CRIMINAL LAW - Application for bail - Charges of attempt to traffick commercial quantity of border controlled drugs, unlicensed possession of firearms and others - Meaning of exceptional circumstances - Roberts v The Queen

1 This is an application for bail by Steven Desic in relation to two serious matters. The first are charges prosecuted by the Commonwealth Director of Public Prosecutions ('CDPP'), and the second is a matter arising out of charges laid by Victoria Police as the result of a traffic interception.

2 In the CDPP matter, the applicant is charged with the following offences:

(a) attempt to possess a commercial quantity of unlawfully imported border controlled drugs;

(b) attempt to traffick a commercial quantity of controlled drugs;

(c) deal with property reasonably suspected of being the proceeds of crime with a value of more than $100,000;

(d) possess a category C longarm without a licence;

(e) possess a category B longarm without a licence;

(f) possess an imitation firearm without an exemption;

(g) possess a drug of dependence, namely methylamphetamine;

(h) possess identification information with the intention of engaging in conduct contrary to s 372.2(1) of the Criminal Code 1995 (Cth);

(i) possess substance, material, document or equipment for trafficking in a drug of dependence;

(j) possess a cattle prod taser without lawful excuse; and

(k) conceal or disguise the location of money or property with a value of more than $100,000, being the proceeds of crime.

3 In relation to the Victoria Police matter, the applicant is charged with:

(a) possess a drug of dependence, namely methylamphetamine (two counts);

(b) traffick a drug of dependence, namely methylamphetamine; and

(c) commit an indictable offence whilst on bail, namely possess a drug of dependence.

4 Between September and November 2021, the applicant and others were being investigated in relation to the CDPP matters. On 16 November 2021, search warrants were executed and on 17 November 2021, the applicant was arrested and interviewed in relation to the drug offending. The following day, 18 November 2021, he having been charged his application for bail was refused.[1]

5 On 17 February 2022, the applicant made a further bail application to the Melbourne Magistrates' Court in the CDPP matter and bail was granted by the presiding Magistrate.[2] The Court was apparently satisfied that exceptional circumstances had been established by the applicant and also that appropriate bail conditions could ameliorate any risk of releasing him on bail. Included amongst the arrangements made on that day were that the applicant would receive some form of treatment for his drug problem with methylamphetamine.

6 On 28 April 2022, the applicant was arrested, charged and remanded in relation to the Victoria Police matters. This arose as the result of a traffic intercept by Victoria Police which uncovered, among other things, eight grams of methylamphetamine.

7 On 3 May 2022, the applicant was refused bail in relation to the charges laid by Victoria Police and his bail in relation to the CDPP matter, which had been granted on 17 February 2022, was revoked.[3]

8 On 5 August 2022, the applicant made further bail applications in relation to all matters and on 8 August 2022, those applications were refused.[4]

9 On 15 August 2022, the applicant filed an application for bail in this Court.

10 These matters are next listed in the Melbourne Magistrates' Court on 14 October 2022 for a committal mention, in relation to the Commonwealth matter and on 28 October 2022 for a special mention in relation to the Victoria Police matter. I am informed by counsel for the respondent, Ms Brekweg, that it would be possible for a committal to be held in relation to all matters on 28 October 2022 if the applicant so wished. I assume that depends on the level of disclosure and preparation that occurs between now and then.

11 It is alleged that the applicant, with co-accused Tony Raffoul and James Tims, imported drugs into Australia using the names of legitimate companies (without the knowledge of those companies) to 'piggyback' off the companies' reputations and legitimate importing histories in order to avoid detection. It is further alleged that the group obtained false email addresses which mimicked email addresses for the legitimate companies. Police allege that this was done in order to create email correspondence between the false companies and the applicant's business, 'Last Minute Logistics and Transportation Services', and give the appearance that the imported goods were part of legitimate business operations.

Attempted importation of 184kg of methamphetamine from Malaysia as 'guyx hot plates'

12 Between 20 April and 14 July 2021, four consignments for 'International Catering Equipment Pty Ltd' arrived in Australia. Each consignment weighed approximately 280kg and was described as 'guyx hot plates' or 'general cargo'. Three of the consignments were not examined by border control. One consignment was examined, and tested negative for controlled drugs. The prosecution allege that this was potentially a 'dry run'; an importation of goods not containing drugs to create the appearance of a legitimate operation, and disguise later attempts to import drugs.

13 On 14 July 2021, one of these consignments was collected by a male, alleged to be the applicant, who was driving a trick with false registration plates.

14 On 17 August 2021, Malaysian Customs seized a consignment bound for Melbourne International Airport, addressed to 'International Catering Equipment Pty Ltd'. The consignment, which had been described as guyx hot plates, actually contained 184kg of methamphetamine concealed in green and gold 'Guanyinwang' branded tea bags.

15 On 17 and 18 November 2021, police executed a search warrant at a storage unit which the applicant had alleged leased under false information. The storage unit contained green and gold Guanyinwang tea boxes identical to those used to conceal methamphetamine in the consignment intercepted in Malaysia. The storage unit also contained a Malaysian Airlines shipping label dated 20 April 2021, addressed to International Catering Equipment Pty Ltd.

Importation of unknown quantity of controlled drugs from Canada in Hobart dough mixer

16 On 31 August 2021, a consignment for 'Kitchen Equipment Australia PTY' arrived in Australia from Canada. The goods were cleared without inspection. This importation had been arranged by 'Mohsen Younes', which the prosecution allege to be co-accused James Tims. The importation was allegedly paid for using a bank card created under a stolen identity.

17 On 1 September 2021, a consignment was collected by 'Steven' from 'LM Transport', which the prosecution allege to be the applicant. On 11 September 2021, the Australian Federal Police ('AFP') received information that the consignment was suspected to contain drugs, concealed within a Hobart brand dough mixer.

18 On 17 November 2021, police executed a search warrant at co-accused James Tims residential address. Police located a Hobart dough mixer which had been hollowed out. Swabs taken from the inside of the mixer allegedly detected methamphetamine. The prosecution allege that the consignment was used to import an unknown quantity of controlled drugs.

Attempted importation of 142kg of methamphetamine from Canada in commercial dough mixer

19 On 29 September 2021, Canadian border services intercepted 142kg of methamphetamine addressed to 'Kitchen Equipment Australia' and concealed within a commercial kitchen dough mixer. The Canadian border services substituted the methamphetamine with a traceable inert substance and advised AFP.

20 On 5 October 2021, the consignment arrived in Melbourne. On 12 October 2021, Mohsen Younes, who the prosecution allege to be co-accused James Tims, arranged for the consignment to be couriered to a nearby location.

21 On 22 October 2021, AFP observed a person, alleged to be the applicant, collect the consignment and transport it to his factory at 1/17 Darbyshire Street, Williamstown ('the Williamstown factory'). While this was happening, AFP intercepted mobile phone communications in which the applicant instructed his partner to "send an email to the client and tell them that it has been picked up from Direct Couriers and is heading back to our warehouse for storage now".

22 On 27 October 2021, at the Williamstown factory, the applicant allegedly used a radio frequency scanning device in an attempt to detect surveillance devices around the consignment, before opening the consignment and photographing its contents. Police allege that these photographs were sent to an unknown person using encrypted communications.

23 On 28 October 2021, the applicant was observed meeting with co-accused James Tims at a Shell Service Station on Geelong Road for approximately 25 minutes.

24 On 1 November 2021, AFP observed a truck attend the Williamstown factory and collect the consignment. On 5 November 2021, the consignment was transported by a third party company between two addresses in Ravenhall, allegedly at James Tims' instruction.

25 On 15 November 2021, AFP observed the applicant collect the consignment using a vehicle bearing false registration plates, while Tony Raffoul watched from another vehicle nearby. Via CCTV, the applicant and Tony Raffoul were observed driving in convoy towards Bullengarook with the consignment. Sometime after 4.00pm, civilian witnesses observed the truck, still with the consignment, on Mulcahy Road in Bullengarook. At 4.40pm, the applicant and Tony Raffoul were observed via CCTV travelling without the consignment. The applicant was subsequently observed visiting a storage unit in Maribyrnong

26 Later that evening, police received a phone call from a member of the public reporting that a large dough mixer had been dumped on the side of Mulcahy Road, Bullengarook. The caller stated that the mixer had been ripped open and that "there were drugs everywhere". Upon arrival, police found the dough mixer partially dismantled, with numerous bags of the inert substituted substance, totalling 134kg, stacked within the mixer and strewn around it. Police allege that the applicant and co-accused Tony Raffoul abandoned the consignment upon discovering that the methamphetamine had been substituted.

27 On 17 November 2021, search warrants were executed at the applicant's residential address, the Williamstown factory, and the Maribyrnong storage unit. The applicant was arrested at his residential address the same day.

28 As a result of the search warrants executed at the applicant's residential address and the Williamstown factory, the following property was seized:

(a) concealed cash totalling $132,190;

(b) false identity documents depicting the applicant;

(c) a radio frequency scanning device, which police allege the applicant used in an attempt to detect surveillance devices;

(d) gloves, on which the inert substituted substance from the commercial dough mixer was detected;

(e) photographs depicting the applicant in Rebel Outlaw Motorcycle Club apparel;

(f) 3.24 grams of cocaine;

(g) keys to the Maribyrnong storage unit;

(h) electronic devices, containing evidence of: quotes and email correspondence between Last Minute Logistics and false email addresses for Kitchen Equipment Australia and International Catering Equipment, release orders relating to the importation of guyx hot plates from Malaysia and a mixer Canada, and email correspondence relating to the Maribyrnong storage unit.

29 As a result of the search warrant executed at the Maribyrnong storage unit, the following property was seized:

(a) a shipping label for 'International Catering Equipment';

(b) Guanyinwang tea bags containing traces of methamphetamine, which the prosecution allege match those used to conceal methamphetamine in the consignment intercepted in Malaysia;

(c) various drugs, including 40 grams of methamphetamine, 90 grams of cannabis, and precursor chemicals typically used in the manufacture of methamphetamine;

(d) various weapons, including knuckle dusters, a cattle prod taser, an imitation pistol, a Stirling firearm, parts of several firearms, and various ammunition; and

(e) electrical devices, containing evidence of: driver licence templates for Victoria, South Australia and New South Wales, false drivers' licences depicting co-accused James Tims and the applicant, and a spreadsheet recording 'gear' (which the prosecution allege refers to illicit drugs) and values of over one million dollars.

30 James Tims faces 22 charges in this matter, for offending principally related to the importation, possession, and manufacture of drugs and the possession of weapons.[5] Tims has no criminal history. He was remanded on an unspecified date and granted bail on 7 December 2021 in the Magistrates' Court. He remains on bail.

31 Tony Raffoul faces five charges in this matter, for offending related to the attempted importation of drugs, possession of drugs, and committing an indictable offence while on bail.[6] He has no criminal history, however he was on bail in relation to allegations of conspiracy to import drugs at the time of the alleged offending. He was remanded on an unspecified date and remains on remand.[7]

32 On 28 April 2022, while on bail for the CDPP matter, the applicant was driving his father's vehicle in Collingwood. He was the sole occupant of the vehicle. Police stopped the vehicle, and due to the applicant's nervous presentation, became suspicious that the applicant was in possession of drugs. Police searched the vehicle and located a case containing two bags of methamphetamine, with a total weight of 8.3 grams, under the driver's seat.

33 The applicant denied knowledge of the methamphetamine, stating that he had never seen the case before and that other people had previously had access to the vehicle. The applicant acknowledged using methamphetamine previously, however stated that this addiction was in the past and that he would not risk his bail sureties for eight grams of methamphetamine. The applicant was arrested and remanded in custody.

34 The applicant is charged with Schedule 1 offences[8] within the meaning of the Bail Act 1977 ('the Act') and bail must be refused unless he satisfies me that exceptional circumstances exist that would justify the grant of bail.[9] In determining whether exceptional circumstances exist, I must take into account the 'relevant surrounding circumstances' including but not limited to those prescribed in s 3AAA(1) of the Act.[10]

35 If I am satisfied that exceptional circumstances exist, I must apply what is described as the unacceptable risk test,[11] which means that bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[12] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that can be imposed which would mitigate the risk so as to make it acceptable.[13]

36 In this application, it was argued by Mr Dunn KC on behalf of the applicant, that there are a number of circumstances which are in combination exceptional. As I understand it, those relied upon, in particular, include:

(b) the availability of treatment to the applicant for his addiction to methylamphetamine;

37 The applicant is a 30 year old man who has resided in Victoria for the whole of his life. The material before me indicates that he was raised in a volatile home environment by a strict father who was physically abusive towards him when disciplining him. Despite that, I am told that he is close to his family and relies on their support, which they are willing to provide. The applicant has a history of abusing alcohol and other drugs, commencing with cannabis at the age of 18 and methylamphetamine at the age of 20. According to Ms Kate Burke, who is an addiction counsellor at an establishment known as 'The Cottage', the applicant has been assessed as suffering from a substance use disorder. She is of the opinion that he offers good insight into his drug use but exercises poor judgment.

38 The applicant also has a partner, who is pregnant with his child, and that birth is due on 11 November 2022. His partner supports him and was present for this application.

39 The applicant has a limited criminal history and the only matter of relevance to this case is a Community Correction Order, which he breached in 2017 for possession of drugs. His current remand is effectively his first time in custody.

40 On behalf of the applicant, Mr Dunn KC referred to a number of matters. First of all the arrest of the applicant in April 2022 occurred in circumstances where he was intercepted almost at random and a small amount of methylamphetamine was located consistent with being for personal use. It is true that that offending occurred after a grant of bail in relation to the larger matters, but it was contended that this was symptomatic of the applicant's ongoing struggle with the use of methylamphetamine.

41 It was also put that the applicant has the support of his heavily pregnant partner and his family, who all wish to assist him to recover from his chronic drug use. In that connection, he has been assessed by The Cottage at Shepparton as a person fit and suitable for a 12-16 week program. Evidence was called on behalf of that organisation from Mr Aaron Gilhooly, substantiating that he was suitable and describing the nature of the treatment that would be administered during that time.

42 The proposal on behalf of the applicant is that he be granted bail with a surety of $640,000, which would be provided by his parents as well as the sisters of his partner, and on a number of strict further conditions including that he reside as an inpatient at The Cottage in Shepparton and that at the conclusion of that program, he 're-present' at this Court for a bail review and further bail application.

43 On the topic of delay, relied upon as being one of the circumstances which in combination may be exceptional, it would appear common ground between the parties that there will be no trial of this matter until at least the first quarter of 2024. Notwithstanding the mandate against speculation, this does not appear to be speculative. What is speculative is the prospect that the delay could be longer, but it could be.

44 Mr Dunn relied heavily on the residential rehabilitation that was proposed at The Cottage, referring to the benefits both to the applicant and to the community in having successful treatment for his addiction to methylamphetamine. It was put that failure to complete the course would be a likely breach of bail.

45 I would accept that such a course is desirable. On the other hand, the submissions made on behalf of the respondent referred to the fact that this offending was extremely serious, exposing the applicant to a maximum penalty, if convicted, of life imprisonment. It involved 111kg of methylamphetamine.

46 Mr Dunn also urged that a long list of other conditions restricting the freedom of the applicant would ameliorate the risk implicit in his release.

47 Mr Dunn also argued that even if it be the case that the applicant had a strong incentive to flee, the prospects of doing so in the modern age are low because of the difficulty of penetrating Customs.

48 In the submissions of Ms Brekweg, counsel for the respondent, this offending by the applicant was effectively a business enterprise, with all the elaborate planning and measures consistent with a very substantial drug operation. That included 'dry runs', false documents, false registration plates and weapons. These, she submitted, are extremely serious as it involved some 111 kilograms of pure methylamphetamine which, she said, was 148 times the commercial quantity. This offending carries a maximum penalty of life imprisonment. Assuming a conviction, there would be no question that the sentence that would follow would easily exceed any remand period.

49 The respondent argued that the surety proposed on behalf of the applicant of $640,000 was in relatively small dimensions compared with the magnitude of the value of the drugs which were being attempted to be imported. Counsel alleges that the value of the drugs sought to be imported was approximately $55 million.

50 In the respondent's submission, the desirable course of the applicant undergoing treatment which might assist him in his addiction to methylamphetamine does not in any sense address the magnitude of the offending alleged against him by the Commonwealth.

51 Ms Brekweg also noted that flight could occur within Australia.

52 Apart from the provisions of s 3AAA of the Act and the considerations it requires be taken into account, it is perhaps well to also briefly revisit some judicial interpretations of the phrase 'exceptional circumstances' in the context of the provisions of the Act for applications of this kind.

53 Most recently, the issue of the meaning of that phrase was considered in the judgment of the Court of Appeal in Roberts v The Queen,[14] where the Court said:

1. It is not in doubt that the circumstances giving rise to the quashing of the appellant's convictions last November are quite exceptional. Fortunately it is an extremely rare occurrence for convictions to be quashed on the ground that police misconduct denied an accused person a fair trial according to law. The critical question, however, was whether those circumstances, and the fact that the appellant had spent more than twenty years in custody by virtue of those wrongful convictions, justified a grant of bail. The judge was not dissuaded that they did and, in our respectful view, that conclusion is unimpeachable.
2. A review of bail decisions in 'exceptional circumstances' cases reveal certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependents); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
3. The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of 'unacceptable risk'). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.

54 The earlier judgments of this and other courts highlight the process by which exceptional circumstances may be established. They may for example be established by a combination of circumstances, any one of which might on their own amount to an exceptional circumstance. That reasoning of course is an important part of the mechanism by way in which the conclusion can be reached.

55 It is in the context of those matters that I refer to the conclusions I reached in, for example, Re Strachan,[15] where I described the meaning of the phrase 'exceptional circumstances' as being able to be summarised in to three limbs:

(a) the circumstances relied upon must be such as to take the case out of the normal to justify the admission of the applicant to bail;

(b) whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach; and

(c) furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.

56 In examining the legislative considerations with the principle enunciated by the Court of Appeal I outline the following reasoning for the circumstances of this case. The nature and seriousness of the offending alleged in this case is very high indeed as I have already noted. It appears to me to be a very strong case and whilst there may be "triable issues" that does not mean the case is less than strong. As has been pointed out on behalf of the respondent, the offending is very serious, bearing in mind the sophistication and detail of the arrangements, coupled with the massive amount of methylamphetamines that was proposed to be imported. The result is that the applicant faces the prospect of a maximum penalty of life imprisonment.

57 There has been a previous breach of bail and it was for drug offending. The applicant was granted bail in February 2022 by the Magistrates Court. That was, on one view, a most fortunate occurrence. The applicant might well have thought, having been granted bail at that stage, that he would do well to ensure that nothing occurred that put his liberty at risk. However, unfortunately, that did not occur, and his offending continued, albeit at a much lower level and it occurred in the context of his methylamphetamine addiction. It is also significant that it occurred only two months after the grant of bail from the Magistrates' Court.

58 None of the provisions of s 3AAA(1)(e) or (f) apply. I have considered the personal circumstances relied upon by Mr Dunn. There is no special vulnerability. There are treatment services available. The length of time the accused will spend in custody will be significant and that is undesirable. On the other hand the likely sentence if the applicant is found guilty of the CDPP offences will be very substantial. The rest of s 3AAA does not apply.

59 In this case, given the nature of the offending and its seriousness, I do not regard the circumstances relied upon by the applicant as being in any sense out of the normal to justify the admission of the applicant to bail. I accept that the applicant's circumstances will be difficult if he continues to remain in custody and does not undertake the residential rehabilitation program. However, as the respondent points out, the residential rehabilitation program is aimed at assisting him with his personal addiction to methylamphetamine and has almost nothing to do with the business venture that he entered into to import a very large amount of that drug into Australia.

60 I also do not consider that any real issue of parity arises with the co-accused. Reliance was placed on the situation of James Tims, who is an alleged accomplice, but it appears to be true that the role of Tims is a lesser role in this matter than the role of the applicant.

61 Overall, to adopt the reasoning of the Court of Appeal in Roberts, I do not consider that a refusal of bail in this case will be productive of future injustice.

62 In all those circumstances, I am not persuaded that exceptional circumstances have been established. Given that conclusion, the appropriate order to make is that the application for bail be refused.

[1] Affidavit in support filed on 15 August 2022, exhibit SP-4. Bail was refused on the basis of a failure to show exceptional circumstances and unacceptable risk that the applicant would commit an offence while on bail, endanger the safety or welfare of any person, and fail to surrender into custody.

[2] Affidavit in support (n 1), exhibit SP-5.

[3] Affidavit in support (n 1), exhibit SP-6.

[4] Affidavit in support (n 1), exhibit SP-7.

[5] See affidavit in response [52]-[53] for a list of the charges against James Tims. No charge sheets are provided, however the respondent submits that initial charges were laid against Tims on 17 November 2021, with further charges being laid on 6 February 2022 and 13 July 2022.

[6] See affidavit in response [55]-[56] for a list of the charges against Tony Raffoul. No charge sheets are provided, however the respondent submits that initial charges were laid against Raffoul on 17 November 2021, with further charges being laid on 6 February 2022.

[7] Tony Raffoul previously filed an application for bail in the Supreme Court on 18 May 2022, however withdrew the application before the hearing date.

[8] Namely, attempt to possess a commercial quantity of a border controlled drug (methylamphetamine) and attempt to traffick a commercial quantity of a controlled drug (methylamphetamine) contrary to ss 307.5(1) and 302.2(1) of the Criminal Code 1995 (Cth); See, Bail Act 1977 (Vic), Schedule 1, items 8 and 9.

[9] Bail Act ss 4AA(1), 4A(1)-(2).

[10] Ibid s 4A(3).

[11] Ibid, s 4A(4), 4D(1)(a).

[12] Ibid s 4E(1)-(2).

[13] Ibid s 4E(3).

[14] [2021] VSCA 28 [8]-[10].

[15] [2021] VSC 538 at [27].