MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 87 (30 April 2010)

4 At approximately 11 am on 4 December 2009, investigators from the Organised Crime Squad executed a search warrant at a house in Stirling and found 2.67 kg of methylamphetamine hidden in the garage of the premises. The occupant of the house was Paul Dasanmartino who was the husband of Mr Milenkovski's cousin. He was charged with possessing the methylamphetamines with intent to sell or supply.

5 While the police were conducting their search, Mr Milenkovski arrived at the house driving his Toyota Prado motor vehicle. A search of the vehicle revealed a loaded .22 calibre pistol concealed in the arm rest of the driver's door. The serial number of the pistol had been drilled out so as to make the firearm unidentifiable.

6 The police also found $13,765 in cash and six mobile phones in the vehicle. Only one of those mobile phones had been subscribed for in the name of Steve Milenkovski. Milenkovski was arrested and charged with firearms offences and then released to bail.

7 Another mobile phone was seized from Dasanmartino and a subsequent download showed that it had been used to exchange five text messages with one of the mobile phones in Milenkovski's vehicle. Those exchanges occurred between 10.35 am and 10.50 am on 4 December 2009, and it is open to infer that they constituted a coded discussion concerning an imminent collection of drugs and the payment of money.

8 It is highly relevant that both of the mobile phones used in that exchange had been subscribed for in the same false name and that they were first activated on 1 October 2009. Furthermore, there is evidence before me (in par 13 of the affidavit of Detective Sergeant Darren Lindsay Taylor sworn 16 April 2010) that it is common for persons involved in illicit drug dealing to subscribe for mobile phones in false names in an endeavour to frustrate monitoring by law enforcement officers. Detective Sergeant Taylor is a Detective Supervisor at the Organised Crime Squad and he has been involved in numerous drug investigations.

9 Between 18 January and 25 February 2010 police investigators lawfully intercepted a particular mobile telephone service which was allegedly being used by Milenkovski. That service was an Optus connection subscribed for in the name of Lawrie Wood, born on 2 August 1978, with a listed address of 147 Murray Street, Wembley.

10 Although there is an issue as to whether or not Milenkovski in fact used that mobile service while it was being monitored by the police, he was ultimately found in possession of the phone which was connected to the service. It is also relevant that the address of 147 Murray Street, Wembley does not exist, and that a police search of relevant computer databases cannot locate any person with the surname Wood who was born on 2 August 1978.

11 There is also evidence (which I will refer to shortly) of movements by Milenkovski on 25 February 2010, which correlate with the content of particular text messages. In my view, all of these circumstances combine to raise the very strong inference that Milenkovski was operating the mobile telephone service during the period it was being monitored by the police. (Accordingly I will refer to it as 'Milenkovski's phone').

12 Between 29 January and 25 February 2010, numerous text messages passed between Milenkovski's phone and phone services operated by other parties. The content of these various text messages are set out in annexure 'DLT 2' to Detective Sergeant Taylor's affidavit, and the exchanges with two other parties (0424241990 and 0468951375) were particularly significant.

13 The initial exchanges with the first of these other parties were very tentative, and Milenkovski was told to 'keep the convo minimal' (message 5801). It would seem from what followed that there must have been some additional form of communication between the parties because two days later, Milenkovski (in 6540) referred to 'the two things that were asked'.

14 There was then an exchange of text messages (6542 6571) which were obviously drug related. Milenkovski referred to being given a 'sample' (6550) in 'a small container with some in it to test' (6552). Milenkovski was then asked 'Hav U got the long name I asked for?' (6544) and he ultimately responded 'methyl benzyl ketone' (6557). Methyl benzyl ketone is a precursor chemical for the manufacture of methylamphetamines.

15 The second significant exchange of text messages was with the operator of phone service 0468951375. Although many of these messages were in coded terms, their contents (from 6962 onwards) give rise to a compelling inference that they were concerned with the availability of a very large quantity of methylamphetamines and Milenkovski's ultimate decision to acquire 5 kg of those drugs. On 11 February 2010, arrangements were made for the 5 kg to be sent 'the very slow way through' (8333) and on '10 days' credit' (8335 8336).

16 On 12 February 2010, law enforcement officers in New South Wales observed one Yavuz Ozan deliver a Daihatsu motor vehicle to a transport company. The Daihatsu was then transported by road to Perth via Adelaide, South Australia.

17 On 16 February 2010, a Western Australian detective in company with other law enforcement officers, attended at the transport company's depot in Adelaide and seized 5 kg of methylamphetamine from the spare tyre of the Daihatsu. The methylamphetamine had an average purity of 60% and was capable of being diluted with cutting agent to 20 kg at the average street level purity of 15%.

18 When the Daihatsu arrived at the transport company's depot in Perth on 22 February 2010, police officers inserted 5 kg of an inert substance into the spare tyre. At 2.21 pm on 25 February 2010, the Daihatsu was collected by Ozan who drove it to a shopping centre car park in Bayswater. Ozan then caught a taxi to the Charles Hotel in North Perth where he handed the keys of the Daihatsu to an Asian man by the name of Hao Bi.

19 At 2.43 pm on the same day the party operating the service 0468951375 sent a text to Milenkovski's phone stating that 'the car is over there now Babe. When do you want to pick it up?' (10979). At 2.53 pm, Milenkovski was also told that 'My oriental girl will be there' (10993).

20 At 5.12 pm there were crossed messages between Milenkovski's phone and the other party. The first message to Milenkovski was that 'Girl is in spare tyre' (11054). In response to Milenkovski's question 'Where is the girl' (11055) he was advised 'Spare wheel. My girl is on the way. 40 minutes away' (11056).

21 At 5.23 pm, Milenkovski sent a text message giving directions to a place consistent with the KFC store at the Dog Swamp Shopping Centre in Yokine. At 6 pm, a law enforcement surveillance officer observed Hao Bi speaking with an associate of Milenkovski near the KFC store at the Dog Swamp Shopping Centre. At about that time, Milenkovski was observed on several occasions to drive a vehicle through the Dog Swamp Shopping Centre.

22 Shortly afterwards, the Daihatsu was driven by Milenkovski's associate to a house in Stirling. The police later searched that house, and found in the garage of the premises the 5 kg of inert substance which had previously been in the spare tyre of the Daihatsu.

23 When Milenkovski was apprehended by police on 25 February he was yet again found in possession of six mobile phones. One mobile phone was subscribed for in the name of Steve Milenkovski and the remaining five mobile phones were subscribed for in names other than Milenkovski. The mobile handset which provided the service which had been previously monitored by police, was one of those in Milenkovski's possession at the time of his apprehension.

24 Mr Milenkovski is 32 years of age and has no significant prior record of offending. In his affidavit sworn 9 April 2010, he claims that he is ordinarily involved on a daytoday basis with the running of three businesses. These are the 'Pro Cut Tiling business', 'Alexander Heights Meat & Poultry', and 'Sticks Farming'. The tiling business is his 'key source of income' but he also works as the manager and delivery driver of the butcher shop. In addition, he is engaged on a seasonal basis in seeding, harvesting, and shearing for the farming operation.

25 Mr Milenkovski owns real estate and other property to a value of between $1.5 million to $2 million. All of this property is subject to a freezing order made under the Criminal Property Confiscation Act 2000 (WA).

26 I am informed that Mr Milenkovski has previously stood trial for serious drug charges of which he was acquitted in 2008. In respect of those matters he was released to bail between 2006 and 2008, and he fully complied with all bail conditions. If he is granted bail on the present application, he will reside with his mother in Tuart Hill, and abide by any conditions that this court sees fit to impose.

Whether exceptional circumstances must be shown

27 In Jemielita v The Queen (1994) 12 WAR 362, the Court of Criminal Appeal (per Pidgeon J at 367 368) held that:

In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown. The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and ... are principles the community would expect in cases of this nature. I do not consider that there has been an intention in the Bail Act to exclude them. On the contrary, I consider that the omission of a reference to a right to have bail granted and the emphasis on the discretion to grant it with power to consider all relevant questions and matters results in the requirement that the discretion be exercised in accordance with the established principles. ... I consider therefore that Ipp J was correct in WCVB v The Queen [(1989) 1 WAR 279] in saying that the Bail Act has not altered these earlier principles.

28 Further authority to this effect is to be found in RibotCabrera v The Queen [2004] WASCA 101. There it was held that cases where long periods of imprisonment could be expected upon conviction, fell into a 'special category', which required an applicant for bail to demonstrate exceptional circumstances. At [50] EM Heenan J stated that this was an illustration of:

[T]he wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial

29 In Rauch v The State of Western Australia [2005] WASC 241, McKechnie J observed that the discretion to grant or refuse bail is at large, and that it was to be exercised in accordance with the principles set out in the Bail Act. Accordingly, it was 'wrong to encrust upon the words of the statute a socalled common law principle that an applicant must show exceptional ... circumstances to justify bail'. For these (and other) reasons his Honour doubted the contrary view expressed by Ipp J in WCVB v The Queen, but did not refer to the decision in Jemielita.

30 In The State of Western Australia v Sturgeon [2005] WASC 256, EM Heenan J [41] agreed that there was no indication in the Bail Act that exceptional circumstances must be shown before bail could be granted in a serious case. To the contrary, the general discretion to grant bail was to be exercised without any single factor being regarded as determinative or prohibitive. Nevertheless, the prospect of imprisonment for a lengthy period provided a powerful incentive to abscond and this should not be ignored. In his Honour's view:

[T]hat powerful incentive to abscond must be specifically recognised and addressed in any application for bail for a serious offence, and in many instances it is likely to be a crucial, if not the crucial, factor in leading to the refusal of bail. But that may not always be so and, in my respectful view, it would be a fetter upon the exercise of the general discretion to assume that it must be so.

31 In Mercanti v The State of Western Australia [2005] WASCA 254 the Court of Appeal [42] referred to Rauch and Sturgeon, and indicated that the decision in Jemielita may need to be revisited. For the present, and in the particular circumstances of the present case, I consider that it is appropriate to apply the broader principle as expressed in RibotCabrera. Obviously, and as a matter of 'logic, experience and common sense', charges of conspiring to possess large quantities of illicit drugs provide the defendant with an inherent incentive to abscond. The larger the quantities of drugs involved, and the stronger the prosecution case, the greater is the need for the applicant seeking bail to demonstrate that he will meet the obligations of bail by appearing at his trial.

32 I turn now to the particular questions posed in cl 1 of Pt C of the First Schedule to the Bail Act. Relevant to the particular issues raised in the present application, those questions are:

- whether, if not kept in custody, Mr Milenkovski may fail to appear in court in accordance with his bail undertaking;

- whether, if not kept in custody, he may commit an offence;

- whether there are any conditions which could be reasonably imposed which would sufficiently remove the above possibilities;

- whether the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

33 In considering the first two questions, I am required to have regard to the matters set out in cl 3 of the schedule as well as any others I consider relevant. These matters include the nature and seriousness of the offences and the probable outcome in the event of conviction; factors personal to Mr Milenkovski such as his character, previous convictions, associations, home environment, and financial position; and the strength of the evidence against him.

34 Having regard to all of these matters, the factors which favour a grant of bail to Mr Milenkovski are his lack of any significant prior convictions, and his compliance with bail conditions when he was previously charged with drug offences. I also accept that the likely forfeiture of approximately $1.5 million $2 million worth of frozen property in the event of him absconding could potentially favour a grant of bail. (However that would depend on the strength of the evidence against him and whether or not he might perceive that forfeiture will occur in any event).

35 With regard to Mr Milenkovski's assertions as to his employment activities, there is evidence before me (in the affidavit of Peter McGee sworn 15 April 2010) that the trading name of 'Pro Cut Tiling' was deregistered on 6 April 2009, that the only employees of the business have not worked since December 2009 and that they are owed wages for work done. Furthermore, the business documents of Alexander Heights Meats & Poultry and Sticks Farming (currently being examined by forensic accountants) suggest that Milenkovski was not actively involved in the daytoday affairs of either enterprise and that he was no more than a silent partner.

36 In my view, there is a very strong circumstantial case against Mr Milenkovski and particularly in respect of the second alleged offence. The content of the telephone intercepts provide compelling evidence of his involvement in drug dealing generally, and with the 5 kg of methylamphetamine (seized on 25 February 2010) in particular. Further corroboration of his involvement comes from the evidence as to his movements (in relation to both alleged offences) which correlate with particular text messages. There is also the coincidence that he was in the close vicinity of both quantities of methylamphetamines (or in the second instance, purported methylamphetamines) at the times that they were being delivered.

37 It is suggested on Mr Milenkovski's behalf that the mobile telephone found in his vehicle may well have been used by his brother or some other unknown person who had access to his car. However, there is the coincidence of the applicant being found in possession of six mobile phones (five of them in false names) on two separate occasions. These alleged facts, combined with the evidence of his movements which correlate with particular text messages, give rise to a strong inference that he was operating the relevant mobile phone at the material times.

38 In the event that Mr Milenkovski is convicted of the charges against him, he faces the prospect of very lengthy terms of imprisonment. Selfevidently, and in light of the strong prosecution case, if Mr Milenkovski is not kept in custody, there will be a significant incentive for him to take flight in order to avoid punishment. In these circumstances, the fact that his frozen property would be forfeited in the event of conviction would be unlikely to deter him from taking that step. In the end, I consider that there is a substantial risk of flight, and that no conditions of bail can be reasonably imposed which would sufficiently remove the possibility of his nonappearance at trial.

39 In my view the State has also established its second ground for opposing bail, namely that Mr Milenkovski may commit a further offence if not kept in custody. He had a very close call on 4 December 2009 and was fortunate not to be arrested on a serious drug charge at that time. It should have been obvious that the police would be interested in his future activities, but notwithstanding this (on the evidence before me) he continued to deal in illicit drugs. These circumstances suggest that he may have a similar attitude towards further offending at the present time.

40 For these reasons, it is unnecessary to consider the State's third ground, and the application for bail will be refused.