Re Al-Dimachki (Bail Application) [2015] VSC 565 (13 October 2015)

1 Majed Al-Dimachki, the applicant, was refused bail in the Magistrates' Court at Dandenong on 9 September 2015. He now seeks bail from this Court.

3 In recent years, he has attracted prior convictions for dangerous driving, driving whilst suspended, and possession and use of a drug of dependence (2012); importing a prohibited import and make false Customs entry (2013); and failing to answer bail, speeding, using a mobile telephone in vehicle and failing to produce a license (2014).

4 On 9 July 2015 the applicant was charged with four charges of trafficking,[1] and four charges of possession,[2] of a drug of dependence (methylamphetamine, 1,4-Butanediol, ecstasy and amphetamine); one charge of negligently dealing with the proceeds of crime;[3] one charge of handling stolen goods;[4] one charge of being a prohibited person in possession of a firearm;[5] one charge of possessing an unregistered general category handgun;[6] one charge of being an unlicensed person failing to store firearms in a secure manner;[7] one charge of possessing ammunition without a license;[8] and one charge of committing an indictable offence whilst on bail[9] ('the present offences').

5 The respondent opposes bail. It is submitted, first, that by virtue of s 4(4)(a) of the Bail Act 1977 ('the Act'), the applicant is required to show cause why his detention in custody is not justified, in that he has been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence; secondly, that by virtue of s 4(4)(d) of the Act, the applicant is required to show cause why his detention in custody is not justified, since he is charged with an offence against the Act; and, thirdly, relying on s 4(2)(d)(i), that there is an unacceptable risk that if released on bail the applicant would commit an offence whilst on bail and endanger the safety or welfare of members of the public.

6 When charged with the present offences, the applicant was on bail granted by the Magistrates' Court on 19 February 2015 with respect to previous offences. The circumstances of those previous offences are highly relevant to the question of bail on the present offences, since they share some characteristics.

7 So far as the previous offences are concerned, the prosecution alleges that, on 14 October 2014, the applicant was observed by a passing motorist to be slumped over the steering wheel of a stolen blue 2013 Nissan Pathfinder (valued at $40,000). The vehicle was stopped with its engine running at the corner of the South Gippsland Highway and the Dandenong Bypass in Dandenong South. Evidence suggests that the vehicle had been stolen from outside a residential address in Dandenong on 11 October 2014. It had earlier been observed being driven in a dangerous and erratic manner on the Dandenong Bypass, causing various motorists to contact '000' to report the driving.

8 Police attended and searched the car. They located various cards and identification in the name of the applicant; $750 cash; two 2 litre bottles of partially crystalized liquid that was subsequently analysed as being 1, 4-Butanediol, and white crystallised material analysed as being methylamphetamine; two small bottles containing liquid also believed to be 1, 4-Butanediol; a small container inside which were crystals believed to be 'ice' (methylamphetamine); and five mobile telephones. The applicant was taken to Dandenong Hospital for treatment; and, upon his release from hospital, was conveyed to Dandenong Police Station and interviewed. In the interview he stated that he borrowed the vehicle from a friend the day before, and that he 'skulled' 50 millilitres of 1,4-Butanediol in order to commit suicide.

9 Following interview, the applicant was charged with trafficking a commercial quantity of a drug of dependence, 1,4-Butanediol; possessing a drug of dependence, 1,4-Butanediol; theft of motor vehicle; possessing a drug of dependence, methylamphetamine; driving whilst authorisation was suspended; using a drug of dependence, 1,4-Butanediol; committing an indictable offence whilst on bail; contravening a conduct condition of bail; recklessly dealing with the proceeds of crime; driving in a manner dangerous; careless driving; and driving under the influence of a drug ('the previous offences').

10 It seems that the Magistrates' Court granted bail on the previous offences on 19 February 2015 because the applicant had a stable residence; had ties to the jurisdiction; had treatment available to him; had family support; had health problems; had the support of the Court Integrated Services Program (CISP); and was subject to a community corrections order ('CCO'), to be imposed by the County Court on 20 February 2015.

11 On 4 June 2015, the County Court granted the applicant bail on the same conditions, to appear at that court on 9 July 2015.

12 With respect to the present offences, the prosecution alleges that on Thursday, 9 July 2015, at approximately 2.30 am - that is, the morning of the same day the applicant was due to answer bail in the County Court - police attended 25 Galos Place, Noble Park North, to execute a search warrant under s 81 of the Drugs, Poisons and Controlled Substances Act 1981. Police observed the applicant standing beside the open driver's door of a Mitsubishi ASX vehicle which was parked in the driveway of the premises. He was arrested and searched. Four rounds of ammunition were found in his possession.

13 The vehicle was then searched, and police located a loaded handgun containing two rounds of cartridge ammunition beneath the driver's seat. Under the Firearms Act 1996, the applicant is a prohibited person in relation to possession of firearms. Significantly, the four rounds of ammunition located on the applicant are appropriate for use in the handgun located in the vehicle.

14 Police also located a set of scales, a number of plastic zip lock 'deal bags' and a small bottle containing clear liquid, in the boot of the vehicle. Under the driver's seat of the vehicle police also found a flask containing 500 millilitres of clear liquid. The clear liquid in the bottle and flask is believed to be 1,4-Butanediol. Also under the driver's seat police located a small zip lock bag containing yellow powder believed to be amphetamine, and seven tablets believed to be ecstasy in another small zip lock bag.

15 On the passenger side of the vehicle, police located a black Nike 'bum bag', containing a white crystal substance; a number of zip lock bags; $6715 in cash; and the applicant's Victorian driver's licence. The total amount of white crystal substance located in the vehicle weighs approximately 44 grams, and is believed to be methylamphetamine.

16 In the boot of the vehicle, police located a black laptop computer, believed to be stolen goods.

17 At the time of his arrest for the present offences, later that day the applicant was, as I have mentioned, due to answer bail for his previous offences at the County Court at Melbourne.

18 In a record of interview conducted by police, the applicant stated that at the time that he was arrested he was going to the car to get his wallet out of it. He stated that he had left his wallet there on the previous Tuesday night. When he went to the car he found his wallet in the centre console, and noticed the black bum bag on the driver's seat. He told police that the bum bag and its contents do not belong to him, but he put his wallet inside the bum bag to take it all inside. As he was leaving the car, he saw the rounds of ammunition on the ground and picked them up and put them in his pocket. Then, as he was getting out of the car, he saw police and put the bum bag back into the car. He was then arrested. The applicant said that he had bags of his belongings in the boot, but that the scales, 'deal bags' and liquid believed to be 1,4-Butanediol do not belong to him. He denied knowledge of the handgun or the flask under the driver's seat.

19 So far as the previous offences of 14 October 2014 are concerned, various summary driving charges are yet to be heard in the Magistrates' Court, and the indictable offences are yet to be determined in the County Court. A trial date of 26 May 2016 has, however, been fixed in the County Court (with a final directions hearing fixed for 15 March 2016).

20 Furthermore, I note that the applicant was released on a CCO by the County Court in its appellate jurisdiction on 20 February 2015. Ostensibly, that CCO has been breached. No breach proceedings have, however, yet been initiated.

21 The present offences are listed for Contest Mention at the Dandenong Magistrates' Court on 27 October 2015.

• the applicant is eligible for residential rehabilitation in a drug treatment facility;

• the risk that he will offend on bail will be significantly mitigated if he meaningfully engages in drug rehabilitation;

• the applicant has the support of his partner and family; and

Originally, it was also suggested that the case against the applicant on the present charges - in particular, the trafficking and firearms charges - was circumstantial and weak, including that there is no forensic evidence linking him to the firearm. Quite sensibly, however, on the hearing of the application counsel abandoned any reliance on this suggestion.

23 The applicant's position is that he should be released on bail in order to engage in drug rehabilitation, since he has never previously attempted rehabilitation. He relies principally on material from a drug rehabilitation facility, Recoveroz, indicating that the applicant has been assessed as suitable and a place is being held for him. The applicant also relies on a psychological report of Mr Warren Simmons, dated 10 February 2015; a favourable CISP Progress Report, dated 15 April 2015; a letter authored by Michelle Enbon, of the Port Phillip Prison Disability Mentor Program, dated 8 September 2015; and recent negative urine test results.

24 Recoveroz operates a residential rehabilitation recovery program aimed at the treatment of drug dependency. Mr George Thompson, the Clinical Director of Recoveroz, gave evidence before me. He has worked clinically in the field of addiction for 30 years. On 14 August 2015 he assessed the applicant as having a severe addiction to drugs, including methamphetamine (echoing Mr Simmons' conclusion that the applicant's present offences have arisen from 'substance use', he meeting the DSM-V diagnostic criteria for 'Substance Use Disorder'). The applicant is suitable for the Recoveroz program - 'a big step up' from CISP - which involves a level of support 24 hours a day, seven days a week. He will be subject to random urine testing, and will have to abide by the rules of the program. Mr Thompson was adamant - and I have no reason to doubt him - that any breach of the rules by the applicant will result in his immediate dismissal from the program, and a notification being made to police.

25 As I have said, the respondent opposes bail, and relies on the following matters as demonstrating why the applicant has not shown cause why his detention in custody is not justified, and why the applicant should be considered an unacceptable risk:

• the applicant committed the present offences despite being on bail for previous indictable offences;

• the applicant has been charged with an offence against the Act, placing him in a show cause position;

• the applicant had a loaded handgun in his possession as a person who is prohibited from possessing a firearm due to his recent criminal history, and had further ammunition appropriate for the firearm in his pocket, thus posing a significant risk to the community;

• in relation to the previous offences, the applicant consumed a significant quantity of an illicit substance and drove a stolen motor vehicle in an attempt to commit suicide, posing a serious risk to the safety of the public and himself;

• the applicant is on bail in relation to serious matters of trafficking and possessing drugs (and other offences), and these matters are currently progressing;

• the applicant committed these further offences shortly after being released from custody;

• the applicant has an extensive criminal history for drug trafficking and possession, as well as for offences of dishonesty; and

• counselling and rehabilitation services have been evaluated during previous applications for bail and deemed to be inappropriate since the applicant is believed to be a high risk of reoffending and a risk to the community.

26 Since s 4(2)(d)(i) of the Act provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things spelled out in the subsection, clearly any burden of persuasion as to unacceptable risk cannot lie with the applicant for bail. Hence, he is not required to show an absence of unacceptable risk. Under s 4(4)(a) and s 4(4)(d), however, a burden of persuasion is placed on the applicant for bail. The mere fact that a person is charged with an offence falling within s 4(4)(a) or (d), however, does not necessarily establish that he poses an 'unacceptable risk' within the meaning of s 4(2)(d)(i). Whether a person does or does not pose an unacceptable risk requires an evaluation of the putative risk or risks, consistently with the requirements of s 4(3) of the Act.[10]

27 As has been observed on other occasions, any grant of bail must carry some risk.[11] Subsection 4(2)(d)(i) contemplates that there are some risks which are acceptable; and that, in certain situations, what might initially be deemed to be an unacceptable risk may be rendered acceptable by, for example, the imposition of strict conditions of bail. Thus, s 4(3) of the Act provides:[12]

(3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say -

(a) the nature and seriousness of the offence;

(b) the character, antecedents, associations, home environment and background of the accused;

(c) the history of any previous grants of bail to the accused;

(d) the strength of the evidence against the accused;

(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;

(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

28 Not without some hesitation, I have concluded that bail should be granted to the applicant on strict conditions. In Robinson, Maxwell P and Redlich JA observed:[13]

It is well established that a risk which might otherwise be unacceptable can be made acceptable by attaching appropriate conditions to the grant of bail. ... In the present case, the applicant submitted that strict conditions requiring him to be - and remain - in a residential drug rehabilitation facility should have satisfied the Court that any risk of the kind contended for by the Crown would be reduced to an acceptable level.

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person's freedom of movement and association but - on the positive side - it means that the pre-trial period can be used constructively to tackle the person's drug addiction. In this case, as in so many others like it, [Robinson's] drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to [Robinson] if he remained in custody.

Having indicated that he would consent to these conditions, [Robinson] had demonstrated in two different - but related - ways that his continued detention was not justified. First, for him to be in the residential program would, of itself, substantially mitigate risk; and, secondly, the treatment itself would be likely to promote his recovery from addiction and further reduce risk.

29 As was the case in Robinson, the applicant has demonstrated that his detention is not justified. His placement in the Recoveroz residential program will, of itself, substantially reduce risk; and his treatment - and recovery from addiction - will further reduce risk. Strict conditions will render acceptable a risk that might otherwise be deemed unacceptable.

30 Bail will be granted to the applicant on his own undertaking with conditions that the applicant:

1. 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;
2. appear at the Magistrates' Court at Dandenong on 27 October 2015;
3. reside at such residential premises controlled and managed by Recoveroz in Melbourne in the State of Victoria as directed by Mr Thompson or his nominee;
4. 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;
5. obey all lawful instructions and directions of Mr Thompson or his nominee;
6. comply with each of the following requirements:

(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;

1. surrender any mobile telephone in his possession forthwith to Mr Thompson;
2. save as otherwise permitted by Mr Thompson, have no personal or telephone contact with any member of his family or other person outside the Recoveroz Residential Rehabilitation Recovery Program, for the period of 14 days following the making of this order;
3. (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;
4. report every Monday, Wednesday and Friday to the Officer-in-Charge of the police station at Box Hill between the hours of 6am and 9pm;
5. 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;
6. not contact or approach any witness for the prosecution other than the Informant.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 71AC.

[2] Drugs, Poisons and Controlled Substances Act 1981, s 73.

[3] Crimes Act 1958, s 194(4).

[4] Crimes Act 1958, s 88(1).

[5] Firearms Act 1996, s 5(1).

[6] Firearms Act 1996, s 7B(1).

[7] Firearms Act 1996, s 129A.

[8] Firearms Act 1996, s 124(1).

[9] Bail Act 1977, s 30B.

[10] Robinson v The Queen [2015] VSCA 161, [62]-[65] (Priest JA) ('Robinson'); Re Guirgis [2015] VSC 242, [40]-[43] (Priest JA).

[13] Robinson, [49]-[51] (footnotes omitted; emphasis added).