//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2015] VSC 775
Supreme Court of Victoria
2015-12-17
JOHN DIXON J
Original judgment source is linked above.
[2015] VSC 775 First Revision: 2 February 2016
BAIL - Application for bail - Exceptional circumstances demonstrated - Strength of Crown case - Delay between 21 and 24 months - Personal circumstances of applicant - Opportunity for inpatient rehabilitation program placement, treatment of untreated mental illness and employment - Unacceptable risk not demonstrated in context of strict conditions - Bail granted - ss 4(2)(aa)(ia), 4(2)(d) Bail Act (1977).
1 The applicant was arrested on 12 June 2015 by police from Mill Park Divisional Response Unit and charged with the following offences: five counts of trafficking in a drug of dependence; six counts of possessing a drug of dependence; five counts of a prohibited person possessing an unregistered firearm; two counts of possessing cartridge ammunition; two counts of possessing a prohibited weapon; one count of dealing in property that was suspected to be the proceeds of crime, and one count of making a threat to kill.
2 The applicant applied for bail. His alleged trafficking in a drug of dependence involved 577 grams of methamphetamine where a commercial quantity is 500 grams, less than 100 grams of MDMA in respect of which a traffickable quantity is three grams, and 4.9 grams of cocaine in respect of which a commercial quantity is 3 grams.
3 Section 4(2)(aa)(ia)of the Bail Act requires that the court shall refuse bail unless the court is satisfied that exceptional circumstances exist which justify a grant of bail.
4 The applicant is 28 years of age having been born on 23 September 1987. He is currently on remand at the Metropolitan Remand Centre. He was under police surveillance between 27 April and 11 June 2015. On 30 April 2015, he was intercepted by police when in a Hyundai motor vehicle but was released without charge. On 12 June 2015, the address where the applicant resided was searched, and the following items were located:
5 The same day police searched for a 2003 Toyota Camry sedan, registered in the name of the applicant's mother, and located it 350 metres from the house being searched. There was no surveillance of the applicant in that vehicle, and there is an issue to be determined at trial whether the car and its contents were in the possession and control of the accused at the time.
7 The applicant has been in custody since his arrest on 12 June 2015. On 16 July 2015, he applied for bail with legal representation. On that occasion the informant gave evidence, as did Mr George Thompson of RecoverOz, who had assessed the applicant and found him suitable for entry into the RecoverOz Rehabilitation Clinic.
8 On 21 July 2015, the magistrate ruled that while exceptional circumstances had been established, the applicant was an unacceptable risk of committing further offences whilst on bail, which was refused.
9 If not bailed, by the time of the contested committal scheduled for 29 and 30 March 2016, the applicant will have spent 292 days or nine months and 18 days in custody. With anticipated delays in the County Court of Victoria at Melbourne for a contested trial, it can reasonably be expected that his trial may not be reached for some 12 months thereafter; that is sometime in March, April or May 2017. The applicant faces a considerable period in remand of somewhere between 21 and 24 months if bail is refused.
10 I will turn briefly to the principles. An accused held in custody is entitled to bail save in the circumstances defined by the Bail Act in which a court shall refuse bail. In the present circumstances, the court cannot grant bail unless the applicant is able to show cause why his detention in custody is not justified. The application of the relevant provisions of the Bail Act involve a differing onus of proof depending on the issues relevant to that decision. The applicant must establish exceptional circumstances. My approach to the evidence on this application is distilled from the many first instance decisions of this court that wrestle with the absence of the legislative guidance on the meaning of the phrase 'exceptional circumstances', which I do not propose to rehearse in these reasons.[1]
11 First, there must be something unusual or out of the ordinary in the circumstances relied on by the applicant before those circumstances can be characterised as exceptional. But although the hurdle is a high one, it should not be set so high that it is impossible for an accused person presently in custody to ever achieve bail.
12 Secondly, a variety of circumstances have been identified in the cases as relevant matters when considering whether there are exceptional circumstances, and these include:
13 Third, this list is not exclusive, and other factors might arise in a particular case which will contribute to the conclusion that exceptional circumstances have been established. No attempt to segment or compartmentalise the circumstances that will or will not meet the statutory standard is required. What is essential is that the court should consider all of the circumstances in their totality. However, while the failure to establish exceptional circumstances disentitles an applicant to bail, establishing exceptional circumstances of itself does not create an entitlement to bail because it may not demonstrate that the applicant's detention in custody is not justified.
14 Even if the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused if the prosecution establishes unacceptable risk. Under s 4(2)(d), bail must be refused if the court is satisfied relevantly that there is an unacceptable risk that the accused person if released on bail would fail to surrender himself into custody to answer his bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
15 Although the applicant must show cause why his detention in custody is not justified, it is for the prosecution to raise and establish the circumstances relevant to unacceptable risk. There is no doubt that the considerations relevant to exceptional circumstances bear on the assessment of unacceptable risk and vice versa.
16 Turning to the facts, the applicant submitted that exceptional circumstances were demonstrated by reason of a combination of factors.[2]
17 First, the anticipated delay during which the applicant would be on remand was said to be unacceptable.
18 Second, the period of six months in remand has in the particular circumstances of the Metropolitan Remand Centre, following the riot at the end of July 2015, created a particular hardship for the applicant that distinguishes him from others on remand in that his incarceration has aggravated and continues to aggravate a major depressive disorder and that he is now very vulnerable to adverse consequences from his mental illness.
19 Third, the applicant will accept strict conditions if granted bail which primarily will require him to immediately transfer into 24hour supervised drug rehabilitation treatment at a location well away from his prior place of residence. Those conditions will also include strict supervision by staff at the rehabilitation centre, a curfew, restrictions on mobile phone use, a substantial surety, and other commonly imposed conditions.
20 Fourth, the applicant has significant ties to the jurisdiction and the availability of stable accommodation, employment and family support.
21 Finally, the applicant submitted that he has a good record of compliance with prior conditions and has successfully completed a communitybased order and a suspended sentence.
22 The applicant submitted that he did not constitute an unacceptable risk of further offending or failing to appear on bail and was not likely to interfere with witnesses or endanger the public. He submitted that the prosecution contentions in respect of unacceptable risk were largely speculative. To the extent that they were not, the principal focus was on the risk that the applicant would re-offend. The applicant submitted that the immediate availability of residential drug treatment program at RecoverOz on stringent conditions constituted significant and effective management of the risk of reoffending, which was reduced to a level where it was not unacceptable by virtue of the support available to him on his release.
23 The applicant submitted that he had significant ties to the jurisdiction, and that other factors support that he was not a significant risk of failing to answer his bail. While he had a prior criminal history he had no prior convictions for drugs or failing to appear whilst on bail, and any suggested risk of flight could be countered by the availability of a substantial surety and the surrender of his passport.
24 The informant put four propositions: first, the applicant had not shown exceptional circumstances which justified the grant of bail; second, there was an unacceptable risk that the applicant if released on bail would commit further offences; third, there was an unacceptable risk that the applicant would interfere with, threaten or endanger the safety of witnesses; fourth, there was an unacceptable risk that the applicant if released on bail would endanger the safety or welfare of members of the public.
25 The informant asserted that the applicant had been heavily involved with drug trafficking for several years, and had been in the possession of firearms to reinforce his position in syndicates. He believed that after the seizure of drugs and cash the applicant would be indebted to unknown persons or drug trafficking syndicates. The informant assessed the total seizure of cash, drugs and firearms to be valued at between $350,000 and $400,000. The informant suggested that if the applicant was granted bail his personal safety would be placed at risk due to this substantial debt.
26 Although I raised an argument whether the informant entertained fears that the applicant might be forced to return to criminal activities by these circumstances that fear did not appear to attract significant support.
27 The informant submitted that the possession of three firearms with ammunition in the context of an interest in firearms on the part of the applicant being demonstrable from his prior history, was a matter of some significance. The informant submitted that the risk of interference or threats was based upon the circumstances of the threat that caused anguish to one member of the Police Force, and is the subject of a particular charge that the applicant now faces, and the propensity for the applicant to be shorttempered with a violent response that was evident from his prior criminal history and the outstanding charges from November 2014 concerning an incident in Fitzroy.
28 The applicant conceded that for the purposes of the application the case against him was a reasonably strong circumstantial case. However, he drew attention to several features of that case. First, the charges are confined to events on 12 June 2015, and that the case has not be expanded beyond that day. Second, that the quantities of drugs, while plainly above the relevant thresholds, are in the lower levels of the possibilities.
29 The contest in relation to the prosecution primarily revolves around two issues. First, the significant incriminating evidence was found in a car located away from the applicant's home. An issue for trial is who has access to that car, and who was the last person who exercised such access. The informant pointed to evidence that the car was registered in the applicant's mother's name, that it was parked approximately 350 metres away from the applicant's home, that police found in the applicant's room both the keys of the car and the key to the safe in the boot of the car, and that the car contained personal papers in the applicant's name.
30 The second issue for trial is that the prosecution must prove an intention to traffic in a commercial quantity of the drugs, and it must be borne in mind that applicant when interviewed made no admissions.
31 The applicant's concession about the nature and strength of the prosecution case appears to me to have been appropriate. The informant emphasised the large quantities of drugs, their high purity, the large amounts of cash that was located and the presence of multiple firearms with ammunition are significant, and I agree. The possession of weapons was matter of great significance.
32 Although a demonstrably weak prosecution case may be a factor contributing to the existence of exceptional circumstances the applicant's submissions did not suggest that the strength of the prosecution case was a factor that assisted him. Its relevance goes to the question of unacceptable risk, to which I will return.
33 In the present case the applicant has already been in custody for six months. Unless he changes his plea he faces the delay of a further three months until his committal and a delay of at least 12 months until his trial. As I said earlier, I would assess the prospect of delay from arrest to trial to be the vicinity of 21 to 24 months. This is an appreciable, and in my view, unacceptable delay in bringing charges against a single accused that do not involve substantial intercept and surveillance evidence or substantial numbers of witnesses. However, consistently with principle, the applicant did not submit that such delay on its own would be sufficient to warrant a conclusion that exceptional circumstances have been established. Nevertheless, it is in my view a matter that does point towards the existence of exceptional circumstances if supported by other matters.
34 The first other matter to which the applicant pointed was that the delay, that is the period of six months already served and the future period of time that the applicant faces, is compounded by the conditions in custody since the prisoner riots at the Metropolitan Remand Centre.
35 The daily regime to which the applicant is subjected can be described as onerous. He kept a diary, which was in evidence, which demonstrated that what was described as runout times vary, and have at times been non-existent to short periods of times and somewhat random depending upon whether and who is on duty as supervisor. There is no gymnasium. His requests to participate in courses have not attracted a favourable response. He has difficulties in submitting urine analysis to demonstrate that he has not been taking drugs, and his family have been restricted in their ability to visit him. But perhaps of greater significance is the second matter that is said to be a consequence of both the period of delay and the circumstances in which that delay is currently being experienced by the applicant.
36 In this respect a report was tendered from a psychiatrist, a Dr Cidoni. Dr Cidoni stated that the applicant is suffering from a number of mental health difficulties including a major depressive disorder, substance abuse and anger management issues. He expressed his opinion that the most appropriate course of treatment would be a rehabilitation program in the RecoverOz Rehabilitation Centre.
37 Dr Cidoni was particularly concerned that applicant was vulnerable in custody, noting a self-harm attempt that had occurred when the applicant had no history of such behaviour. He considered that the stringent conditions that are presently in place at the Metropolitan Remand Centre are contributing to the applicant's vulnerability. He warned that it is highly likely that the applicant's mental state will continue to be poor in custody and may deteriorate further.
38 He took a history of significant anxiety in custody with shaking and sweating on a daily basis. He noted that the applicant had seen a psychiatric nurse in custody on approximately five or six occasions, but had not been given any medication, and that he had never consulted a psychologist or a psychiatrist or had any conduct with mental health services.
39 It was principally for reasons of the lack of attention or the lack of treatment to this existing condition that Dr Cidoni considered that the most appropriate course for the applicant would be residential rehabilitation. He assessed the applicant to be motivated to receive treatment and to not re-offend, and he strongly supported, as I have said, the option of the applicant going into the RecoverOz program at the earliest opportunity.
40 The applicant described to Dr Cidoni a history of alcohol abuse from the age of 14, cannabis use from the age of 23 in increasing amounts, amphetamine use from the age of 23 and from the age of 25 other drugs such as Xanax and alprazolam. He has also used other substances including cocaine and ecstasy. The applicant reported that he moved to illicit substance abuse after commencing a relationship with a woman who had substance use difficulties. Although his initial addiction was evident through the abuse of alcohol, he had a capacity to take a wide variety of intoxicating substances when he felt the need. He has had drug and alcohol counselling in the past and has had some involvement with Alcoholics Anonymous. Since being in custody it appears that the applicant has not used drugs of any type and some urine assessments were produced, obtained at the remand centre, that in a limited way provided support for that assertion.
41 The applicant was assessed again by Mr Thompson of RecoverOz and he gave evidence. Mr Thompson told me that he found the applicant to be suitable for entry into the RecoverOz program stating that he can accommodate the applicant immediately if he is granted bail. Mr Thompson gave evidence about the circumstances that would apply to the applicant if he was admitted to bail, including the regime for control of mobile phones, the circumstances in which he would be residing in safe houses, the numbers of persons who were in these safe houses, how he would be supervised, the circumstances in which he would be permitted to leave the safe house, and various other matters, and he was crossexamined on behalf of the informant about those matters.
42 I am satisfied that if released into this program, the applicant would be entering into a significant treatment program that would likely to be of considerable benefit to him in two respects. Firstly, in seeking to deal with his existing mental health issues and, secondly, in seeking to deal with his addiction. I accept Mr Thompson's assessment that the applicant is genuinely motivated to undertake rehabilitation and I also accept his assessment that Mr Thompson believes the applicant is not just a suitable candidate, but one of a type that Mr Thompson has successfully treated in the past.
43 I express no views about the prospects of the applicant being successfully treated through this program. But it is the case that it is significantly in the public interest if the applicant is able to overcome his issues with addiction. It is also, I think, proper and appropriate that the applicant should have an opportunity to be properly treated for the significant deterioration in his mental condition that has been assessed by Dr Cidoni.
44 The admission of the applicant into inpatient drug rehabilitation that carries a significant prospect of success is, in my view, a factor that weighs heavily in the assessment of whether the applicant has established exceptional circumstances. I am also of the view that the circumstances in which the applicant will be supervised and managed are likely to have the effect of reducing the risk that he may reoffend, endanger the safety of others, or interfere with witnesses.
45 On 5 June 2007, the applicant was sentenced on one presentment to a total effective sentence of six months and two weeks on charges of intentionally causing injury, recklessly causing injury, aggravated burglary, affray, criminal damage and the possession of an unregistered handgun, and on a second presentment on charges of affray, intentionally causing injury and stalking. He was placed on a community-based order for two years. On an appeal against the leniency of that sentence, the applicant was resentenced to a total effective sentence of three years' imprisonment, suspended for two years in relation to the first presentment, and the sentence imposed on the second presentment was confirmed, the net result being that the applicant served a period in excess of six months in custody and had a sentence of two years suspended while he served a community-based order.
46 The Court of Appeal's reasons, which I have read, provide insight into the applicant's past and his circumstances as they were in December 2007. Two matters of concern that arise from that decision are, firstly, that it demonstrates that the applicant committed offences whilst he was on bail and, secondly, that in combination with the current offences, it seems that the applicant has a fascination with firearms.
47 On the other hand, what is evident from the decision in December 2007 was that the applicant had demonstrated to the Court of Appeal that he had taken significant advantage of the opportunities for rehabilitation that had been offered to him and that the Court of Appeal formed the view that he did have the ability to become a lawabiding and contributing member of the community.
48 There then follows a period of time in which that assessment proved to be correct. The applicant was not charged with further offences, obtained employment, completed courses in relation to his interest in working in the building industry and seemed to have his life back on a proper track.
49 It would seem from the limited evidence on this application that he fell off the rails because of his involvement with a woman with a substance abuse problem. It also seems that the breakdown of that relationship was significant in triggering the onset of his depressive condition, which may have had a role to play in his offending.
50 Other relevant matters are that the applicant has the opportunity of stable accommodation once he completes his rehabilitation, with his sister Sandra Salisbury and her husband Shane Salisbury and their son. Further, Sandra and Shane Salisbury have offered to provide a surety in an amount up to $75,000 and they propose putting forward property in support of that surety. That, of course, creates for the applicant a very significant family obligation to see through his commitment to rehabilitation.
51 The applicant also has the opportunity of employment with the Strongbuild Group and I accept the evidence of Mr Asiferis that employment will be available for the applicant when he has completed his inpatient rehabilitation. It was significant in Mr Thompson's assessment that the applicant had this opportunity and it reinforced what he saw as the positive outlook for the applicant in his rehabilitation program because Mr Thompson was of the view that successful employment, particularly in an area where one has training and an interest, is the most critical factor in a successful rehabilitation.
52 The applicant has also offered to accept strict conditions which his counsel described as being conditions of the type that were evident in the cases that I was referred to, particularly the conditions that were imposed in The matter of an application for bail by AlDimachki.[3] Those conditions provide, if granted bail, for the direct release of the applicant into the company of Mr Thompson to attend directly at the RecoverOz Residential Rehabilitation Recovery Program; to reside at such residential premises controlled and managed by RecoverOz as Mr Thompson directs; to obey all lawful directions of Mr Thompson; to comply with requirements that he undergo supervised random urine drug screening at least once a week; not leave those residential premises unless for a purpose authorised by Mr Thompson or his nominee; be in the company of Mr Thompson and his nominee at all times if leaving the place of residence; only receive visitors approved by Mr Thompson; maintain a curfew of 11 pm to 9 am every night; and surrender his mobile phone into the possession of Mr Thompson. There would be also further restrictions on any phone and phone number that the applicant could use and he would be required to notify that number to the informant.
53 The other restrictions are of a more standard type: Reporting to the police station, presumably Box Hill; surrendering his passport; not contacting witnesses; not visiting any place of international departure; and, of course, to appear to the Magistrates' Court for his contested committal.
54 Taking all these matters into account, I have determined to admit the applicant to bail and these are my reasons. As has been observed on other occasions, any grant of bail must carry some risk. The structure of the Bail Act shows that Parliament contemplated that there is acceptable and unacceptable risk and it is now well-established that an unacceptable risk may be rendered acceptable by the imposition of strict conditions.[4] As I noted, the applicant appears to have some fascination with firearms. The combination a fascination with firearms and an addiction to ice has caused me very considerable hesitation about whether the applicant should be admitted to bail. On the other hand, it would be exceptional to deny the applicant's the opportunity for treatment of both his mental illness and his addiction and neither appropriate nor in the public interest to allow those conditions to go untreated in remand for a substantial time. In the particular circumstances of the proposed treatment program I am satisfied that the risks identified by the respondent will be ameliorated, and, I have concluded that bail should be granted to the applicant on the strict conditions that have been proposed, including the provision by the applicant's sister and brother-in-law of a surety in the sum of $75,000.
55 Ultimately, by his consent to the proposed strict conditions together with the assessment by two experienced professionals of the applicant's genuine willingness to undertake intensive inpatient rehabilitation, I have been persuaded that the applicant has demonstrated that his continued detention was not justified. In particular, I am satisfied that the circumstances of delay that might cause continued remand in difficult conditions for a long period of time resulting in exacerbation of a serious and threatening mental condition also demonstrates that the applicant's circumstances are exceptional.
56 Further, his placement in the RecoverOz residential program will substantially reduce risk because of the combination of the management and supervision that will be provided and the prospect of improvement in his underlying conditions of depression, anxiety and addiction. In other words, I have been persuaded that residential treatment for these conditions on strict conditions will render acceptable risk that might otherwise be deemed to be unacceptable.
57 I order that Peter Mourkakos be admitted to bail on his own undertaking with one surety in the sum of $75,000 and on the following conditions: He:
(a) be released into the company of Mr George Thompson of Recoveroz or his nominee ('Mr Thompson'), and attend directly upon release at the premises of Recoveroz for admission into the Recoveroz Residential Rehabilitation Recovery Program;
(b) appear at the Magistrates' Court at Melbourne on 29 March 2016;
(c) reside at such residential premises controlled and managed by Recoveroz in Melbourne as directed by Mr Thompson or his nominee;
(d) notify the Informant 24 hours prior to any change of residential address if the applicant is required to move between any residential premises controlled and managed by Recoveroz;
(e) obey all lawful instructions and directions of Mr Thompson or his nominee;
(f) comply with each of the following requirements: He
(i) undergo supervised random urine drug screens at least once per week;
(ii) not leave his residential premises unless for a purpose authorised by Mr Thompson or his nominee;
(iii) be in the company of Mr Thompson or his nominee at all times if leaving his place of residence;
(iv) only receive visitors approved by Mr Thompson;
(v) maintain a curfew of 11.00 pm to 9.00 am every night;
(vi) surrender any mobile telephone in his possession forthwith to Mr Thompson;
(vii) (if and when permitted by Mr Thompson to have a mobile telephone while a resident of the Recoveroz program) have no more than one mobile phone, the number of which is to be supplied to the Informant within 24 hours of obtaining same. The mobile telephone service must be subscribed in the applicant's name and with his current address;
(g) report daily to the Officer-in-Charge of the police station at Box Hill between the hours of 6am and 9pm;
(h) forthwith surrender all valid passports to the Informant and not apply for or possess any other passport or travel document, and not attend any point of international departure; and
(i) not contact or approach any witness for the prosecution other than the Informant.
[1] See generally the recent decisions Robinson v The Queen [2015] VSCA 161, The Queen v Chung [2015] VSC 487, Re Al-Dimachki [2015] VSC 565 and the cases cited therein.
[2] Dale v DPP [2009] VSCA 212, [44].
[4] Robinson v The Queen [2015] VSCA 161, [49].
DPP
Mourkakos [2015] VSC 775