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[2017] VSC 568
General information, not legal advice.
Supreme Court of Victoria
2017-09-21
BEACH JA
Original judgment source is linked above.
CRIMINAL LAW - Bail - Trafficking a commercial quantity of a drug of dependence - Firearms charges - Using or procuring the use of intimidation - Requirement to show 'exceptional circumstances' - Whether exceptional circumstances made out - Whether an unacceptable risk of committing an offence while on bail, endangering the safety or welfare of members of the public or interfering with witnesses - Exceptional circumstances not made out - Unacceptable risk of committing an offence while on bail - Bail refused.
1 The applicant has been in custody since 31 March 2017. He is currently facing the following charges:
2 A bail application in respect of these charges was refused in the Magistrates' Court on 23 June 2017. On 17 August 2017, the applicant filed an application in this Court for bail. Because the applicant is charged with trafficking a drug of dependence in a quantity not less than the applicable commercial quantity, contrary to s 71AA of the Drugs Poisons and Controlled Substances Act 1981, bail must be refused unless the applicant can satisfy the Court that 'exceptional circumstances exist which justify the grant of bail'.[1]
3 The Crown case is that the applicant is a member of a drug syndicate that has been involved in the trafficking of methylamphetamine on a large scale in the Mildura area. The applicant is alleged to be in the second tier of a three tier structure. It is alleged that the applicant would purchase methylamphetamine from first-tier members, VB and PC, and then on-sell to third-tier members, CD, JP, NT, AM and others, at a profit.
4 In summary, the Crown case on charge 1 is that, for periods of time, an ounce of methylamphetamine was trafficked to the applicant on a daily basis. The Crown case is that, on at least 39 occasions between 29 September 2016 and 30 March 2017, the applicant was supplied with one ounce of methylamphetamine (equating to in excess of one kilogram of methylamphetamine) at a cost of $7000 an ounce. $7000 an ounce is said to be a discounted price 'due to the large and ongoing quantities that [the applicant] has purchased'. One kilogram of methyl amphetamine is said to have a street value of $1 million, if sold at $100 per 0.1 grams.
5 On 31 March 2017, the applicant was charged with trafficking in a commercial quantity of methylamphetamine between 29 September 2016 and 30 March 2017, charge 1. He was also charged with the firearms offences that are charges 2-7, and possession of a small quantity of cannabis, charge 8.
6 On 8 June 2017, the applicant was charged with the offences that constitute charges 9-25. These charges arise from a search, conducted on 4 April 2017, of premises at which the applicant was employed in Cullulleraine. Amongst the items located in this search were:
7 Charge 26 was laid on 21 June 2017. This charge involves an allegation that the applicant has sought to procure the intimidation of one of his co-accused in relation to evidence that may be given by her against him.
8 The Crown case includes physical surveillance evidence, and various telephone intercepts, recordings and text messages to which the applicant is a party. The Crown assert that the case against the applicant is a strong one.
9 The applicant is 48 years of age having been born on 18 March 1969. He has lived his whole life in the Mildura region. At the time of his arrest he was employed as a supervisor and handyman by James Macri in Cullulleraine. The applicant does not have, and never has had, a passport.
10 In support of the applicant's application for bail, the applicant's solicitor swore an affidavit in which he identified the matters the applicant relied upon as constituting exceptional circumstances and justifying a grant of bail. The matters referred to in the affidavit were as follows:
(a) Delay: the applicant contends that a committal is unlikely to be listed before May 2018, and a trial is unlikely to occur before August 2019. This will result in the applicant potentially spending up to 28 months in custody before trial.
(b) Ties to the jurisdiction: the applicant has resided in Mildura his entire life, with his parents, children and ex-partner also residing in the area.
(c) Suitable accommodation: the applicant contends that he is able to reside with his parents in Mildura.
(d) Employment: the applicant submitted a letter from James Macri confirming that he employed the applicant prior to the applicant's arrest, and offering employment to the applicant if bail were to be granted.
(e) Family support: the applicant is said to have a good relationship with his ex-partner and children, and also has the support of his parents.
(f) Surety: the applicant's parents are willing to provide a $50,000 surety.
(g) Criminal history: the applicant is said not to have any prior criminal history.
(h) Parity with co-accused: two of the applicant's co-accused, JP and AM, were granted bail in the Magistrates' Court on 23 June 2017.
11 During this morning's hearing, counsel for the applicant cross-examined the informant about the nature of the case against the applicant, the volume of evidence that might ultimately be served as part of the police brief and in response to disclosure requirements, and the strength of the Crown case. It was plain from that cross-examination that the volume of material that might ultimately be served will be substantial, and may take some time to process.
12 Following the cross-examination of the informant, and by reference to his cross-examination, counsel for the applicant submitted that, while the case of trafficking itself was a strong one, the Crown case that the amount trafficked was at least a commercial quantity was a weak one. It was submitted that the evidence of trafficking after 10 January 2017 was weak. As to commercial quantity generally, the Crown case was said to rely upon a mere belief that on each occasion the applicant met with his suppliers (the 39 occasions), one ounce of methylamphetamine was trafficked. It was put that it was at least equally as likely that on many occasions no amount was trafficked - the applicant having known the relevant individuals for the whole of his life and therefore having reasons, other than those associated with trafficking, to meet with the relevant individuals.
13 Counsel for the applicant then submitted that the initial estimate of a delay of 28 months might be conservative and that, realistically, if not granted bail, the applicant might be in custody for in excess of three years. It was submitted that this period together with the other matters relied upon by the applicant (including what was said to be the obvious impairment of any relationship between the applicant and his children that would be brought about by the applicant's incarceration) constituted exceptional circumstances.
14 As to unexceptional risk, the applicant's counsel pointed to the fact that the applicant had no ties to any area or jurisdiction other than the Mildura area and that he had effectively 'nowhere else to go'. As to the risk of committing further offences or interfering with witnesses, the applicant's counsel submitted that this was highly unlikely given that it would be quickly and easily detectable, and detected, in a country town. Moreover, as to the potential interference with witnesses, this was said to be unlikely on the basis that the prosecution is 'mainly electronic'. It was thus submitted that, in reality, there was no unacceptable risk of the applicant committing further offences or interfering with witnesses if he were to be released on bail.
15 The Crown opposes bail. The Crown submitted that the applicant has not shown exceptional circumstances. Moreover, the Crown contended that there was an unacceptable risk that the applicant, if released on bail, would commit further offences, and/or endanger the safety and welfare of members of the public, and interfere with witnesses or otherwise obstruct the course of justice.[2] In its written material, the Crown also relied upon an unacceptable risk that, if granted bail, the applicant would not answer his bail. That submission was, however, not pursued by counsel for the respondent this morning.
16 The Crown disputed that the applicant had no prior criminal history. The Crown exhibited to its affidavit in opposition a copy of the applicant's criminal history showing dishonesty offences committed between 1990 and 1992 and a conviction for intentionally causing injury in 1993.
17 In relation to the suggested accommodation with the applicant's parents, the Crown noted that the applicant's parents were elderly, and submitted that they were unlikely to be able to adequately supervise the applicant.
18 As to employment, the Crown observed that the applicant's proposed employer is related to one of the co-accused, has some knowledge of the applicant's offending, and is intended to be a Crown witness. Accordingly, the Crown submitted that the proposed employer would not be a suitable person to employ the applicant if bail were to be granted.
19 As to 'parity', while two of the applicant's co-accused have been granted bail, the Crown's position is that the applicant's offending is significantly more serious than the co-accused's offending. Moreover, the two co-accused (JP and AM) are third-tier members, and lower than the applicant, in the offending syndicate.
20 In relation to delay, counsel for the respondent asserted that it was likely that there could be a trial of this matter within 15 to 20 months. The parties were plainly in heated dispute about the likely timeframe for a trial.
21 The Crown contends that the applicant poses significant risks if released on bail. The Crown asserts that the applicant has already attempted to contact NT via SM. Additionally, the Crown case is that the applicant owes drug debts to those further up the hierarchy (it would appear that a sum of $16,000 may be owed), and is owed drug debts from those beneath him in the hierarchy (it would appear that a sum of $10,000 may be owed). It is contended that the applicant will have to engage in drug trafficking to repay the debt owed by him, and that he will use violence or intimidation to collect on any debts said to be owed to him. The Crown case is that the applicant has in the past actively confronted and threatened the family members of those who owe debts to him. The applicant's propensity for violence is also said to be demonstrated by the existence of family violence intervention orders that have been made against him.
22 The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the serious nature of the charges against him - and in particular, the charge of trafficking a commercial quantity of a drug of dependence.[3] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[4]
23 None of the circumstances in the present case that are relied upon by the applicant (either alone or in combination) amount to exceptional circumstances. While it is not appropriate to set out here any detailed analysis of the strength of the Crown case, it is sufficient to say that the strength of the Crown case is not so lacking in substance as to constitute exceptional circumstances. As was conceded in argument by counsel for the applicant, the case of trafficking is, and the cases in relation to the firearms and silencer that are the subject of charges 2 to 7 are, strong. In circumstances where the prosecution brief has not yet been served, I am not persuaded that the Crown case on the issue of commercial quantity is so weak as to constitute exceptional circumstances.
24 The most significant of the matters relied upon by the applicant in support of his case that there are exceptional circumstances is the fact that he may spend up to 28 months in custody (if one accepts the estimate in the applicant's solicitor's affidavit) before trial if bail is not granted. I do not propose to attempt to resolve what are now the competing estimates of time between the parties. I will proceed on the assumption that a delay of the order of 28 months is possible, if not likely.
25 A delay of the order of 28 months is plainly less than desirable, and not at all satisfactory. Such a delay does not, however, constitute exceptional circumstances in this case - either when considered alone or in combination with the other matters relied upon by the applicant.[5] The case is one of some complexity, involving six co-accused and a considerable body of evidence. That said, any longer delay than that currently in contemplation may well give rise to a very different conclusion on the issue of exceptional circumstances. All efforts need to be made to ensure that the prosecution of the applicant's present charges proceeds in a timely fashion.
26 I turn now to the question of unacceptable risk, although a conclusion that there are at this stage no exceptional circumstances forecloses the possibility of bail being granted. Even if, contrary to my conclusion, exceptional circumstances could be shown, as has been observed before, the application for bail must be refused if the prosecution establishes unacceptable risk.[6]
27 As to the issue of unacceptable risk, I accept the submissions made by the respondent that the applicant, on all of the material adduced on this bail application, does pose an unacceptable risk of committing further offences and/or intimidating witnesses if released on bail. It is very likely that if the applicant is released on bail he would offend in the ways described by the respondent in its material. Moreover, nothing about the applicant suggests that he would desist from engaging in acts of violence of the kind alleged against him were he to be granted bail.
28 The fact that Mildura is, by capital city standards, relatively small, does not cause me to conclude that the applicant would not commit further offences or attempt to interfere with witnesses. Similarly, the fact that the prosecution case is 'mainly electronic' does not detract from the possibility that the applicant may attempt to interfere with witnesses.
29 Further, given the circumstances of the alleged offending and the applicant's alleged involvement in offending, in my view, there are no bail conditions which would ameliorate the risks of the applicant committing further offences or interfering with witnesses if he were to be released on bail.
30 In the circumstances, the applicant's application for bail must be refused.
[1] Section 4(2)(aa) of the Bail Act 1977 ('the Act').
[3] Re John McDonald [2010] VSC 217 [10].
[5] Cf Re Application for Bail by MO [2017] VSC 557 [6], [19], [21] in relation to a potential period of in excess of 3 years in custody prior to trial. See further, DPP v Barbaro [2009] VSCA 26; (2009) 20 VR 717, 726-728 [33]-[41] ('Barbaro').
[6] Barbaro [2009] VSCA 26; (2009) 20 VR 717, 719 [6]; Dale v DPP [2009] VSCA 212 [27].
(2009) 20 VR 717