El Ali v The Queen [2013] VSC 216

2 The offences arose from the police attendance at premises at 9 Bond Street, Hadfield to check upon the applicant to ascertain if he was complying with bail conditions. Upon knocking and identifying themselves as police, the police heard a commotion and a female in distress. A short time later, the applicant walked from the backyard and spoke to police. He did not reply to their query as to who was inside and if everyone was all right. The police again knocked on the front door and, on this occasion, Evangelia Christou opened the door. The police inquired of her welfare and then pushed past her to check the welfare of other persons inside. Once inside, the police observed a clandestine laboratory in operation in the living area of the house.

3 Both the applicant and Ms Christou were removed and placed in custody. The area was cordoned off and emergency services and the Clandestine Laboratory Squad attended. Upon doing so, the Clandestine Laboratory Squad determined that a complex laboratory had been in operation in almost every room of the house. Dangerous chemicals were present and materials used to manufacture drugs of dependence.

4 A pat-down search of the applicant located a bullet inside one of his pockets and a subsequent search revealed two loaded handguns underneath cushions in the loungeroom, a loaded pen gun inside a wardrobe, a small amount of ecstasy, two cannabis plants with transformers and a fan, approximately 1,000 rounds of ammunition, a loaded magazine for a semi-automatic pistol, a large volume of computers and phones and a small amount of steroids.

5 The applicant made a no comment record of interview.

6 The co-accused, Evangelia Christou, was granted bail on 28 November 2011. The application was unopposed. As I understand it, the applicant, in this matter, did not apply for bail until the completion of the committal on 3 December 2012. Bail was refused by the learned magistrate, and the applicant was remanded to appear at the County Court on 18 March 2013. On that date, Her Honour Judge Cottrell refused bail, having found that the applicant had failed to show cause and was an unacceptable risk of re-offending. The matter has been set down for trial on 13 November 2013.

7 As the applicant was on bail at the time of the alleged offences, he must show cause as to why his detention in custody is not justified, which involves an assessment of the unacceptable risk factors.[1]

8 Mr Morrissey SC, who appeared on behalf of the applicant, submitted that the applicant's personal circumstances have changed since the alleged offending. He is no longer abusing drugs and has the support of his family, in particular a brother who will provide employment. He also has the support of the mother of his two children, Rebecca Kelly. The applicant is able to live at the family home in Brunswick with his parents and two younger brothers aged 25 and 22 years.

9 Mr Morrissey SC submitted that the applicant has remained drug-free while in custody and has participated in a number of courses designed to assist him in his rehabilitation. He has the support and counselling services of a rehabilitation consultant, Mr Lamberti, available to him should he be released. Thus, it may be said that the applicant has strong ties to the jurisdiction and is not realistically a flight risk. Indeed, Mr McWilliams, who appeared on behalf of the respondent, conceded that it was not a matter upon which the Crown relied. Mr Morrissey SC submitted, frankly and fairly, that the Crown case, although circumstantial, was a viable one and, beyond that, he did not wish to argue its merits. Most significantly, Mr Morrissey SC submitted that, even if the applicant were convicted, the drug and firearm offences were at the lower end and therefore likely to secure a sentence of imprisonment either equal to time served or, at the latest, to ensure his release some time in 2014.

10 On 25 July 2012, the applicant was sentenced to 17½ months' imprisonment with a non-parole period of 5½ months by a Judge of the County Court in respect of the offence of recklessly causing serious injury to which he pleaded guilty. The sentencing Judge remarked that the applicant had good prospects for rehabilitation. The non-parole period has expired, and Mr Morrissey SC has submitted that if the applicant were to remain in custody it would subsume parole and deny him the benefit of it. For all of these reasons, he submitted, the applicant is not an unacceptable risk of offending and therefore has demonstrated that his further detention in custody is not justified.

11 Two of the applicant's brothers gave evidence on the application. Walid El Ali operates a building business, employing two apprentices and a builder, and has offered the applicant, who is a qualified carpenter, a position as a contractor. He would earn in the vicinity of $1,000 per week, and it appears that they had worked together previously in 2009, 2010, and 2011. Another brother Khalid El Ali, spoke favourably of the applicant and said that he would be prepared to notify the police if it became apparent that the applicant had relapsed into drug use.

12 Rebecca Kelly also gave evidence. She stated that the applicant had previously denied his drug use to her and now admits that he has a problem. He is determined not to associate with people who might lead him astray. He is now committed to being a father to his two sons, aged seven and three. Ms Kelly did not previously live with the applicant; indeed, she lives with her mother and two children some 40 minutes' drive away. Nonetheless, she and her children are involved in the applicant's family and on the occasions when she would see him, she would be prepared to report any relapse in drug use to the police, should it be evident.

13 The applicant is 32 years old. He has a modest criminal history which does not include any drug-related offending but does include two charges of failing to answer bail and one charge of contravening a violence intervention order. The offences for which he was on bail related to an assault upon Ms Kelly on 1 November 2010, who consequently took out an intervention order prohibiting contact and the like between the applicant and Ms Kelly and their children. It was this order which the applicant breached in April 2011 by posting on Ms Kelly's Facebook page. The intervention order was varied by agreement to permit the applicant to have supervised access to his children while he was in prison, but otherwise substantially operates until September 2013.

14 It is proposed that the applicant reside with his parents in Brunswick. The applicant's father also took out an intervention order against him in 2011. It appears that this order has lapsed. I accept that the applicant's family support him in this application and in the future, but the applicant's history discloses that his relationship with Ms Kelly and his father has been fraught with difficulties to such an extent that they have had to resort to court orders for protection.

15 The applicant has a history of non-compliance with court orders, and while the two charges of failing to answer bail may well be explicable by forgetting or mistaking the court date (although this appears to have happened twice in respect of the same matter), the breach of the intervention order and the fact that these offences allegedly occurred in breach of bail conditions very much tell against the applicant. He was not only on bail in respect of serious offences, that of intentionally causing serious injury, but he was bailed on condition that he live at the very premises in which the clandestine laboratory was found to be operating. Whether he was actually staying at those premises is a moot point, but while on bail for a serious offence at the place where he is conditioned to reside, he is alleged to have committed further serious offences, which include being in possession of firearms, two of which were found under the cushions of a couch, and a pen gun and magazine found in a wardrobe. Upon arrest, the applicant was searched and a bullet found in the pocket of the jacket he was wearing. The applicant appears to have admitted possession of at least one of the firearms in a taped telephone conversation between himself and Ms Kelly. Further, the detection of these offences only occurred when the police were doing a routine check to ascertain compliance with bail conditions, and it should be noted that the applicant could not be said to have been cooperative with the police on this occasion.

16 Although this may not be the most sophisticated or substantial clandestine laboratory, it most certainly was not a modest operation. The laboratory was said to be complex and was said to be operating in most of the rooms of the house and was active when the police observed it. The presence of two loaded firearms secreted under the cushions of the couch placed the operation of the laboratory in a more sinister context than that explained by the applicant's own drug use. The laboratory was operating in a house in a suburban street at a time when, according to his Counsel, the applicant was 'fried'[2]; thus quite possibly exposing neighbours and passers by to the risk of injury and the like. In these circumstances, the alleged offending may be said to be serious and would most certainly warrant the imposition of a sentence of imprisonment; in my view, beyond time served and possibly considerably longer.

17 The applicant has been charged with, inter alia, three counts of being a prohibited person in possession of a firearm, all of which were loaded and arguably found in his possession. He is a prohibited person by reason of the intervention order in place at the time of the alleged offences. All of the charges relate to items found at the residential address that he was bailed to, which is where the clandestine laboratory was operating. This demonstrates a blatant disregard for the lawful obligations imposed upon him by the terms of his bail. Although an unacceptable risk of flight is not relied upon by the respondent and it may be accepted that the applicant has strong ties to the jurisdiction, the seriousness of these offences allegedly committed against the background of a failure to comply with bail conditions and his two convictions for failing to answer bail demonstrate that the applicant does pose an unacceptable risk of offending.

18 Mr Morrissey SC submitted that the applicant's family members would provide support and report to the relevant authorities if the applicant began to regress and, indeed, Khalid El Ali, Walid El Ali and Rebecca King confirmed this when giving evidence. However, in the past, family members, although genuine and well intentioned, accepted the applicant's assurances that he was not using illicit drugs; they did not report his criminal conduct and drug use when on bail. Consequently, there are realistic doubts as to whether the family members would be able to ascertain whether the applicant is relapsing or engaged in other criminal conduct, particularly in circumstances where a drug laboratory located in the house where he was bailed to and where he was said to be living appeared to be undetected by the family.

19 Further, the applicant has been the subject of two intervention orders. Indeed, taken out by the very people whom it is now proposed will support him; his father, to whose home it is proposed that he be bailed; and Ms Kelly, the mother of his children with whom he will have ongoing contact. Although they have demonstrated an ability to resort to the law in order to regulate the applicant's behaviour and protect themselves from him (which of itself is a concern), nonetheless this gives rise to very real concerns that their offers of support, although genuinely proffered, can realistically be sustained.

20 The applicant has demonstrated good behaviour in prison and a desire to rehabilitate himself, demonstrated by the numerous courses that he has completed, his preparedness to engage in drug counselling, and what is said to be his insight into his drug use. However, the history of significant drug use, combined with the fact that he was on bail for serious offences when he allegedly committed these serious offences, demonstrate that the applicant is an unacceptable risk of re-offending while on bail, in that he may either relapse into drug use and/or commit further offences.

21 For these reasons, the applicant has not shown cause as to why his detention in custody is not justified and, accordingly, bail is refused.

[1] Re Fred Joseph Asmar [2005] VSC 487.

[2] Transcript of proceedings, 23 April 2013, 5.