Re Application for Bail by Tyler Foxwell [2013] VSC 716 (19 December 2013)

2 By reason of some of the offences with which he is charged, s 4(2)(aa)(i) of the Bail Act requires that a court shall refuse bail unless the court is satisfied that exceptional circumstances exist which justify a grant of bail.

3 In June 2012, police commenced an investigation into his activities. The police investigation included substantial surveillance activities between June and October 2013. During the course of telephone interception, police monitored almost 30,000 activations, SMS, data usage and calls. It is alleged that a significant proportion of the calls were drug trafficking related and involved the accused chasing money that was owed to him. Police allege that telephone intercepts contained coded conversations referring to various drug and money amounts. In addition, the applicant was under physical surveillance and vehicle intercepts when drugs of dependence were located, which, in conjunction with telephone interception evidence, are alleged to show that the applicant was trafficking in drugs. As a result of these intercepts approximately 28 grams of either amphetamine or methylamphetamine was located on at least two occasions when, police allege, the drugs located on interception were provided by the applicant.

4 Presently, six co-accused have also been charged, but investigations are continuing and further persons may yet be charged. Analysis of telephone intercept material is continuing and I was informed that approximately 5,000 calls are likely to be relied on in evidence. However, with the volume of material for analysis and the number of offenders, delays are already being experienced in preparation of the hand up brief.

5 Bail has twice been refused by a magistrate and the applicant is currently remanded for committal mention on 31 January 2014. The police brief of evidence is due to be served by 20 December 2013 but an application for extension of time to serve that brief has been foreshadowed. It is unlikely to be served before February 2014.

6 The respondent's counsel frankly conceded that delay was an issue, as it was unlikely that a contested joint committal for possibly seven accused on an estimate of one to two weeks would be completed by the end of 2014. The delay between committal and trial in the County Court was likely to be 12 months. Although counsel postulated some more optimistic assessments, the prospect of a delay of more than two years until early 2016 before the charges are resolved at trial appears a realistic assessment.

7 In this respect, the application bears similarity with Commonwealth Director of Public Prosecutions v Barbaro.[1] In that case the Director effectively conceded the threshold requirement of exceptional circumstances on the basis that Mr Barbaro's trial would not begin for more than two years after he was charged. That delay was caused by the complexity of the circumstances out of which the charges arose and to the scale of the evidence, in particular, transcripts of telephone intercepts on which the Crown intended to rely.

8 That concession was likely to have been prompted by a number of observations made by judges in earlier cases, which were conveniently summarised by Redlich J (as his Honour then was) in Cox v R:[2]

In R v Kantzides,[3] Smith J, in dealing with an application for bail by a person who had been charged with trafficking in a drug of dependence, took the view that a period of at least 20 to 21 months before trial could take place was in the circumstances of that case exceptional. In R v Alexopoulos,[4] Hampel J, in dealing with an application for bail by a person who had been charged with serious offences which related to a very substantial importation of heroin, concluded that a delay of at least one and a half years from arrest to trial was inordinate and was an exceptional circumstance.

In R v Medici,[5] Ashley J said, when referring to the circumstances of that case:

"The situation presently seems to be this, that the applicant has been on remand since June 1992, is likely to come to trial at the earliest in April 1994, with an estimated length of trial of eight weeks, and it follows that the applicant would have been in custody for something in the order of two years before the conclusion of this trial if he was not granted bail. The estimate of two years depends on the trial getting on in April 1994 and at this stage that seems to be more a matter of hope than certainty."

His Honour went on:

"In the present case, the applicant has now been 14 months in custody and he will be in custody for not less than two years before his trial is completed. That is simply unacceptable and it must be regarded as exceptional. It does not answer the unacceptable nature of such a delay to say that the applicant is likely to incur a custodial sentence of more than two years for offences to which he has pleaded guilty. Remand and custody are quite different. In my opinion, two years on remand between charge and trial constitutes exceptional circumstances."

In DPP v Radev,[6] Beach J referred with approval to those remarks by Ashley J. in _Medici'_s case. His Honour regarded such a length of custody between arrest and trial as an unacceptable situation. Kellam J in Mokbel v DPP (No.2)[7] made observations to a similar effect.

There have been a number of recent decisions of the West Australian Supreme Court dealing with legislation in almost identical terms to our own in which similar observations have been made.[8] In Outman v The Queen, Hasluck J after referring to Alexopoulos v R and Pinkston v R said:

"These cases suggest that delay should be measured not against the state of the court list in any particular jurisdiction, but having regard to objective criteria based on the concept that a humanitarian society recognising the presumption of innocence will find abhorrent the idea that people are kept in custody for such an undue time without trial".[9]

The various decisions to which I have referred are a cogent reminder that it is in neither the community or accused's interest to be detained in custody for periods approaching two years. As Vincent J (as he then was) said in the matter of Mantase:[10]

"Periods of eighteen months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say in effect that such periods represent the norm and therefore cannot constitute part of the matrix of exceptional circumstances. This in effect ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constitute a potential source of injustice".[11]

There are numerous decisions of this and other courts, that inordinate delay by itself may amount to an exceptional circumstance. The length of the delay before the applicant's trial is presently a matter of conjecture. I do not stay to consider the appropriate standard of proof for such a prognostication, but I am conscious of the conceptual difficulties that can arise in applying the civil standard to events yet to occur. I do not regard it as appropriate to make any finding in the circumstances presently known as to whether the delay which is anticipated should be characterised as inordinate. There have been differing views expressed in this court as to whether such time as the Crown submits is likely to elapse should be so described. Nevertheless, delay which has not been established as inordinate, may, in conjunction with other factors, amount to exceptional circumstances. I therefore take into account the delay which the Crown concedes will occur bearing in mind that it is the minimum period which is likely to elapse.

9 The respondent's counsel stopped short of conceding that delay in the present case could, of itself, constitute exceptional circumstances, but frankly accepted that substantial delay was likely and was a significant factor in favour of bail. In addition to the delay, I also take into account that the applicant is a young man with no prior convictions who enjoys the support of his family, including an offer of employment. He may also have a number of unresolved psychological issues contributing to his current predicament. In combination, these matters, about which I will say more, are in my view sufficient to take the applicant's circumstances out of the ordinary.

10 The applicant also contended in support of a finding of exceptional circumstances that the Crown's case is weak in relation to one of the key elements of the offence, namely the proof of the ongoing intent during the relevant period of alleged trafficking. The applicant contends, referring to Mustica v The Queen[12], that if the prosecution case is that the applicant was intending to traffick a large commercial quantity in the period from June until October 2013 there must be evidence that establishes his intention to traffick that large commercial quantity. The strength of the prosecution case in this respect cannot be assessed until a hand-up brief is served.

11 I was invited to infer a weak Crown case from the applicant's record of interview because specific and particular incidences of his offending were not put to him when he was questioned. However, I do not think that the strength of the Crown case is an issue that contributes favourably for the applicant in establishing exceptional circumstances. Nothing was put before me that would sensibly enable me to make an assessment as to the strengths of the Crown case one way or the other.

12 Although it is simply not practical to presently form any realistic view of the strength of the Crown case, the charges the applicant faces are very serious indeed. Further opportunity for assessment of the Crown case will be presented with the service of a hand-up brief, at which time this consideration may assume greater relevance.

13 Although I am satisfied that the applicant can demonstrate exceptional circumstances, that of itself does not create an entitlement to bail. As the President observed in Barbaro:[13]

As the magistrate recognised, however, the establishment of exceptional circumstances does not create an entitlement to bail. 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.[14] 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 in answer to 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.

14 The Crown now contends that there is an unacceptable risk that the applicant, if released on bail, would commit further offences. This risk is said to arise in two ways. The Crown contends that the telecommunications intercepts reveal that the applicant owes a large drug debt in the vicinity of $108,000 and has drug debts owed to him of $60,000. The informant, who gave evidence before me, suggested that if the applicant was released on bail there was a significant risk that activity in relation to the collection or payment of these debts could lead to the applicant re-offending.

15 On the occasion of a bail application before a magistrate, the applicant was assessed by the Court Integrated Service Program. He reported to the CISP assessor that for the 12 months prior to his remand he had been using approximately 2 grams each of methylamphetamine and amphetamine on a daily basis. This admission seems surprising for the quantity of drugs being used. Although it does not appear that the applicant's drug habit has been thoroughly assessed, the limited evidence points to a substantial drug habit, which has only been abated by his detention in custody.

16 The Crown contends that each of these factors points to an unacceptable risk that the applicant will commit further offences on bail.

17 The applicant is 25 years of age and has no prior convictions. He is the second of four children. His younger brother and sister live with his father. His elder sister, who gave evidence before me, is married and lives close by to her father. Their mother is deceased. The applicant attended Ivanhoe Grammar School, completing his VCE in 2006. Upon leaving school he was employed in his father's building and construction business and commenced a carpentry apprenticeship. The applicant appears to have done well at school but seems to have encountered difficulties since his mother lost a battle with cancer and his subsequent diagnosis of and treatment for depression.

18 At some point he moved out of home and during the time of his offending was living in rented premises with his girlfriend, a co-offender. It is proposed that if the applicant is granted bail that he would return to reside with his father and his two younger siblings in Whittlesea. His father will provide employment in his construction business that will accommodate him meeting any bail conditions including drug treatment and counselling as may be directed by the court. The court was invited to accept that the applicant comes from a good family and will be returned to more stable accommodation and employment circumstances than those that prevailed when he was living with his co-offender.

19 As already noted, the applicant reported a significant drug habit when assessed on 21 November 2013. He has apparently maintained abstinence from all illicit substances since his remand into custody and has expressed a willingness to engage in treatment and counselling, including relapse prevention and harm minimisation strategies. The CISP assessment report discloses that he was diagnosed with depression at 23 years of age but is not currently receiving any treatment. Referral to a general practitioner for a mental health care plan to allow access to treatment for depression is recommended.

20 The CISP assessment recommended the applicant for level 3 intensive case management by the CISP team. Had he been released on bail in November, that would have involved a further assessment of his substance abuse issues with an accredited worker, an appointment with a general practitioner in Eltham to review his mental and physical health concerns and needs, and regular appointments with the CISP case manager for review of progress in treatment, support and follow-up. Beyond noting that recommendation, the applicant does not express any intention to be proactive in seeking such assistance.

21 As the applicant was not granted bail by the magistrate, this assessment has now lapsed. However, his solicitors have arranged for a further CISP assessment on 8 January 2014. Appointments have also been made for the applicant to be examined by a psychologist in early February 2014.

22 If the applicant was granted bail, there will be, with the intervention of the festive season, a delay of approximately 20 days before the applicant can be further assessed for proper management of his substance abuse issues. During that time the applicant would be in the care, and under the supervision of, his family. The evidence before me suggests that the applicant's family was unaware of his substance abuse issues prior to his arrest. He had been living away from the family home for approximately two years. There are valid concerns that, although the applicant may have had an opportunity while on remand to deal with his physical addiction, he is yet to properly come to terms with his substance abuse problem. He is significantly vulnerable to relapse into drug use.

23 Although it is proposed that the applicant will return to reside with his father and younger siblings and has been offered employment with his father's construction company, these circumstances do not appear any different to those that prevailed when he moved away from his family approximately two years ago.

24 The traditional Christmas shut down in the construction industry will mean that the applicant is unlikely to be engaged in productive work when initially released, if granted bail.

25 It appears that, consistently with the publicised reports of the difficulties being experienced by the Office of Corrections in accommodating prisoners, the applicant's initial period in remand has been difficult. He recently spent five days at the Melbourne Assessment Prison and was transferred to the Melbourne Remand Centre on 12 December 2013. Clearly, there has been no opportunity in that time for the applicant to participate in any program, or receive any assistance that may be available in custody and particularly at the MRC in respect of his substance abuse.

26 The applicant's sister, Mrs Stewart, is employed as an operations supervisor for a bus company. She is prepared to provide a modest surety in the sum of $5,000. She stated that by drawing on funds she has accumulated jointly with her husband the maximum amount of a surety that could be provided is $20,000. I am not satisfied by this offer of a surety or the evidence generally that his family can actively supervise and support any counselling that might be necessary. I do not consider that the informant should supervise his rehabilitation by inspecting regular drug testing reports arranged by a general practitioner. I consider there is a significant risk that the applicant, unless substantially more committed to rehabilitation that he presently appears to be, will be unable to capitalise on a short respite from a substance abuse problem of major proportions. The applicant is likely to be idle, exposed to his former peer group away from his family, and possibly subject to significant stress from his activities prior to his arrest. This prospect is sufficient to satisfy me that the risk that the applicant will re-offend whilst on bail is presently unacceptable.

27 Because I consider that the risk that the applicant, if released on bail, will be unable to capitalise on his period in remand when he has been drug free, is significant, I am persuaded that there is an unacceptable risk arising not only from the fact that the applicant has not yet received and is not about to start carefully supervised treatment for his substance abuse problem, but also from the prospect that there are issues within his peer group prior to his arrest that may attract his attention if he is released on bail. The applicant's position in relation to his substance abuse issues may change, particularly if he receives assistance in the MRC or greater resources are applied to a more intensive approach to his admitted substantial substance abuse problem. As matters presently stand, I am satisfied that the continued detention of the applicant in custody is warranted.

[1] [2009] VSCA 26.

[2] [2003] VSC 245 at [15] - [20].

[3] Unreported, Supreme Court of Victoria, 9 August 1996.

[4] Unreported, Supreme Court of Victoria, 23 February 1998.

[5] Unreported, Supreme Court of Victoria, 29 September 1993.

[6] 108 A Crim R 121; [1999] VSC 284.

[7] [2002] VSC 312.

[8] See Fawcett v R [2002] WASC 285; Outman v R [2000] WASC 303; Pinkston v R (2000) 119 A Crim R 462.

[10] Unreported Supreme Court of Victoria, 21 September 2000.

[12] [2011] VSCA 79; (2011) 211 A Crim R 50, 57 [34].

[13] [2009] VSCA 26 at [6].

[14] See Beljajev v DPP (1998) 101 A Crim R 362; Re Waters [2005] VSC 443 (unreported, Hollingworth J, 26 October 2005) [5].