Re Aucello [2019] VSC 252 (17 April 2019)

1 This is an application by Anthony Aucello (the 'applicant') pursuant to the Bail Act 1977 (Vic) (the 'Act'). As at the hearing of this application, he has spent 226 days in pre-sentence detention. To support his release on bail, the applicant relies on the presence of exceptional circumstances and the availability of bail conditions that would reduce any potential risk of his release to an acceptable level.

2 On 6 March 2018, the applicant was arrested following the execution of a search warrant in his Southbank apartment. The search located, amongst other things, a number of drugs; false or blank identification documents and bank cards; cash; and a 'ledger', alleged to contain notes regarding drug debts and practiced false signatures.

3 The execution of the search warrant was proceeded by an incident on 4 March 2018 when the applicant is alleged to have been captured on CCTV removing registration plates from a car in the carpark of his apartment building.

4 On 7 March 2018, the day after his arrest, the applicant was charged with:

• dealing with property suspected of being the proceeds of crime;

• possessing a prohibited weapon without exemption.

5 On 4 April 2018, the applicant was granted bail in relation to these charges at the Melbourne Magistrates' Court. His bail included a condition that he reside with his parents' residence in Rosebud West (a suburb now called Capel Sound) and provide a $10,000 surety. The present application proposes effectively the same conditions.

6 On 29 May 2018, the applicant was further charged with two counts of possessing a drug of dependence, and three counts of trafficking a drug of dependence, both flowing from the same incident.

7 On 8 June 2018, the applicant was granted a variation of his bail conditions to allow him to reside in Southbank to be closer to work, but he was required to continue to report to the Rosebud Police Station once a week.

8 On behalf of the applicant, it is now put that the variation of bail created logistical difficulties that led to several contraventions of his bail conditions. Indeed, on 6 and 27 July 2018, the applicant failed to report to the Rosebud Police Station in accordance with those conditions. Additionally, the evidence indicates that, on 8 August 2018, the applicant failed to reside at the address in Southbank as stipulated in the conditions of his bail.

9 On 10 August 2018, the applicant was arrested and remanded in relation to three charges of contravening a conduct condition of bail.

10 On 17 September, bail was revoked with respect to the two substantive matters from March and May 2018.

11 The applicant has been refused bail in the Magistrates' Court on two occasions.

12 First, on 11 October 2018, bail was refused on the basis that the applicant was an unacceptable risk of committing an offence while on bail or failing to surrender into custody in accordance with the conditions of bail. The matters were next scheduled for contest on 11 January 2019 in the Magistrates' Court. However, the Court did not allocate a magistrate to hear the matters on that date. That contest hearing has now been adjourned until 17 July 2019. As the applicant is in custody, the adjournment is most unfortunate.

13 On 23 January 2019, bail was again refused in the Magistrates' Court on the basis of a failure to show exceptional circumstances.

14 There are two co-accused in relation to the offending, namely, Cindy Dewaij and Ned Pearson.

15 All charges against Mr Pearson were withdrawn except for one count of possession of a drug of dependence to which he pleaded guilty. On 13 February 2019, the charge was proven and he received a non-conviction result.

16 Ms Dwaij pleaded guilty to offences of theft, handling stolen goods, committing an indictable offence whilst on bail, and possessing identification information. She was convicted and sentenced to a Community Corrections Order for a period of 11 months on 4 February 2019.

17 The prosecution case against the applicant is that between 5:30 pm and 9:30 pm on 4 March 2018, he, together with Ms Dewaij, stole registration plates from a vehicle located in the carpark of an apartment complex in Southbank.

18 The entire incident was captured on CCTV. It shows the applicant removing the registration plates, followed by the applicant and Ms Dewaij entering the apartment elevators with the plates partially concealed in a bag. Investigations revealed that the key used to gain access to the elevator was registered to Apartment 4511, which was the applicant's residence at the time.

19 At about 4:20 pm on 6 March 2018, investigators attended Apartment 4511 and spoke with the applicant. He was arrested and conveyed to the Melbourne West Police Station for interview. At about 10 pm, while the applicant was in custody, police returned to the apartment where both Ms Dewaij and Mr Pearson were present. A search conducted of the premises revealed a number of items. They included:

• 103 g of MDMA;
• 13 g of marijuana;
• 29 g of crystal methamphetamine (or 'ice');
• 462 g of liquid Butanediol; various prescription tablets;
• six vials of steroids;
• hundreds of Ziploc bags and syringes;
• credit card blanks and clear film to seal them;
• four stolen passports;
• two stolen cheques;
• stolen cards in the name of third parties;
• a throwing star;
• $1,500 in cash;
• and a ledger containing 'notes regarding drug debts', deception instructions and practiced false signatures.

20 The two co-accused were transported to the Melbourne West Police Station, where they provided no comment records of interview, as did the applicant. The applicant was then remanded in custody.

21 As already described, the applicant was granted bail in the Magistrates' Court on 4 April 2018, the order was varied on 8 June 2018, and was followed by several breaches of conduct conditions in July and August 2018.

22 The Act makes it plain the applicant is entitled to bail unless the Act requires the Court to refuse bail.[1]

23 In this matter, the applicant has been charged with trafficking in a drug of dependence, which is a Schedule 2 offence under the Act. Whilst on bail for these charges, the applicant was subsequently charged with contravening conduct conditions of bail, which is also a Schedule 2 offence. As the applicant is accused of Schedule 2 offences, s 4AA(2) of the Act states that a 'two-step test' applies to the consideration of a grant of bail.

24 Pursuant to s 4A(1) of the Act, I must refuse bail unless satisfied that the exceptional circumstances exist that justify the grant of bail. In making this determination, the Court must take into account the 'surrounding circumstances' as set out in s 3AAA of the Act.[2] The burden of satisfying this Court that exceptional circumstances exist rests with the applicant.[3]

25 If the Court is satisfied that exceptional circumstances exist that justify a grant of bail, then the 'unacceptable risk test' must be applied.[4] The Court must refuse bail if the Court is satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

(i) endanger the safety or welfare of any person; or

(ii) commit an offence while on bail; or

(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or

(iv) fail to surrender into custody in accordance with the conditions of bail.[5]

26 The burden rests on the prosecutor to satisfy the Court that a risk of that nature exists and that the risk is at a level such that it is unacceptable.[6]

27 As with exceptional circumstances, when considering the unacceptability of the risk, the Court is required to take into account the surrounding circumstances set out in s 3AAA.[7]

28 The applicant is 23 years of age with a history of drug abuse that began in his teenage years. He has a relevant but limited criminal history, involving convictions for possession of cocaine in 2017 and findings of guilt for trafficking amphetamines, possession of a drug of dependence, dealing with property suspected to be the proceeds of crime, and theft in 2014.

29 At the time he was remanded, he was working as a third-year electrician apprentice. The applicant has also disclosed relapsing into substance abuse since his last period of remand in April 2018.

30 The applicant relies on a number of factors in support of the conclusion that exceptional circumstances have been established, including:

• the suitability of proposed accommodation;
• family support;
• the effect of incarceration on his mental health;
• the availability the Court Integrated Services Program ('CISP') Remand Outreach Program;
• his limited criminal history; and
• an asserted weakness in the prosecution case.

31 Counsel for the applicant relied primarily on the delay caused by the adjournment of the contest hearing to establish exceptional circumstances. If the applicant remains in custody until 17 July 2019, he will have been on remand for 317 days. The applicant submits that, if bail were not granted, there is a real risk he will spend more time on remand than he would receive for any custodial sentence if found guilty of the charges. The respondent accepts there is a significant risk that that period of imprisonment would equal or exceed the penalty likely to be imposed on him.

32 The applicant has been assessed by the CISP Remand Outreach Program in January and April 2019 by Ms Karina Czaplinski, the assessment and referral practitioner. In January, he was recommended for case management with the CISP team. In her April report, Ms Czaplinski recommended the applicant for community referral and advised that ongoing case management was not required.

33 The most current assessment indicates that he is recommended for 'Level 1 Community Referral'. Accordingly, immediate treatment and support arrangements will be facilitated to assist the applicant. Among other things, the assessment refers to the applicant's willingness to engage in drug counselling and an apparent motivation on his part to change his habits in relation to those matters. Ms Czaplinski also comments on his reported stable employment history and his plans to return to work.

34 As previously noted, the applicant's criminal history is limited, and this is his first time in custody.

35 Counsel for the applicant submitted that that the applicant is suffering a deterioration in his mental health as a result of his ongoing imprisonment. However, there is no evidence before me in relation to his mental health beyond that mere assertion.

36 A surety is also available on behalf of the applicant. Previously, the grant of bail in April 2018 included a surety of $10,000. If bail were to be granted again, then that surety would be required to be reinstated.

37 The applicant also refers to the prospect of a number of conditions that could be placed on the applicant to ensure his compliance with any order for bail.

38 On behalf of the respondent, it is conceded that it is open to me to find that exceptional circumstances have been established by the applicant, based on the factors that he relies on.

39 There was some argument between the parties in relation to the strength of the prosecution case. It was accepted that the deeming provisions that were originally relied upon to connect the applicant with the items found in the Southbank apartment cannot be used for that purpose. The respondent asserts that there is another evidentiary basis to establish a connection between the applicant and the relevant items.

40 The respondent opposes bail on the basis that the applicant is an unacceptable risk of endangering the safety and welfare of the public by potentially committing further offences of trafficking in drugs, and also failing to comply with conditions of bail. In particular, the respondent relies on the following incidents to assert that, if released on bail, the applicant's risk is unacceptable.

41 At the time of this offending, the applicant was on summons in relation to events alleged to have occurred on 31 October 2017. This incident resulted in charges of careless driving, failing to state name and address, failing to render assistance, failing to immediately stop a motor vehicle following an accident, failing to drive left of a safety zone, and unlicensed driving. That matter is next listed for a plea of guilty in the Magistrates' Court in Melbourne on 17 July 2019.

42 On 22 February 2019, whilst already on remand in relation to the present matters, the applicant was charged on summons with offences of obtaining property by deception, attempting to obtain property by deception and using a false document. These charges relate to events alleged to have occurred between 1 and 10 August 2018, which is some two months after his last grant of bail.

43 In that matter, the applicant is alleged to have stolen identification to obtain tools from the Kennard's Hire Company, which he later attempted to sell. The total value of goods involved is approximately $46,000. This matter is next listed for mention in the Melbourne Magistrates' Court on 29 May 2019.

44 The period of remand has been potentially lengthened by six months by the Magistrates' Court failing to provide a magistrate to hear the contest when it was fixed for hearing. For that reason alone, the applicant could establish exceptional circumstances. I accept that in these circumstances, in combination with the other matters raised and the respondent's concession, exceptional circumstances have been established. Having been so satisfied, I must now turn to the risk posed by the applicant.

45 The respondent relies on the previous alleged offending whilst on bail, coupled with the breaches of his bail conditions and the applicant's admitted drug use as demonstrating that there is an unacceptable level of risk that the applicant will endanger the safety or welfare of any person, or will commit further offences if released on bail.

46 The applicant submits the risk can be ameliorated to an acceptable level as he would reside with his family in Capel Sound should bail be granted. It does appear that the applicant is strongly supported by his family and, in particular, his mother, who was present during the hearing. The applicant was initially residing at that address when granted bail on 4 April 2018. Problems appear to have occurred following the variation of his residential condition. The respondent did not take issue with the applicant's proposed residence.

47 The additional matter that I propose to impose as a condition if bail is granted is a condition in relation to judicial monitoring. It seems to me that this is a case where this Court should, if it is proposing to release the applicant on bail, play some part in making sure that the conditions are complied with.

48 In all the circumstances, I am not persuaded by the respondent that I should refuse bail on the basis that the risks associated with releasing the applicant on bail are unacceptable. In my view, whilst there is a risk as there is in every application, the risk in this case can ameliorated by the careful crafting of conditions.

49 I propose that the applicant be released on bail on his own undertaking with a surety fixed at $10,000 - in accordance in accordance with his previous grant of bail - and subject to the following conditions:

1. The applicant is to reside at [redacted] Capel Sound, in the State of Victoria, which place of residence is to be varied only by order of a court; and

2. Other than in the case of emergency, the applicant is not to be absent from his place of residence between the hours of 9pm and 7am (the 'curfew hours') each day, unless in the company of:

and is to present himself at the front door of his place of residence upon the reasonable request of a member of Victoria Police during the curfew hours; and

3. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informants Detective Senior Constable Daniel Vakulcyzk, Senior Constable Michael Ellis, Detective Senior Constable Yvette Lippold, Constable John Stillwell, Sergeant Jens Bertelsen, Constable Mikayla McIntosh; and

4. The applicant is not to contact or associate with, either directly or indirectly, the co-accused Cindy Dewaij and Ned Pearson; and

5. The applicant is to report to the officer-in-charge of the Rosebud Police Station each Monday, Wednesday and Friday between the hours of 7am and 9pm; and

6. The applicant is not to drive a motor vehicle of any description; and

7. The applicant is not to consume alcohol or use a drug of dependence within the meaning of Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act; and

8. The applicant is to comply with all lawful directions of the Court Integrated Services Program; and

9. The applicant is not to leave the State of Victoria; and

10. The applicant is not to attend any international points of departure; and

11. The applicant is to appear at the Melbourne Magistrate's Court on 29 May 2019, and thereafter as directed by that Court; and

12. The applicant is to appear at this Court on 1 May 2019 at 9:30 am and each Wednesday thereafter at 9:30 am until further order.

[1] Bail Act 1977 (Vic) s 4 ('Bail Act').