Re Barbar [2025] VSC 404 (4 July 2025)

1 On 28 May 2025, the applicant was arrested and charged with 10 offences: one charge of possessing an explosive substance[1] (charge 1); one charge of trafficking a drug of dependence (namely 1,4-butanediol)[2] (charge 2); one charge of possessing a drug of dependence (namely 1,4-butanediol)[3] (charge 3); one charge of possessing a drug of dependence (namely methylamphetamine)[4] (charge 4); one charge of theft of a motor vehicle[5] (charge 5); one charge of handling stolen goods[6] (charge 6); one charge of possessing cartridge ammunition[7] (charge 7); one charge of possessing a drug of dependence (namely an unknown prescription drug)[8] (charge 8); one charge of dealing in property suspected to be the proceeds of crime[9] (charge 9); and one charge of failing to comply with a direction issued under s 465AAA of the Crimes Act (charge 10).

2 The applicant, who is 26 years of age, has no prior convictions. After she was arrested and charged, she was remanded in custody. She has been in custody since 28 May 2025. On 23 June 2025, she applied for bail in the Magistrates' Court. Her application was refused. On 23 June 2025, she filed a notice of intention to make an application for bail in this Court. This is the determination of that application.

3 Trafficking in a drug of dependence is a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 ('the Act').[10] Charge 2 (trafficking in a drug of dependence) is alleged to have been committed by the applicant on 28 May 2025. At that time, the applicant was subject to a summons to answer to another charge of trafficking in a drug of dependence (again, 1,4-butanediol). Accordingly, in order to be granted bail, the applicant must establish the existence of exceptional circumstances that justify a grant of bail.[11] In her notice of intention to make an application for bail, the applicant identifies the grounds on which the application is made as follows:

The applicant shows exceptional circumstances through a combination of factors including, admission to residential rehabilitation, delay, no priors, ties to the jurisdiction, family support and triable issues.

4 The respondent opposes bail being granted to the applicant. It contends that she has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify a grant of bail.[12] In opposing the application, it also contends, amongst other things, that the applicant 'is an unacceptable risk of committing further offending as she has shown [she] has continued to possess and traffick 1,4-butanediol'.

5 On 13 November 2024, pursuant to a search warrant, police attended the home of the applicant and MD. Upon arrival, police arrested MD in relation to an aggravated burglary. Police then commenced a search and allegedly located various items, including bottles containing liquid believed to be 1,4-butanediol; an imitation handgun, 19 rounds of .22 ammunition and a section of the barrel of a sawn-off longarm; a ziplock bag containing a white crystal substance believed to be methylamphetamine; three iPhones; a Virgin money card and an ANZ Visa card in the names of people other than the applicant and MD; and $1,600 cash. The applicant was arrested, and she and MD were taken to Cranbourne Police Station, where they were interviewed. Each of them 'provided a full no comment interview' (although the applicant allegedly admitted ownership of her iPhone and cash.

6 On 13 March 2025, the applicant was charged with seven offences arising out of the search conducted in November 2024: one charge of trafficking a drug of dependence (namely 1,4-butanediol); one charge of possessing a drug of dependence (namely methylamphetamine); one charge of possessing a registered Category B longarm without being the holder of a licence; one charge of possessing an imitation firearm; one charge of possessing ammunition while not being the holder of a licence; one charge of handling stolen goods; and one charge of dealing with the proceeds of crime (namely $1,600 cash), knowing the cash was the proceeds of crime. It is the charge of trafficking a drug of dependence, to which the applicant is subject to a summons to answer, which has put her in the position of having to satisfy the exceptional circumstances test in relation to charge 2 of the charges laid on 28 May 2025.

7 I turn now to the charges for which the applicant seeks bail in this application.

8 Charges 5 and 6 relate to the theft of a motor vehicle from a driveway on the night of 28 and 29 April 2025. The victim of that offending posted photographs of his stolen vehicle to social media sites. He was then contacted via Facebook Messenger by a person who provided him with a Snapchat video which had been uploaded at 4:00 am on 29 April 2025. The Snapchat account was allegedly in the name of 'Zarnamay', and the witness stated that the account belonged to a person he had been to school with - Zarna Barbar. Subsequently, police found the vehicle, allegedly parked approximately 300 metres from the applicant's home.

9 The remaining charges arise out of the execution of a search warrant at the applicant's home on 28 May 2025. The prosecution alleges that police found a large number of items, including: various bottles of viscous liquid; ice pipes; a number of ziplock bags containing white powder; a paramedic first aid kit with the name 'Jenkin' written on it; a ziplock bag 'with white tablet'; twenty white tablets in a ziplock bag; eight Remington rifle rounds; 6 Winchester 357 rounds and one .22 round; assorted jewellery; a Visa card in the name of someone other than the applicant and MD; an Autel key fob; an Apple iPad; and various items and materials that appeared to be explosive or explosive-related, and/or which were later assessed as being explosives or explosive-related[13] (although I note that, in respect of charge 1, the applicant is only charged with knowingly having in her possession 'an explosive substance, namely "Powergel"').

10 During the course of the search on 28 May 2025, the applicant is alleged to have refused to grant police access to her mobile phone, a second mobile phone which was found, and to her iPad. It is these alleged refusals that are said to give rise to charge 10.

11 In support of her application for bail, the applicant principally relied upon an affidavit sworn by her solicitor, Zarah Garde-Wilson, on 23 June 2025.[14] In what might be thought to be more of a submission than an affidavit, Ms Garde-Wilson states that the applicant relies upon a combination of factors to establish that there are exceptional circumstances justifying a grant of bail. She identifies these as:

(a) Triable issues in relation to the prosecution case.

(b) Delay.

(c) Ties to the jurisdiction and family support.

(d) Lack of any prior convictions/relatively young age.

(e) The availability of residential rehabilitation.

12 Under various headings tied to paragraphs of s 3AAA(1) of the Act, Ms Garde-Wilson makes the following assertions:

(1) Nature and seriousness of the alleged offending:[15] The charges are all laid in the summary jurisdiction of the Magistrates' Court. The prosecution case against the applicant is put on the basis that the applicant had knowledge of items located that were within her home. The same case is made against her co-accused, MD, who also resided at the premises.[16] The items found have not been forensically tested. MD has 'lengthy priors for drug-related offending'. There will be a delay caused by the need for forensic testing.

(2) Strength of the prosecution case:[17] The drug charges rely on s 5 of the Drugs, Poisons and Controlled Substances Act, commonly referred to as 'the deeming provision', as the drugs were located at the applicant's home. Forensic testing may assist in determining which co-accused[18] handled the items which were not in plain sight. Moreover, the deeming provision does not apply to charge 1 (possessing an explosive substance). In the absence of DNA or fingerprint evidence, 'there is a clear triable issue in this matter being both knowledge and intent to possess'.

(3) Criminal history:[19] The applicant has no criminal history.

(4) Compliance with earlier grants of bail:[20] The applicant has never been on a grant of bail.

(5) Section 3AAA(1)(e): At the time of the alleged offending, the applicant was on summons for the offending she was alleged to have committed on 13 November 2024 with MD. Those charges are contested and listed for a contest mention on 18 July 2025.

(6) Personal circumstances:[21] The applicant is 26 years of age. She completed Year 12 and a Diploma in Nursing before purchasing her first home (the premises at which the search warrants were executed). Two years ago, the applicant ceased nursing and commenced escort work. Her drug use 'escalated'. She is supported by her parents, who are separated. Her mother operates a child care centre, and her father is a paraplegic.

(7) The length of time the applicant is likely to spend in custody if bail is refused:[22] The applicant was arrested, charged and remanded into custody on 28 May 2025. The matter is listed for mention on 18 July 2025. It will then be adjourned for a contest mention. The delay in DNA testing is anticipated to be 'at least 12 months on remand before a contested hearing'.

(8) The likely sentence to be imposed should the applicant be found guilty:[23] Should the applicant either plead guilty, or be found guilty, she would 'potentially be eligible for Drug Court or alternatively a combined term with a CCO'.

(9) Other surrounding circumstances: The applicant has been assessed by Maria Hutchinson, an addiction treatment counsellor with The Cottage as to her suitability for The Cottage as well as post-admission treatment. She has also been assessed by Aaron Gilhooley, general manager, The Cottage, and found suitable for a 90-day residential program. The reports of Ms Hutchinson and Mr Gilhooley are exhibited to Ms Garde-Wilson's affidavit.

13 As to proposed bail conditions, Ms Garde-Wilson suggested:

(a) To complete a 90-day program at The Cottage and comply with all lawful instructions by staff of The Cottage.

(b) Any other conditions [the] Court deems appropriate.

14 As I have already observed, the respondent opposes bail. In doing so, it relies upon an affidavit of a solicitor employed with Victoria Police, Nicole Cicchiello, affirmed or sworn on 1 July 2025.[24] The affidavit exhibits an informant's report ('Informant's Report') completed by Detective Leading Senior Constable Chris Zurek. The Informant's Report has two appendices:

• Appendix A, being the brief of evidence relating to the current charges; and

• Appendix B, being the brief of evidence relating to the 13 November 2024 charges.

15 Appendix A contains a statement completed by a scientist at the Victoria Police Forensic Services Centre, John Kelleher, dealing with the various items and materials found on 28 May 2025 which are alleged to be explosives; together with numerous photographs of the premises, items found at the premises and the motor vehicle the subject of charge 5. Appendix B contains the preliminary brief statement made by the informant in the November 2024 matter, Detective Senior Constable Kimberlee Davidge, together with photographs of the various items found on 13 November 2024.

16 The Informant's Report commences with a summary of the alleged offending which gives rise to the current charges. While the summary does not identify the drug of dependence the subject of the trafficking charge (charge 2), it contains an opinion from a member of the Bomb Squad about what might have occurred if some of the material found during the search had exploded. While that opinion noted that 'mining explosives become less sensitive with age and to a point that they are no longer effective', it went on to state that 'if all the explosives had detonated as intended the damage would have been significant and potentially have catastrophic consequences'.

17 The Informant's Report set out the procedural history of the current charges, and then summarised the offending the applicant is alleged to have engaged in on 13 November 2024. The informant noted that the 1,4-butanediol found on 13 November 2024 was estimated as being a total of approximately 1870ml, which is '130ml short of a commercial quantity'.

18 The Informant's Report noted that the applicant has no criminal history, nor any active family violence intervention orders.

19 In relation to Ms Garde-Wilson's affidavit, the Informant's Report makes the following points:

(1) MD is not a co-accused of the applicant in relation to the current charges. He is a co-accused in relation to the November 2024 charges. MD was not remanded on 13 November 2024. He was bailed to appear in the Magistrates' Court on 24 February 2025. Moreover, on 17 March 2025, he was charged in relation to an unrelated matter and bailed with conditions that he reside at an address in Tenby Point. More specifically, MD has not been residing at the applicant's address since at least March 2025.

(2) While DNA evidence linking the applicant to items seized from her home would be supportive of the prosecution case to some degree, given that all items were seized from where the applicant lives, the prosecution cannot eliminate the potential for DNA transfer. As the informant put it, 'Therefore, the prosecution cannot rely on DNA solely to link the applicant. The only value in DNA testing will be to identify potential co-offenders who may have handled the drugs and explosives'. I interpolate here that these assertions seem to miss the applicant's point that DNA testing may show that she has had no contact with some of the items and materials found by police and is thus not guilty of possessing them.

(3) Some of the explosives have been examined for fingerprints 'which provided no result'.

(4) The informant believes that the applicant is trafficking drugs 'not out of necessity to fund her drug habit but for monetary gain'.

20 The Informant's Report asserts that the applicant is an unacceptable risk of committing further offending as she has continued to possess and traffick 1,4-butanediol. The informant notes that the applicant initially claimed that she does not use drugs. As it is put in the Informant's Report:

This is concerning to police as she is not trafficking for her own drug habit but trafficking for money and her own greed. Drugs in the community are a significant concern and the accused has no regard to the high impact offending associated with the drugs she is selling.[25] Police believe that no bail conditions will alleviate the accused's need to traffick drugs.

21 The informant also asserted that police have particular concerns surrounding the accused's possession of a large quantity of explosives in her garage. As the informant put it:

The explosives[26] have the ability to cause significant harm in the area she resided in if they exploded. They applicant had no regard for others by hiding these in her garage. The area she lives in is a high-density residential area that could have placed the community at risk of death or serious injury.

...

[P]olice believe no bail conditions would reduce the accused offending and the risk remains unacceptable.

22 Yesterday, the respondent filed a further affidavit[27] ('the respondent's second affidavit'). The respondent's second affidavit exhibited an intelligence report and a further statement from the informant. The intelligence report details a conversation between the applicant and her brother on the prison telephone system where the applicant is currently remanded. In that call, the respondent is alleged to have told her brother that 'she cannot talk properly over the phone', before asking him 'if he can go to her house and get her laptop'. The applicant is alleged to have told her brother that 'her password is the name of her dog that was just put down', before asking him 'if he knows what to do with it', to which her brother says, 'he does'. The applicant is alleged to have 'mention[ed]' that the police have her phone, but indicate[d] they do not have her laptop'.

23 The second affidavit then refers to the execution of search warrants at the applicant's home and a family property. The execution of the search warrant at the applicant's home resulted in the seizing of two laptops which 'will require forensic analysis'.

24 The respondent submitted that the applicant's statements to her brother on the prison telephone system could only be interpreted as a request by the applicant to her brother to, 'at least, try and ensure that investigators do not access that laptop'.

25 The respondent submitted that the applicant's call to her brother shows that her experience of being remanded in custody, and spending over a month in custody, has not deterred her from engaging in criminal behaviour. The respondent submitted that the applicant's alleged request of her brother was an obstruction of the course of justice and that, if released on bail 'the risk of the applicant further obstructing the course of justice would be heightened markedly should the applicant not be held in custody where all phone calls are recorded'.

26 The Cottage evidence in this case consisted of: two reports from Mr Gilhooley dated 11 and 30 June 2025; Mr Gilhooley's oral evidence given during the course of the hearing of this application; and a report of Ms Hutchinson, dated 17 June 2025.

27 In substance, the evidence of these witnesses was as follows:

(1) After undergoing 'an AOD Comprehensive Assessment', the applicant has been assessed to be suffering from a substance use disorder. Given the history and pattern of the applicant's drug use, it appears that she meets the criteria for substance use disorder (poly-substance) as detailed in DSM-5.

(2) The Cottage is located in Shepparton and offers a stable residential program for men and women. Loosely based upon a therapeutic community model, The Cottage offers a participative, group-based approached to long-term mental illness, personality disorders and drug addiction.

(3) The applicant would benefit from help and education around understanding and working to overcome her addiction. A residential model will assist the applicant to look holistically at the way her disease manifests in her life around her thinking and behaviour. It will assist the applicant in staying honest and accountable for her behaviours within a 24 hour therapeutic community environment and provide a foundation for her in changing a lifetime of beliefs and behaviours.

(4) The Cottage management team has agreed that the applicant is an appropriate 'fit' for their program and that their program will be of benefit to her ultimate rehabilitation into society. The Cottage can admit the applicant from custody and will have a bed available if bail is granted.

(5) It is also recommended that the applicant be referred to Goulburn Valley Health and attend assessment and treatment with an addiction medicine specialist while she is at The Cottage. Additional support, by way of an 18 week outpatient program after the 12 week inpatient program, could also be of assistance.

28 Section 1B of the Act sets out the guiding principles which the Parliament intends should be had regard to when interpreting and applying the Act. The principles to which regard is to be had are set out in ss 1B(1AA) and (1) as follows:

(1AA) The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.

(1) The Parliament also recognises the importance of -

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

29 Sections 4A and 4D of the Act require the Court, as step one, to consider the exceptional circumstances test; and then to move, as step two, to the unacceptable risk test.[28] At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.[29]

30 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.[30] The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.[31]

31 It is well-established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him or her.[32]

Has the applicant established exceptional circumstances?

32 The most serious of the applicant's current charges is charge 2 (trafficking a drug of dependence). It carries the highest maximum penalty of the charges on which the applicant seeks bail, and it is the only Schedule 2 charge. In assessing its seriousness, however, it must be remembered that it is a charge of trafficking simpliciter (not trafficking in a commercial quantity), involving a drug of dependence (1,4-butanediol) which has been accepted as being a drug the trafficking of which is less profitable than the trafficking of other drugs of dependence.[33] Moreover, if the applicant is found guilty, she will fall to be sentenced as a person with no prior convictions.

33 Having considered all of the material relied upon by the parties, it seems to me that it is very likely that, if the applicant were to be found guilty, she would not be sentenced to a term of imprisonment. Without wishing to fetter in any way the discretion of any magistrate who might ultimately come to sentence the applicant, if the applicant pleads guilty or is found guilty, the most likely sentencing disposition in this case would involve the imposition of a community correction order.[34] More specifically, and without downplaying the seriousness of the applicant's alleged offending, I do not think it is at all likely that, upon conviction, the applicant would receive a term of imprisonment or, in any event, a term of imprisonment which would exceed the time she would spend on remand if her application for bail were to be refused.

34 As has been said before, the fact that an applicant for bail might spend more time in custody than they are likely to be sentenced to on conviction is a very relevant circumstance in determining whether bail should be granted.[35]

35 It is not necessary for me to consider the various arguments about the strength or otherwise of the prosecution case. What I have already said about the likely sentencing disposition for a person with no prior convictions charged with these offences is sufficient to reach the conclusion that exceptional circumstances justifying a grant of bail have been made out. Nevertheless, I am fortified in this conclusion by the evidence given in relation to the proposed admission of the applicant to the residential program conducted by The Cottage.

36 For the reasons given above, the applicant has established exceptional circumstances justifying a grant of bail.

Has the respondent established that releasing the applicant on bail involves an unacceptable risk?

37 The risks identified by the respondent, and which the respondent contends are unacceptable, are that, if released on bail, the applicant would commit a Schedule 2 offence (trafficking 1,4-butanediol, or perhaps some other drug of dependence); and/or that the applicant would otherwise endanger the safety or welfare of members of the community (either through her drug trafficking or by possessing explosive substances or in some other manner); and/or that the applicant would obstruct the course of justice in relation to the charges she is facing.

38 The first point to be made with respect to the applicant's possible possession of explosive substances is that, according to Mr Kelleher's statement, all of the explosive substances found were, after the completion of his examination, 'retained, destroyed or otherwise disposed [of]'. There is no suggestion of the applicant attempting to obtain (or having a motive to obtain) other explosive items.

39 Plainly if released on bail, there is a risk that the applicant will engage in trafficking a drug of dependence. Equally plainly, trafficking in drugs of dependence has the capacity to endanger the safety and welfare of members of the community. The issue in this case is whether, taking into account the surrounding circumstances, there are conditions of bail that may be imposed to mitigate these risks so that they are not unacceptable risks.[36]

40 In my view, there are conditions of bail that may be imposed to mitigate the risks I have referred to so that they are not unacceptable. Such conditions would include conditions as to residence, a curfew, reporting to police and being required to abstain from possessing or using drugs of dependence. Moreover, and of at least equal importance, would be conditions designed to deal with the applicant's diagnosed poly-substance use disorder. The importance of dealing with such disorders in young people (and particularly those charged with criminal offences) cannot be overstated. It is in the interests of the community (including in the protection of the community) that such disorders be treated so as to break whatever cycle of crime might otherwise be commenced or engaged in by an offender.

41 That said, of potentially more concern is what was is alleged to have been said by the applicant to her brother on the prison telephone system.[37] While there may be an innocent explanation for what the applicant is alleged to have said, there is some force in the respondent's submission that what was said demonstrates a willingness on the part of the applicant to engage in further offending and/or to otherwise obstruct the course of justice. To that extent, these allegations tell against a grant of bail.

42 Nevertheless, I come back to the fact that the applicant is relatively young and has no prior convictions. Moreover, there is little (if anything) that the applicant could now do to obstruct justice in relation to the charges which she faces. In all of the circumstances, it seems to me that the imposition of stringent bail conditions, requiring, amongst other things, daily reporting to police, would make such risk as there is, of the applicant obstructing the course of justice, not unacceptable within the meaning of s 4E(3)(b) of the Act.

43 It follows from what I have said above that the respondent has not established that the risks it asserts are unacceptable risks.

44 Bail will be granted upon terms which include conditions of the type and strictness to which I have referred above.

[1] Contrary to s 317(4) of the Crimes Act 1958.

[2] Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.

[3] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.

[4] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.

[5] Contrary to s 74 of the Crimes Act.

[6] Contrary to s 88(1) of the Crimes Act.

[7] Contrary to s 124 of the Firearms Act 1996.

[8] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act.

[9] Contrary to s 195 of the Crimes Act.

[10] See Item 24(b) of Schedule 2 of the Act.

[11] See s 4A of the Act, as applied by s 4AA(2)(c)(ii).

[12] Although, in oral argument, counsel for the respondent appeared to accept that there was force in the proposition that the applicant (if found guilty) would not likely be sentenced to a term of imprisonment, and that this was a significant factor on the issue of exceptional circumstances.

[13] These items and materials are alleged to include primers, detonators, various cartridges, a 'Large cartridge Powergel Magnum 315' approximately five metres of Shearcord, five metres of Redcord, and five metres of safety fuse, together with a number of 'suspected ammonium nitrate' and 'suspected potassium perchlorate'.

[14] Ms Garde-Wilson swore a further affidavit on 3 July 2025, updating a small number of matters.(including detailing her instructions that the applicant had been placed in protection due to media publicity).

[16] As will become apparent, this is disputed by the respondent because, while MD is a co-accused in relation to the offending alleged to have been committed in November 2024, he is not a co-offender in relation to the present charges.

[18] As I have already observed, the respondent's position is that MD is not a co-accused on these charges.

[24] On the first page of the affidavit, the affidavit is said to have been sworn, on the last page of the affidavit it is first said to have been affirmed, before later referring to it as having been sworn. Curiously, the person before whom it was either affirmed or sworn appears to have signed it on 30 June 2025.

[25] I interpolate that it should be remembered, however, that the trafficking charges the applicant faces are in respect of 1,4-butanediol.

[26] I interpolate that it should be remembered, however, that the possess an explosive substance charge (charge 1) relates to only one of the many items found at the applicant's premises - and not the many items about which there is reference to in the Informant's Report.

[27] An affidavit sworn by Leigh Harrison, another solicitor employed by Victoria Police.

[28] See s 4A(4) of the Act.

[29] See s 4A(3) and s 4E(3)(a) of the Act.

[30] See s 4A(2) of the Act.

[32] See Zayneh v The King [2023] VSCA 311, [33] (Walker, Taylor and Boyce JJA).

[33] See Ellis v The Queen [2018] VSC 221, [19]. See also DPP (Cth) v Maxwell (2013) 228 A Crim R 218, 223 [20]-[21]; [2013] VSCA 50 (Maxwell P, Weinberg and Priest JJA) as to the relevance, of an expected reward from trafficking being 'small or non-existent', for sentencing purposes.

[34] By way of example, and noting that no individual sentencing decision is a precedent, in DPP v Bugeja [2017] VCC 782, the offender was sentenced for trafficking in a drug of dependence not less than a commercial quantity (12 kilograms with a sale price of $11,800) and other offences, including being a prohibited person possessing an unregistered firearm, to a three year community correction order. Plainly, the applicant's alleged trafficking in this case is substantially less serious than Mr Bugeja's.

[35] See s 3AAA(1)(aa), (k) and (l) of the Act. See also Re Johnston (No 2) [2018] VSC 803; Re Singh [2025] VSC 266, [39] (Tinney J).