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[2000] WASC 268
Supreme Court of WA
2000-11-02
Mr J, Heenan J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MUSARRI -v- THE QUEEN [2000] WASC 268
Criminal procedure - Bail - Conspiracy to possess heroin with intent to sell or supply - Supply of amphetamine - Strength of prosecution case - Delay in being brought to trial
Bail Act 1982, Sch 1 Part C cl 1 and cl 3
WCVB v The Queen (1989) 1 WAR 279
1 HEENAN J: Following an investigation interstate by several police and other government services the applicant was arrested early last month for offences under the Misuse of Drugs Act 1981. He faces three charges: one of conspiring to possess heroin with intent to sell or supply it to another and two of supplying amphetamine. Now he applies to this Court for bail, having failed in a similar application to the Court of Petty Sessions.
2 The prosecution case as to the conspiracy charge can be summarised as follows.
3 In the early part of May 2000 Dimi Delovski and Saso Delovski, brothers residing in Victoria, brought or sent a quantity of heroin to Western Australia. The applicant, a resident of this State, purchased some of it. On Wednesday 17 May he complained to Dimi Delovski about the quality of the drug, saying that he had not looked at it before paying or he "wouldn't have given the money over". After further discussion, on the following day Delovski arranged for his brother Saso to be in Perth on Thursday 25 May with a further quantity of heroin, telling the applicant that the drug would "go first to your hand, then you make your price".
4 On Monday 22 May Dimi Delovski gave a package to Slobodan Veselinov, a friend of his residing in Melbourne, with instructions to take it to Perth. Veselinov was to be paid $5,000 for doing so. On the following day Veselinov was driven from Melbourne to Adelaide. There, as arranged by Delovski, he met two men. They gave him a train ticket and took him to the train station. There he boarded a train which set off for Perth.
5 At 6.23 on the evening of Wednesday 24 May Dimi Delovski telephoned the applicant and, among other things, told him that his brother Saso would arrive by air from Melbourne in two hours time and would call the applicant. At 8.40pm Saso Delovski arrived at Perth airport on a Qantas flight from Melbourne. He telephoned Justin Paul Vodanovich seeking directions to the latter's home at Marangaroo. At 9.50pm the applicant telephoned Vodanovich. In the conversation which followed, after the latter had said that he was soon to meet Delovski, the applicant instructed Vodanovich to get a sample. At 9.55pm Delovski arrived at Vodanovich's home. Five minutes later he telephoned the applicant.
6 At 8 o'clock on the morning of Thursday 25 May Saso Delovski met the train in which Veselinov had travelled from Adelaide. He took Veselinov by taxi to a motel in Highgate, and they obtained a room there. At 8.48 on the same morning the applicant telephoned another man and said, among other things, "My mate from Melbourne came down. Do you understand? I've got a whole heap."
7 Later that morning Saso Delovski met Vodanovich in the Galleria Shopping Centre at Morley. Then he returned to the motel and spent the night there with Veselinov. Meanwhile, Dimi Delovski had telephoned the applicant. The latter told him that he hadn't seen Saso yet and would arrange something through his mate.
8 On the morning of Friday 26 May Saso Delovski went by taxi to Eagle City Motors in Highgate. Police officers apprehended him near those premises at 10.26am. Within the next ten minutes other police officers apprehended Veselinov in the room at the motel. Under a table there they found the package which Dimi Delovski had entrusted to Veselinov in Melbourne. It contained approximately 524 gm of heroin. The drug was 25 or 26 per cent pure and, as it was, it had a market value of approximately $100,000.
9 Meanwhile, at 10.57am the applicant and Vodanovich had arrived at Eagle City Motors. The applicant left ten minutes later. At 11.45am from a telephone box in Balga he made a call to the mobile telephone which Saso Delovski had been using and which police had seized more than an hour earlier. Within a minute or so of that call another call was made to the same mobile telephone by Dimi Delovski, presumably from Melbourne. At 12.51pm Dimi Delovski telephoned Vodanovich. Five minutes later, having received another telephone call, the applicant said to the caller, "Forget it. The cops just grabbed one of our boys outside where we were ... we are just trying to work out who it was and why, right, we were supposed to meet him, do you understand. There's no way we can f... move, we're being tagged everywhere, and I mean tagged. The boys from Melbourne are ringing back in a few minutes to find out what's going on."
10 The prosecution case as to the first charge of supplying amphetamine can be summarised as follows.
11 On 23 May 2000, in the course of a telephone conversation with Leonard Kirby, the applicant agreed to supply 6 oz (approximately 170 gm) of amphetamine to him. The applicant then arranged with Steven Colman to make the drug available to Vodanovich. On the following afternoon the applicant and Vodanovich met Kirby at a store in Walter Road, Morley. A short time later police officers apprehended Kirby travelling in a motor vehicle in Kewdale. They searched the vehicle and located a package containing approximately 167 gm of amphetamine.
12 The prosecution case as to the second charge of supplying amphetamine can be summarised as follows.
13 On Monday 31 July 2000 in a telephone conversation with one Tony Cooper, the applicant agreed to supply 4 oz (approximately 113 gm) of amphetamine to Cooper. On Wednesday 2 August one Clive Richard Burke spoke to Cooper and confirmed the arrangements. That night Cooper and Burke went to the applicant's residence in Balga. Later that night police officers stopped Cooper while he was travelling in a motor vehicle on the Kwinana Freeway in Jandakot. They found 80 gm of amphetamine and 5.5 gm of heroin in his possession.
14 As we have seen, Saso Delovski and Veselinov had been arrested on 26 May and Kirby and Cooper had been arrested on 24 May and 2 August respectively. Vodanovich, Colman, Burke and the applicant were not arrested until the investigation into the heroin transaction was completed.
15 Meanwhile, on 30 May Veselinov made a written statement to the police as to his part in the conspiracy to possess the 524 gm of heroin. On 12 September police officers charged the Delovski brothers, Vodanovich and the applicant with the conspiracy. On 4 October Vodanovich, Colman and the applicant were charged with supplying the 167 gm of amphetamine on 24 May. On the same day the applicant and Burke were charged with supplying the 80 gm of amphetamine on 2 August. When he came before the Court of Petty Sessions at Perth on 5 October 2000 the applicant applied for bail but it was refused, it seems, on the ground that "exceptional circumstances" had not been demonstrated.
16 The applicant is a director of a company engaged in panel beating, spray painting and other business activities from premises in East Victoria Park under the name of "Northline Radiators". The company employs eight persons and its annual turnover is substantial. The applicant has seven children, the youngest of whom is 3-years-old, and a foster daughter who is 18. His parents, his sister and his three brothers all live in Western Australia. He does not have a passport. His cousin is prepared to act as his surety and to provide security for $200,000. His family and a number of acquaintances in several Australian states also are prepared to assist him in that way.
17 Counsel for the applicant informed the Court that, because of the present state of the lists in the Court of Petty Sessions and the District Court, there is a two year wait between arrest and trial in respect of charges such as the present ones. He submitted that the applicant's continued confinement not only will be detrimental to the welfare of the children who are in his care but also very likely will lead to the collapse of his business and will make it difficult for him to assist in the preparation of his defence to the present charges and to proceedings brought against him under the Crimes (Confiscation of Profits) Act 1988. Presently the applicant intends to have a preliminary hearing.
18 The charges faced by the applicant are very serious. Upon conviction of the conspiracy offence he would be liable to a fine not exceeding $75,000 or to imprisonment for a term not exceeding 20 years or both. In relation to each of the other offences with which he is charged the fine would not exceed $100,000 and the imprisonment 25 years (Misuse of Drugs Act, s 6(1)(a), s 33(2)(a) and s 34(1)(a)). If he were convicted of the conspiracy it is likely that he would be imprisoned for 10 years or thereabouts. Following conviction on either of the other charges it is likely that he would be imprisoned in each case for a lesser but substantial term. If convicted of two or all of the three charges he could expect a sentence of 12 years imprisonment or more, even after application of the totality principle.
19 The applicant was born on 25 January 1949. He has a long record of court appearances, the first when he was 13-years-old. He was sent to prison for the first time nine years later. In September 1984 in the District Court at Perth he was sentenced to imprisonment for a total of 15 years for conspiracy to import drugs and for receiving. He was released, it seems, as the end of the minimum term of 8 years which had been fixed by the Court. On 23 December 1992 he was sentence to a total of 3 years imprisonment for two counts of possessing heroin with intent to sell or supply it to another. In the following September he was sentenced to a further two years imprisonment for selling or supplying morphine.
20 The prosecution case in relation to all three charges is based mainly on the evidence of police officers who carried out intensive surveillance of the applicant and others, including the tapping of their telephone conversations. The language used in those conversations contained little, if any, direct reference to drugs and the evidence is almost entirely circumstantial but, in my opinion, it shows clearly and convincingly that the applicant was a principal party not only to the conspiracy to possess the heroin but also to the supply of each of the two quantities of amphetamine.
21 As counsel for the applicant observed, the real question in this case is whether, if the applicant is not kept in custody, he might, in the words of cl 1(a) Sch 1 Part C of the Act,
"(i) fail to appear in court in accordance with his bail undertakings;
(ii) commit an offence;
(iii) endanger the safety, welfare or property of any person; or
(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."
22 There is no evidence before the Court showing that in the past the applicant has failed to answer to his bail or has offended while on bail, but his more recent court history does show that he has committed serious offences while on parole. Further, there is evidence that as recently as 26 September 2000 he has made disparaging remarks about Veselinov and has expressed a desire to do something about him, presumably because of the statement which the latter made to the police. The applicant's aggressive nature and the potential risk which he presents to others is illustrated by comments which he made in the course of tapped telephone conversations with third parties on the afternoon of 23 July 2000 as to how he proposed to deal with a person whom he suspected of stealing his utility motor vehicle and some of his other property.
23 The nature and seriousness of the offences with which the applicant is charged, the heavy sentence of imprisonment which he is likely to receive if he is convicted, his history of convictions for similar offences and the strength of the evidence against him - all matters referred to in cl 3 of Sch 1 Part C of the Act - have persuaded me that, despite the long time to trial, it would be inappropriate to grant bail in this case. The application is refused.
# Musarri
The Queen \[2000\] WASC 268
(1989) 1 WAR 279