DPP v Molinaro [2017] VSC 624

1 This is an appeal by the Director of Public Prosecutions ('Director') against an order made in the Melbourne Magistrates' Court on 21 August 2017 granting bail to the respondent, Francesco Molinaro.

2 On 11 December 2016, the respondent was arrested and charged with a large number of offences. These included charges of possession and trafficking a drug of dependence, trafficking a commercial quantity of a drug of dependence, and a number of weapons charges. The respondent was also charged with driving whilst disqualified. There were 35 charges in total.

3 Subsequently, the respondent was granted bail on his own undertaking and with a $200,000 surety. Conditions of bail included daily reporting, and participation in a residential drug rehabilitation program, known as Recover Oz. Participation in that programme required the respondent not to possess or use a telephone except in the presence of a staff member, and not to have access to a computer or the like. It also required the respondent to provide weekly urine analysis results to the informant, upon request.

4 The Director relies upon the following grounds in support of this appeal:

1. That the learned Magistrate erred in granting bail to the Respondent in that it was not reasonably open to the learned Magistrate to conclude that the Respondent had demonstrated to the Court that he had established that he was entitled to be admitted to Bail because of the presence of 'exceptional circumstances' pursuant to s 13 of the Bail Act 1977;
2. That the learned Magistrate erred in granting bail to the Respondent in that it was not reasonably open to the learned Magistrate to conclude that the Respondent did not represent an unacceptable risk of committing an offence whilst on bail pursuant to s 4(2)(d) of the Bail Act 1977.

Director's Right of Appeal under s 18A

5 Section 18A(1) of the Bail Act 1977 confers upon the Director a right of appeal to this Court against an order granting bail if the Director is satisfied that, relevantly, the decision to grant bail contravenes the Act and the Director is satisfied that it is in the public interest to bring such an appeal. Subsection (2) requires the Director to cause notice of appeal setting forth the grounds upon which he relies to be given to the person granted bail, and to each of the sureties, if any.

6 There is a time limit of one month within which any notice of appeal must be filed. The Director's notice was filed on 25 August 2017, and it has taken from that date until now for this matter to be listed for hearing. I understand that this delay was brought about by the respondent's inability to obtain legal representation.

7 Subsection (6) provides that on appeal under subsection (1), if this Court thinks that a different order should have been made, it must set aside the order that is the subject of the appeal. The principles that govern an appeal of this kind are discussed in a number of authorities, including in particular, Beljajev v Director of Public Prosecutions (Vic ) and Director of Public Prosecutions (Cth),[1] and Director of Public Prosecutions v Johnstone,[2] but most usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro.[3] It is clear that a 'Director's appeal' against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.[4]

8 It was submitted on behalf of the respondent, and not challenged by the Director, that the test on an appeal of this kind, is whether the particular finding of the magistrate that is impugned was 'reasonably open'. Frankly, I doubt that the words of s 18A(6) should be so construed, almost akin to having to establish 'Wednesbury unreasonableness'.[5] However, as both parties have proceeded upon that basis, and the grounds of the appeal are specifically drawn in those terms, I shall myself decide this appeal in accordance with the test so propounded.

9 In the event that the court finds relevant error, and sets aside the decision below, it must then conduct a fresh hearing in relation to the grant of bail to the respondent. In other words, the relevant provision contemplates a two stage process, one regarding correction of error, and the second, in effect, a hearing de novo.

10 There are two co-accused in this matter, James Bau and Patrick Arena. The latter was said to be the main financial contributor to the enterprise. Both co-accused have also been granted bail by the Melbourne Magistrates' Court, Mr Bau on 13 December 2016, and Mr Arena on 14 February 2017.

11 Because the charges brought against the respondent include trafficking in a commercial quantity of a drug of dependence, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981, s 4(2)(aa)(i) of the Bail Act applies. Accordingly, the respondent was not to be given bail, unless the magistrate was satisfied that 'exceptional circumstances' existed which justified the grant of bail. Moreover, even assuming that such circumstances were established, bail was to be refused if the magistrate was satisfied that there was an unacceptable risk that the accused, if released on bail, would commit an offence whilst on bail.[6]

12 At the time of the alleged offending, the respondent was already on bail for two separate sets of drug and driving related offences. Accordingly, putting to one side the question of 'exceptional circumstances', he would also have been required, independently, for that reason alone, to 'show cause' why his continued detention in custody was not justified.

13 In addition, at the time of the alleged offending, the respondent was undergoing an 18 month Community Correction Order ('CCO') that had been imposed on 3 June 2015.

14 The respondent is aged 31. He experienced trauma in his early life, notably his father's drug use, and the murder, by his grandfather, of his grandmother. Although he was unemployed as at December 2016, he had previously worked in his family's café business. He has a chronic and longstanding addiction to methylamphetamine, and is also a heavy user of GHB.

15 Prior to his arrest he lived with his partner, who is also the co-accused in another matter in which the respondent is said to have possessed and trafficked drugs of dependence (the 'Scanlon matter').

16 The respondent has a substantial criminal record spanning from 2006 to 2015, though with no entries from 2007 to 2014 inclusive. His convictions involve mostly drug and driving offences. He also has a small number of convictions for weapons offences. He has one conviction, dated 25 October 2006, for having failed to comply with an undertaking order, but has no bail related prior convictions.

Cohen matters - the subject of the present appeal

17 The offences with which the respondent was charged, in December 2016, were allegedly committed over a three month period, between 26 September and 11 December 2016. The informant in that matter is Senior Constable Aranka Cohen, who gave evidence before me this day.

18 On six separate occasions during that period, the respondent allegedly sold a total of 201.7 grams of methylamphetamine to a covert police operative. He received a total of $29,900 for these drugs. He also sold that police operative two firearms, a quantity of ammunition and some knuckledusters. He was seen on one occasion to be in possession of a third gun. In addition, he was observed driving whilst unlicensed.

19 There was evidence of further trafficking, during that period, of methylamphetamine and 1,4-Butanediol.[7] That evidence was obtained from telephone intercepts, and call charge records, of the respondent's phone.

20 On the day of his arrest, a search of his home in Noble Park North located yet still more methylamphetamine and 1,4-Butanediol, as well as drug paraphernalia, a starting pistol, and a lighter containing tear gas.

21 These matters are currently listed for a one day committal hearing on 16 February 2018.

22 As referred to above, the respondent and his partner are co-accused in a matter concerning the possession and trafficking of drugs of dependence. The informant in those matters is Constable Leigh Scanlon, and the offences in question were said to have been committed on 11 March 2016. These matters are to be dealt with summarily, and are listed for mention on 2 November 2017 at the Moorabbin Magistrates' Court.

23 The respondent is facing yet another set of charges involving trafficking in drugs. These offences were said to have been committed on 5 November 2015. The informant in those matters is Senior Constable Shadab Shery. They too are listed for mention at Moorabbin Magistrates' Court on 2 November 2017.

24 The Director submitted that the decision of the magistrate to grant bail was not reasonably open on the material placed before the Court. It was submitted that the respondent had not shown 'exceptional circumstances', and that the evidence made clear that he posed an unacceptable risk of committing further offences, if he were to be released on bail.

25 In this Court, the Director relied on two affidavits, each affirmed by a solicitor in the Office of Public Prosecutions. The first, dated 28 August 2017, recounted the history of the court proceedings regarding this matter. There was a supplementary affidavit filed on behalf of the Director on 3 October 2017. That contained a copy of the respondent's prior convictions as at 6 February 2017.

26 The Director relied upon the seriousness of the alleged offending, the respondent having sold some 201 grams of methylamphetamine at about 81 percent purity to the covert operative, more than double the commercial quantity of that drug. Likewise, he sold more than twice the commercial quantity of 1,4-Butanediol. Additionally, it was noted that the two firearms that he sold to an undercover operative had been found to be operational.

27 In summarising the respondent's alleged offending, the affidavit referred to each of the six separate transactions by which the respondent sold methylamphetamine to a police covert operative. It also referred to the sale of a modified 12-gauge shotgun and ammunition, and a set of green plastic knuckle dusters. It summarised the telephone intercepts and call charge records involving the respondent, and asserted that these established clearly that he regularly sold methylamphetamine and 1,4-Butanediol.[8] It also asserted that he had access to firearms which he had offered for sale. There was then a discussion of what was found at the respondent's home, on 11 December 2016, when a search warrant was executed. The items seized included drugs, scales and a starting pistol in a black plastic container.

28 The Director noted that, unlike the respondent, his two co-accused, Bau and Arena, had no prior convictions of any kind. Moreover, they were not charged with selling firearms, as he was. In addition, unlike the respondent, neither of them was on bail at the time of his alleged offending.

29 The Director submitted that the respondent had shown a demonstrable disregard for bail conditions. He was on two sets of bail at the time he committed the offences that are the subject of this appeal. The respondent had, on 5 September 2016, been granted bail in respect of other drug charges, but had engaged in the current acts of criminality almost immediately thereafter. It was said that telephone intercepts showed a blatant disregard for the bail conditions that had been imposed.

30 One such condition was a prohibition upon driving, which the respondent not only breached, but did so in circumstances where he was actually disqualified from holding a license. In addition, he failed to notify police of a change of address as required by his bail conditions at the time. The Director also referred to various passages in the transcript of the telephone intercepts that were said to establish, quite clearly, that the respondent was engaged in regular trafficking of drugs throughout the entire relevant period.

31 To make matters worse, so far as the respondent is concerned, he was serving an 18 month CCO, imposed on 3 June 2015, at the time of the alleged offending. Perhaps not surprisingly, he had a poor compliance record with that order. This included 25 'unacceptable absences', and a persistent failure to take up opportunities for drug treatment.

32 Finally, it was noted that the respondent had a prior conviction, in 2006, for having trafficked a large commercial of MDMA (ecstasy). He received a substantial term of imprisonment for that offence, some 25 months, that being his non-parole period on that occasion.

33 In support of the respondent's contention that this appeal should be dismissed, it was submitted that he had demonstrated 'exceptional circumstances' before the magistrate and further, that he was not an unacceptable risk. At the very least, it was submitted that the prosecution could not show that either of these findings was not 'reasonably open'. It was then submitted that, in any event, this Court ought, by way of a fresh application, grant the respondent bail, on strict conditions.

34 The affidavit filed in opposition to the Director's appeal deposed that this appeal proceeded upon the erroneous basis that the magistrate had relied upon delay alone to establish 'exceptional circumstances'. In fact, it was said, the respondent relied upon several matters, in combination, to overcome that particular hurdle. These included delay, the availability of residential rehabilitation, family support, and the availability of a sizable surety.

35 With regard to the first of these matters, it was said that what had occurred thus far constituted significant and inordinate delay. Between the commencement of the proceedings, in December 2016, and the date of the bail application, on 21 August 2017, there were four committal mention hearings, the first three of which were adjourned to allow the prosecution time to provide transcripts of telephone intercepts. The intercept material comprised 17,000 telephone calls and text messages. Transcripts of this material were provided in mid-July 2017. As indicated, the matter is presently planned as a contested committal, scheduled for one day, on 16 February 2017. It is submitted that the respondent will have spent two years in custody by the time this matter comes to trial, if he were not to be granted bail.

36 As regards rehabilitation, the affidavit speaks of the respondent's traumatic upbringing, including having been the victim of domestic violence in a dysfunctional family setting. It also speaks of his severe and chronic drug addiction, describing him as a 'broken man' at the time of his arrest. It notes that this was only his second time in custody, and his first time in an adult facility. It further notes the efforts that he has been making to engage in rehabilitative programs within the custodial setting. The respondent relies upon the fact that he has available to him a residential drug rehabilitation program, having reportedly exhausted all avenues of rehabilitation available to him in custody. He claims that this residential program is focused, intensive, and supervised. He submitted that further conditions could be imposed in connection with this program that would ameliorate the risk involved in granting him bail. He says he has successfully abstained from drug use since being granted bail, and is currently completing educational and vocational programs, as well as developing insight into his drug problems.

37 With regard to family support, it was noted that the respondent's mother and sister visited him regularly whilst he was in prison. His brother also visited him on occasion.

38 Finally, as regards a surety, up to $300,000 is now said to be available. It is said that the imposition of strict bail conditions would ameliorate any risk of further offending.

39 In the event that the appeal is allowed, and a fresh bail hearing is conducted, the respondent submitted that he has now been on bail for about five weeks. He had complied with all conditions, including residency at the Recover Oz residential facility. He claims to be progressing well in his steps towards rehabilitation. The evidence led before me today tends to support that particular claim.

40 The magistrate noted that this matter would not come to trial before, at the earliest, late 2018. By that stage, the respondent would have been in custody for the best part of two years. His Honour was distinctly unimpressed by what he regarded as an unacceptable delay.

41 The magistrate went on to say that he recognised that the respondent had done all he could, in a custodial setting, to rehabilitate himself from his drug addiction. He commented that the respondent was in need of appropriate therapy.

42 Having decided that 'exceptional circumstances' had been established, primarily, though not exclusively, by reason of delay, the magistrate turned to the question of whether, if released on bail, the respondent would be likely to revert to drug use. He considered that an appropriate therapeutic program would ameliorate the danger of that happening. He accepted that Recover Oz could provide that support. He recognised, however, that Recover Oz did not have continuous supervision of its residents. Rather, they were simply collected from various houses where they were accommodated and taken to various appointments for counselling and treatment.

43 His Honour also noted that there was on offer a substantial surety by the respondent's mother. He said that there was no doubt a risk that the respondent would reoffend. He had a history of being able to obtain drugs and weapons. He recognised that there were no doubt better programs within the community, that might provide more effective supervision of persons, such as the respondent. Recover Oz had only a limited capacity to do so. He concluded that, whatever risk there was of further offending could be moderated to an acceptable risk.

44 I have read carefully the material upon which the Director relies in support of this appeal. This includes transcripts of telephone intercepts involving the respondent, which are, to put it mildly, strongly supportive of the overall prosecution case against him regarding large scale trafficking in drugs.

45 I have also noted the list of contraventions of the CCO made at the Dandenong Magistrates' Court on 3 June 2015, in connection with various drug offences. As the Director contends, that list is lengthy, and indicates an inability, or unwillingness, on the part of the respondent to comply with conditions laid down by the Court. I note that the respondent began accumulating unacceptable absences from the very early stages of the order. It is fair to say that a good deal of latitude appears to have been accorded to him by those responsible for supervising him under the CCO.

46 I have also read several reports regarding the respondent's drug addiction. On 25 February 2017, George Thompson, Clinical Director of Recover Oz prepared a report concerning the work of that organisation. That report was tendered below. Mr Thompson spoke of the respondent's chaotic life arising out of his addiction, and his willingness to engage in rehabilitation. He noted that the respondent began using drugs when he was just 18, and soon became addicted to ice and GHB. He described the respondent as having suffered severe post-traumatic stress disorder over his grandmother's murder. Given that his addiction had continued for more than 12 years by that stage, it would take at least three months to wean him off drugs. Mr Thompson posited a number of conditions that would be necessary if bail were to be granted.

47 I have also read a psychiatric report from Dr Nina Zimmerman, a consultant psychiatrist, who saw the respondent after his arrest in December 2016. That report too was tendered before the magistrate. She observed, in particular, that the respondent had a strong family history of schizophrenia, and was biologically predisposed to mental illness.

48 I note that a police officer, who was not the informant in any of the matters regarding the respondent, gave evidence at the bail hearing before the magistrate that he held concerns about Recover Oz. He said that he had previously had another accused bailed to attend that facility. However, he was not informed when that accused was 'kicked out' of the facility.

49 Finally, I note also that the respondent has completed various rehabilitative programs while in custody, including those specifically directed towards managing ice addiction, and that his urine samples in custody were clear. So too, it should be added, have been his urine samples whilst on bail.

50 In my view, the magistrate fell into error in granting the respondent bail. I am prepared to accept that it was 'reasonably open' to his Honour to find that there were 'exceptional circumstances'. I should add, however, that I would not have come to that conclusion myself. When it comes to 'unacceptable risk', I consider that it was not reasonably open to the magistrate to find that the current arrangements at Recover Oz were sufficient to ameliorate the prospects of his committing further offences whilst on bail. He has an appalling record of failing to comply with court orders, even in circumstances where he has been extended considerable leniency. However well-meaning those behind Recover Oz may be, and I was impressed with the evidence led before me regarding the bona fides of that organisation, the facilities offered fall well short of adequately ameliorating that risk, given the seriousness of the alleged offending, the respondent's lengthy history of drug addiction, and his record of breaching court orders.

51 For that reason, I am satisfied that a 'different order' should have been made by the magistrate. On the material before him, his Honour should have refused bail. The appeal before this Court must therefore succeed.

52 As regards the fresh application for bail that was made before me, based on additional material, I find, unconstrained by any requirement that there be 'unreasonableness' as to the decision below, there are no exceptional circumstances.

53 I also find that the prosecution has clearly established that, if granted bail, the respondent poses an unacceptable risk of committing further offences.

54 I should say that I do not regard the delay in this case as being anything like sufficient to give rise to exceptional circumstances. The rehabilitation facilities available at Recover Oz, though commendable in themselves, seem to me to fall well short of indicating that this respondent, with his background and history, does not pose an unacceptable risk of further offending, and certainly do not contribute significantly to his case for establishing exceptional circumstances. There is nothing exceptional, or even unusual, about family support, or the availability of a substantial surety. There is nothing exceptional about the combination of these factors.

55 Accordingly, I would allow the Director's appeal and set aside the order granting bail below. I would refuse bail in response to the fresh bail application that has been made before me.

56 In summary, although it was (just) reasonably open to the magistrate to find exceptional circumstances, it was not reasonably open to reject the Crown's submission that he was an unacceptable risk of offending. I find, based on the material before me, that there are no exceptional circumstances, and that the Crown has established that the respondent is an unacceptable risk of committing further offences.

[1] (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991), 29-30.

[2] [2017] VSC 116.

[3] [2009] VSCA 26; (2009) 20 VR 717. See also Fernandez v DPP [2002] VSCA 115; (2002) 5 VR 374, 390.

[4] It does not follow, as the respondent contended, that this Court will only allow an appeal if it concludes that the magistrate below arrived at a finding or findings that were 'not reasonably open'. That may be too high a threshold. Put that way, it comes very close to saying that nothing short of an error of law, and perhaps even a jurisdictional error, in the sense described by the High Court in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179, is essential in order for the Director to succeed under s 18A. If a judge of this Court is of the firm view that, on the material before the Court below, there were no exceptional circumstances, or that the respondent represents an 'unacceptable risk' that should trigger a finding that 'a different order should have been made', within the language of s 18A(6). In other words, the appeal under that section should be seen as being by way of rehearing, rather than akin to judicial review of a discretionary judgment.

[5] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[6] Bail Act 1977 s 4(2)(d).

[7] A substance that can apparently be used as a recreational drug.

[8] It was said that he had also purchased a very large quantity of this drug, some 48.55 litres.