a.m. the next morning, 14 June 2016, Mr Moustafa and Mr Obian arrived at Kennards Self Storage, 159 Racecourse Road, Flemington, in a Toyota Hiace van Mr Obian had rented about an hour earlier. They removed a number of boxes and a silver drum from a storage unit and loaded them into the van.
16 At 3:30 a.m., Mr Moustafa arrived in the same Hiace van at the rear of premises at which Mr Omer was living at 296 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 several boxes and a silver drum from the Hiace. Mr Moustafa and Mr Omer then left in the Hiace, while Mr Bchinnati and Mr Obian left on foot.
17 At 4:10 a.m., the Hiace van, and a Toyota Corolla (registered to Mr Moustafa's brother), arrived at a storage facility at Public Self Storage, 7 Ashley Street, Braybrook. Items were loaded into the Hiace.
18 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.
19 At 5:00 a.m., the Hiace and the Corolla left the premises. After stopping at a petrol station briefly, the vehicles travelled again to Public Self Storage in Ashley Street. A third vehicle, a Toyota Townace van with stolen registration plates, also arrived.
20 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 van. Mr Bchinnati was a passenger in the Corolla, which was driven by Mr Obian. Both men ran from the car when police approached. As he fled, $10,000 in cash fell from Mr Bchinnati's pocket. He was found hiding behind a nearby car. Mr Inusah and Mr Formosa were found a short distance away from the Townace.
21 Inside the Hiace, police found, amongst other things, 90 cardboard boxes and numerous other containers which, in total, contained 1,130 litres (or kilograms) of BD. At the rear of Mr Omer's 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 found at the rear of those premises was 2,722 litres (or kilograms). Thus, the total amount of BD the subject of the trafficking charge is 3,852 litres (or kilograms).[11]
22 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.
23 In answer to the proceeds of crime charge, Mr Bchinnati said that the $10,000 belonged to another person (whom he named) and was from a shop to pay council fees and rent.
25 On 29 June 2016, while in custody on the drugs and proceeds of crime charges, Mr Bchinnati was charged with eleven offences, comprising a charge of conspiracy to defraud and, in the alternative, ten charges of obtaining, or attempting to obtain, property by deception.
26 It is alleged that, between 6 June 2014 and 18 March 2015, Mr Bchinnati and others in the automotive repair industry were involved in making fraudulent claims on motor vehicle insurance. According to the police summary and charges, the total amount of money allegedly obtained is nearly $50,000 and the total amount of money the subject of attempted claims is about $180,000.
27 I turn now to some aspects of the procedural history of these matters.
28 Three months after his arrest on the drugs and proceeds of crime charges, 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 consider it necessary to make a finding as to whether exceptional circumstances had been established.
29 At the time of his alleged commission of the drugs and proceeds of crime charges, Mr Bchinnati was on bail for a series of dishonesty charges laid in February 2016. He was discharged on some of those charges at a subsequent committal hearing and committed for trial on others. Further, after numerous mentions in the County Court, the remaining charges were discontinued by the Director ultimately on 18 May 2017.
30 As a result of the existence of these charges, Mr Bchinnati was, at the time of the initial application before me, also in a "show cause" position.[12] Further, despite the withdrawal of those charges, at the time of the subsequent application before me, Mr Bchinnati may well still have been in a "show cause" position. But whether that was so was, and remains, unnecessary to determine, because the exceptional circumstances threshold is regarded as the higher of the two thresholds anyway.
31 The only remaining relevance of the fact that Mr Bchinnati was on bail at the time of the alleged commission of some of the offences on which he now seeks bail is twofold. First, that fact is a matter capable of going to whether there is an unacceptable risk of, for example, offending while on bail, which in turn also may affect the question whether exceptional circumstances have been established. As it happens, while it is a matter to which I have had regard, it is a comparatively minor consideration in this case, and is not such as to cause bail to be denied.
32 Secondly, there is some evidence, from Mr Bchinnati's psychologist Dr Paul Grech, whose evidence I accept, that the protracted delay and numerous mentions involved in the resolution of that matter have added to the hardship of Mr Bchinnati's time on remand resulting from his untreated ADHD. However, this particular aspect of the delay between arrest and trial, while relevant, is a comparatively minor consideration in the overall scheme of things, and, again, is not determinative of the application. Instead, as will be seen, it is the fact that Mr Bchinnati's ADHD has remained untreated with medication that has added to the burden of his time on remand and the significance of the two-year delay until trial.
Refusal of bail (again) by committing magistrate
33 On 7 June 2017, Mr Bchinnati was committed for trial on the drugs and proceeds of crime charges. The committing magistrate also refused Mr Bchinnati's fresh application for bail. While his Honour was not satisfied of any unacceptable risk of offending on bail or the like, he was also not satisfied that Mr Bchinnati had established the necessary exceptional circumstances to justify a grant of bail.
Committal on fraud charges adjourned to January 2018
34 The fraud charges (which, as I have said, were laid soon after his arrest on the drugs and proceeds of crime charges) arose out of the same investigation that gave rise to the dishonesty charges that were laid in February 2016 and ultimately withdrawn in May 2017. The fraud charges were listed for a committal hearing on 7 August 2017. However, that committal hearing was adjourned until 18 January 2018 because the prosecutor became unavailable as a result of a car accident. The parties accepted that, if Mr Bchinnati were committed for trial, it is unlikely that a trial would be heard before the end of 2018. This (previously unexpected) further delay in the resolution of all charges is another factor that goes into the mix of matters I have considered on this application, but, again, it is not determinative of the application.
35 In respect of the drugs and proceeds of crime matter, Mr Bchinnati has nine co-accused, six of whom are charged on the same indictment. Each is charged with similar offences, but no two have precisely the same array of charges. At the time of Mr Bchinnati's previous bail application to this Court, six co-accused had been granted bail. They were Daniela Acevedo, Belal Allouche, Walhan Kaake, Elizabetha Trimboli, Mr Formosa and Mr Inusah. The other three - Mr Moustafa, Mr Obian and Mr Omer - had been refused bail by the Magistrates' Court. This Court also had heard and refused Mr Obian and Mr Omer's further applications for bail in October and December 2016.[13]
36 Following the (joint) committal hearing earlier this year, Mr Obian was granted bail by the committing magistrate. As I indicated earlier, as well as being charged on the indictment in common with Mr Bchinnati and others with trafficking in a commercial quantity of BD on 14 June 2016 (Charge 9), Mr Obian is also charged with two further and earlier instances of trafficking in a commercial quantity of BD. One charge alleges that over 800 litres (or kilograms) were trafficked in July 2015 (Charge 1); the other alleges that more than 17,000 litres (or kilograms) were trafficked in November 2015 (Charge 2). Mr Obian was only 22 at the time of the alleged offending, has no prior convictions, had a surety in the amount of $170,000 and had an eye complaint that could worsen in custody. While I was not given the magistrate's reasons, it is understood that these matters, along with the two-year delay between arrest and trial, moved his Honour to find exceptional circumstances in Mr Obian's case. I shall say more about the relevance of Mr Obian's grant of bail when dealing with whether there are exceptional circumstances justifying a grant of bail to Mr Bchinnati.
37 As for the fraud matter, both of Mr Bchinnati's co-accused are on bail.
39 He has a criminal history for matters of violence and one drug-related matter. He has never been sentenced to a prison sentence to be served immediately.
40 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.
41 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.
42 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.
43 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.
44 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.
45 I turn now to the question whether there are exceptional circumstances which justify a grant of bail.
46 Mr Dane QC, who appeared for Mr Bchinnati on both the previous and the present applications in the Court, submitted that I should be satisfied that a combination of factors, including the delay between arrest and trial, the added hardship of that delay that was now apparent, and the fact that Mr Obian had been granted bail, met the threshold of exceptional circumstances. Mr Gant, who appeared for the Director also on both the previous and the present applications in this Court, submitted that the new matters should not be regarded as sufficient to cause me to alter my previous rejection of the claim that exceptional circumstances had been established.[14]
47 As a preliminary matter, I note, as I did on the previous application,[15] 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.[16] Indeed, it is not impossible. Many a person has met that threshold and been granted bail.
48 While none of the following matters alone would have moved me to find the necessary exceptional circumstances in this case, in combination, they do. As I indicated earlier, two new factors were significant in my reaching a different conclusion this occasion.
49 The first of those new matters pressed by Mr Dane QC concerns what I now accept is the added significance of the delay between arrest and trial.
50 As I have said, that period of delay is now known[17] to be in the order of two years. On the previous application, I said that, while such a delay is regrettable, it is not necessarily exceptional, particularly for a trial in the County Court involving numerous accused and other complexities.[18]
51 While I maintain that view, the significance of a given period of delay might be affected by any one or more of a number of considerations - including, to list but some, the seriousness of the charge or charges, the accused's role in the alleged offending, the strength of the prosecution case, the length or type of sentence that is likely to result were there to be a conviction, the personal circumstances of the accused (including age, physical health and mental health, and family, educational and employment considerations) or the particular conditions in which the accused is held.
52 In my view, it follows that, despite the conclusion I expressed on the previous application and repeated above, in some circumstances, a delay of two years might be such as to amount to exceptional circumstances, whereas, in other circumstances, it might not reach that threshold. For example, consider an accused charged with commercial drug-trafficking, where the drugs trafficked only just reached the commercial quantity threshold and the accused was a mere courier for no reward whose time in custody would be particularly burdensome because of serious mental health problems. I venture that, in those circumstances, a two-year delay might be regarded to be of such significance as to amount to exceptional circumstances. Now, I hasten to add that I do not say that the delay in this case, even with the added significance to which I shall refer shortly, in and of itself amounts to exceptional circumstances. Instead, that added significance is but one factor that, when combined with all other factors, causes me to find exceptional circumstances on this occasion.
53 On the previous application, I received a report from Mr Bchinnati's treating psychologist Dr Paul Grech. In that report, Dr Grech said this:
Mr Bchinnati has a history of adult ADHD [i.e. attention deficit hyperactivity disorder] 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. ...
54 I went on to find that, as troubling as it was that Mr Bchinnati had not been medicated while in custody, it seemed that he had ceased taking medication well before he was arrested. I concluded that, as things stood, I was not persuaded that that state of affairs amounted to exceptional circumstances, either alone or in combination with other considerations.[19]
55 However, I also said the following:[20]
[D]espite 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.
56 As a result of the evidence placed before me on this application, I am now satisfied that the two-year period of delay is of more significance, and has become more significant, than I had understood previously. In particular, in light of the absence of treatment, with medication, of his ADHD, Mr Bchinnati's time on remand has been, and is likely to continue to be, more burdensome than I had anticipated. Let me explain.
57 I received in evidence parts of Mr Bchinnati's prison medical file and affidavits from his solicitor Theo Magazis, who detailed inter alia his attempts at communication with the prison authorities about the need for treatment of his client's ADHD. I also received a fresh report and heard viva voce evidence from Dr Grech. Finally, I received affidavits and heard viva voce evidence from psychiatrist Dr Danny Sullivan.
58 Dr Grech has been treating Mr Bchinnati since 2009. Based on his observations of Mr Bchinnati, reports from his family and others familiar with him, the opinions of Associate Professor Dodic (a general practitioner with a particular interest in mental health, who referred the patient to him) and the late Dr Orchard (a psychiatrist to whom Dr Grech referred the patient), and the application of the diagnostic criteria in both the DSM and the 'Amen Clinic ADD Type Questionnaire', he is satisfied that Mr Bchinnati has had, and still has, ADHD "of significant intensity and longstanding duration". Mr Bchinnati experiences a range of symptoms, including difficulty in sustaining concentration and attention, distractibility, impulsivity, restlessness, hyperactivity, irritability, underlying agitation and labile mood. Dr Grech opines that, while the incidence of ADHD is greater within the prison population than in mainstream society, Mr Bchinnati "stands out as a particularly severe case". Put another way, Mr Bchinnati's time in custody has been significantly more burdensome than it would have been for other prisoners because of his untreated ADHD.
59 As for treatment, Dr Grech believes that Mr Bchinnati's symptoms of ADHD could have been, and would be, ameliorated by taking dexamphetamine (which Dr Orchard previously had prescribed). In particular, he is of the view that such medication would be "extremely helpful in terms of reducing [Mr Bchinnati's] level of suffering and reducing symptoms of ... a severe case of untreated ADHD". He accepts that there are "challenges" in administering that particular drug in a custodial setting (because of, for example, the risk of trafficking and misuse), but opines that they could be overcome by certain strategies (such as supervised administration). Alternatively, another medication mooted by Dr Sullivan, namely atomoxetine, while unlikely to be as effective as dexamphetamine, is likely to provide some amelioration of Mr Bchinnati's symptoms.
60 On the evidence before me, it is apparent that, following my refusal of bail in December, Mr Magazis's office provided Dr Grech's original report and my previous judgment to the prison authorities and made repeated requests that they ensure that Mr Bchinnati receive treatment and medication for his ADHD. But no such medication was ever prescribed or provided.
61 As Dr Sullivan explained in his evidence, he ultimately saw Mr Bchinnati in custody on 2 February 2017. Unfortunately, however, despite Dr Grech's report and my judgment being sent to the prison authorities by Mr Magazis, the authorities did not provide those documents to Dr Sullivan. Mr Bchinnati, it seems, (wrongly) construed my judgment as compelling the prescription of dexamphetamine, since this is what he told Dr Sullivan. Through his own independent efforts, Dr Sullivan ultimately found my reasons for judgment on the internet. He then requested that Mr Bchinnati provide him with some collateral information about his diagnosis of ADHD, although he did not in fact ever receive any such information. While he expressed some reservations about Mr Bchinnati's diagnosis of ADHD,[21] and while he was not prepared to prescribe dexamphetamine because of the concerns about the prescription of that medication in a custodial setting, Dr Sullivan was prepared to prescribe atomoxetine on a trial basis to ameliorate Mr Bchinnati's condition, provided he received the necessary medical clearance (concerning heart function). While Mr Bchinnati received the necessary medical clearance on 17 February, he missed the next two appointments with Dr Sullivan. However, as things turned out, Dr Sullivan ceased working in that particular prison from mid-June and had no further contact with Mr Bchinnati thereafter. As at the time of the hearing of this application, Mr Bchinnati still had not been treated with any medication for ADHD.
62 I shall turn now to my key findings on this issue. First, I am satisfied that Mr Bchinnati has ADHD. Dr Grech clearly is firmly of that opinion. While Dr Sullivan is perhaps not so convinced, he does not opine to the contrary, and indeed was prepared to start a trial of atomoxetine to treat that condition.
63 Secondly, in view of Dr Grech's evidence, I am satisfied that Mr Bchinnati's symptoms of ADHD are sufficiently severe to make his time in custody significantly more burdensome than for other prisoners.
64 Thirdly, while Mr Bchinnati ceased taking medication for his ADHD before he went into custody, based on the evidence of Dr Grech and Dr Sullivan, provision of medication - whether dexamphetamine or atomoxetine - would be likely to attenuate the symptoms he has been suffering.
65 Fourthly, given his preparedness to commence Mr Bchinnati on a trial in any event, it is likely that, had he had the benefit of Dr Grech's report or other information, Dr Sullivan would have commenced Mr Bchinnati on atomoxetine (but not dexamphetamine) as early as February 2017.
66 Fifthly, while it seems that Mr Bchinnati's missed appointments might have had some role to play in forestalling any such prescription and trial, I think it would be unfair to hold that against him, for several reasons. First, Dr Grech gave evidence that forgetfulness as to appointments is a symptom of ADHD. (It seems that the appointments may have been missed because he was seeing his family or a psychiatrist or both.) Secondly, Dr Sullivan was no longer available after mid-June. Thirdly, there is no indication that Mr Bchinnati's ADHD will be treated with medication in future while in custody. Fourthly, Mr Bchinnati's solicitor made every effort to ensure that the prison authorities were alerted to the perceived need for his client to be treated for his ADHD with medication. It can hardly be said to be either Mr Bchinnati's or Dr Sullivan's fault that Dr Grech's report was not conveyed to those charged with Mr Bchinnati's care in custody. Finally, instead, I think it is fair to say that weaknesses in communication in the prison system played the dominant part in that system's failure to ensure that Mr Bchinnati was treated with medication when such medication was indicated.
67 The upshot of all of this is that, at least from February 2017, Mr Bchinnati has not received the medication he should have received in order to ameliorate the symptoms of his ADHD, which in turn has made his time on remand more burdensome than it might have been. This, in turn, has made the period of delay in custody - both past, present and future - more significant than I had appreciated on the previous occasion.
68 I turn now to the second major difference between the position that obtained on the previous application and the position that obtains now - namely, the fact that Mr Obian has been granted bail.
69 While parity can be relevant to the question of exceptional circumstances in considering bail,[22] it is often a consideration of little or no relevance. This is usually because there is some factor unique to the case of the accused who has been granted bail for which there is no equivalent in the case of the co-accused who subsequently applies for bail,[23] or because there is some other contra-indication to bail. Further, it has been said that a manifestly wrong decision to grant bail could not be used as a basis for the application of the parity principle in another bail application.[24] I hasten to add that there is no suggestion that the magistrate was wrong to grant bail to Mr Obian. Mr Grant made no such submission and the Director never appealed that decision.
70 In some cases, however, the circumstances of two accused are sufficiently similar that, if bail had been granted to one, it would be wrong to refuse bail to the other,[25] or at least the grant of bail to one would be a relevant consideration on the application of the other. In my view, certainly the latter situation obtains in Mr Bchinnati's case, and the former may well apply too. Let me explain.
71 While Mr Obian is young (aged 22), has no prior convictions and had an eye complaint that might be worsened in custody, and while Mr Bchinnati is not young (at 30), does have some prior convictions and does not have a physical complaint that might be worsened in custody, there are other factors that offset those differences, so that it is at least a significant consideration in Mr Bchinnati's application that Mr Obian has been granted bail.
72 Those offsetting factors are as follows. First, while Mr Bchinnati has prior convictions, they are not so significant as to justify a denial of bail. Secondly, while he does not have a physical complaint, as I have just explained, Mr Bchinnati does suffer from ADHD which has been, and it seems will continue to be, untreated with medication, which in turn has made, and will continue to make, the delay between arrest and trial all the more significant. Thirdly, while Mr Bchinnati and Mr Obian face the same joint charge of trafficking in a commercial quantity of BD, it is plain that Mr Obian was allegedly intimately involved with Mr Moustafa in the push to shift the BD from its storage, whereas there is no evidence that Mr Bchinnati was anything more than last-minute hired help in the alleged trafficking. Further, a similar point is that, whereas Mr Obian is allegedly involved in two other instances of importing and trafficking in a commercial quantity of BD in the year or so preceding 14 June 2014, one of which offences allegedly concerns about 17 tonnes of BD (and therefore worth as much as $17 million), Mr Bchinnati is not charged with those offences and there is no evidence that he was involved in any such thing.
73 In those circumstances, even allowing for Mr Obian's relative youth and complete absence of prior convictions, it would seem to me to be significant in determining whether Mr Bchinnati has established exceptional circumstances to have regard to the fact that Mr Obian has been granted bail. Indeed, while it is unnecessary to decide the point in this case, in all the circumstances, it would seem wholly unfair to deny Mr Bchinnati bail on his charge of trafficking in a commercial quantity of BD when Mr Obian has bail on what can only be regarded as related but comparatively far more serious allegations of the same type.
74 Thirdly, the other factors that, when taken together with the added significance of the two-year delay between arrest and trial and the fact that Mr Obian has been granted bail, combine to cause me to find exceptional circumstances include the following:
75 First, while some aspects of the prosecution case against Mr Bchinnati on the drugs charge are strong, there is at least one aspect of the case that may represent a potential weakness. 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.[26] I was informed on the application that there is some evidence in the case that the BD in question 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. On the other hand, it might be argued by the Director at trial that Mr Bchinnati's attempt to scarper upon detection 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. 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 or moved. However, this does not mean that the case on this charge is either weak or strong. Nor, in my judgment, is it a matter that, of itself, amounts to exceptional circumstances. But it does show at least a potential weakness in the prosecution case. That, in my view, is a factor to weigh in the balance in considering whether there are exceptional circumstances.
76 Secondly, 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 not just Mr Obian but also some others charged. I should add that there is no evidence before me that Mr Bchinnati had any commercial interest in the alleged offending. On the other hand, if convicted at trial, it is 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. While Mr Bchinnati's lesser role in the alleged offending is not an exceptional consideration by itself, it is a matter that goes to that issue.
77 Thirdly, for reasons I shall give in more detail shortly, I am not persuaded that there is 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. Indeed, in so far as there is a risk of any such things occurring, I am satisfied that the provision of a substantial surety and the imposition of strict bail conditions render that risk acceptable, particularly in light of the substantial delay until trial on the drugs and proceeds of crime charges. In my view, the absence of unacceptable risks of these types is another consideration that goes to whether, in combination, there are exceptional circumstances.[27]
78 Thus, in light of the foregoing combination of factors, I am satisfied that there are exceptional circumstances justifying a grant of bail.
80 As I understood him, Mr Grant submitted, as he had done on the previous application, 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. I took him (again) to rely on, among other things, the nature and seriousness of charges in general and the drugs charge in particular and Mr Bchinnati's alleged involvement therein, his prior convictions, his history of failing to comply with his CBO, the fact that the drugs and proceeds of crime offences were allegedly committed while on bail, and the informant's previous concerns 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.
81 While, on the previous occasion, Mr Grant had conceded that suitably strict conditions might reduce the asserted risks to an acceptable level, that concession was made in relation to the drugs and proceeds of crime charges. It was also a concession made in circumstances where the case against Mr Bchinnati on those charges was largely circumstantial, being based on surveillance by police officers, and where it was difficult to see how an attempt to interfere with such witnesses could impact on the prosecution case on those charges. On the present application, however, which also involved the fraud charges, which, in part, were supported by evidence from proposed civilian witnesses whose evidence might be altered if interfered with, Mr Grant made it clear that there was an additional concern that Mr Bchinnati indeed would interfere with those witnesses. In particular, Mr Grant referred to evidence, which had been before me on the previous application, that Mr Bchinnati had been obstructive when police had sought to investigate matters in the past.
82 As for the suggestion that Mr Bchinnati might interfere with witnesses or the like in respect of the drugs and proceeds of crime charges, I took Mr Dane to submit, as he had done on the previous occasion, that the evidence implicating his client on those charges came from police surveillance, a CCTV camera and the discovery and analysis of the drugs, plus the cash, none of which could be affected by any such alleged behaviour. As for the risks of offending (and thereby endangering the public) while on bail, failing to appear and interfering with civilian witnesses on the fraud charges, Mr Dane submitted that those risks were offset by the availability of strict conditions, the provision of a stable residence, and the provision of a substantial surety. I accept that all of those things could be put in place.
83 As had occurred on the previous occasion, Mr Bchinnati was able to offer a surety of $500,000. It was accepted by Ms Moran, on behalf of the Director, that the person who was proposed as the surety understood her obligations and the potential consequences of a failure by Mr Bchinnati to appear at trial. In the circumstances of this case, I am prepared to act on those concessions without hearing from the proposed surety.
84 For the reasons advanced by Mr Dane, I do not accept that, if bailed, there is any unacceptable risk that Mr Bchinnati could interfere with witnesses. If he made the slightest attempt to do so, he would know that it is likely that his bail would be revoked in a heartbeat. Nor, on the material, does there appear to be any meaningful 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, particularly when a surety of $500,000 has been offered. While I cannot exclude the 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 is not unacceptable. Those factors include the availability of strict bail conditions - any breach of which surely would see an application to revoke bail - a stable residence and a substantial surety.
85 Accordingly, I am not satisfied that there is any unacceptable risk of the kind advanced by the Director.
86 It was for the foregoing reasons that, on 15 September 2017, I ordered that Mr Bchinnati be admitted to bail upon there being a surety in the amount of $500,000 and with the following conditions:
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[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] 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 (see s 4(2)(aa)(i) of the Bail Act 1977 (Vic)).
[4] See Bchinnati v DPP [2016] VSC 815.
[5] As will be seen below, the two trafficking charges have been collapsed into the one charge on an indictment, which includes the proceeds of crime charge as well.
[6] While the fraud charges had been laid at the time of the last application in this Court, Mr Bchinnati did not seek bail on those charges at that time. See Bchinnati v DPP [2016] VSC 815 at [35].
[7] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
[8] 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).
[9] 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.
[10] Mr Moustafa also faces another charge (Charge 19) of trafficking in a commercial quantity of BD between 27 June and 26 August 2016, based on his alleged directions, from custody, to another or others 'on the outside' concerning the movement and storage of barrels of BD.
[11] As I read the materials, police also found three 200-litre drums of BD at the storage facility in Ashley Street. It does not appear to be alleged that these drums are part of the trafficking alleged against Mr Bchinnati. But, if I am wrong in that understanding, it would not have altered my decision to grant bail.
[13] 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).
[14] Ms Moran, who appeared for the Director on the first day of this application, also submitted that I should not be satisfied that exceptional circumstances had been established.
[15] Bchinnati v DPP [2016] VSC 815 at [61].
[16] See, e.g., Lasry J's survey of authority on "exceptional circumstances" in Obian v DPP [2016] VSC 607 at [25]- [34].
[17] I say it is "known", but that is based on the assumptions that the trial will commence on or about its listed date and that the estimate of its duration is accurate. The vicissitudes of criminal trials being as they are - particularly on an indictment charging multiple accused and multiple offences - the trial may take longer or it may be put off for any number of reasons (such as severance of some of the charges and a decision to proceed with the trial or trials of charges concerning some co-accused first, which strikes me as a distinct possibility in this particular case).
[18] Bchinnati v DPP [2016] VSC 815 at [46].
[19] Bchinnati v DPP [2016] VSC 815 at [59] & [64].
[20] Bchinnati v DPP [2016] VSC 815 at [66].
[21] Dr Sullivan made it clear that his reluctance in adopting the diagnosis stemmed from, inter alia, any reliance on the Amen scale, which he believes is not validated, and the late Dr Orchard's alleged history of over-diagnosing ADHD, which, it was said, at least in part caused the relevant authority to suspend his right to practice medicine for a period. That said, there was no criticism of the expertise or experience of Dr Grech or Dr Dodic in the area of diagnosing ADHD.
[22] See, e.g., R v Abbott (1997) 97 A Crim R 19 (per Gillard J) ("Abbott") at 29.
[26] 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).
[27] Perhaps contrast Abbott at 30. In so far as Gillard J's remarks might be taken to suggest that the absence of an unacceptable risk of failing to appear and the like is irrelevant to a consideration of whether there are exceptional circumstances, I disagree. While the absence of such unacceptable risks, of itself, would not be regarded as exceptional, that does not render that absence irrelevant to the question of whether, in combination with other matters, exceptional circumstances might be established.
Bchinnati
DPP