Re Dukic [2018] VSC 664 (2 November 2018)

2 Mr Dukic has been in custody since his arrest. On 6 September 2018, he applied for bail at the Melbourne Magistrates' Court, but was refused on 21 September 2018. The present charges are currently listed for a further mention on 16 January 2019.

3 There are two co-accused in this matter, Sasa Dukic, a brother of Mr Dukic, and Melinda Naughten. Sasa Dukic and Ms Naughten are partners, and Ms Naughten has also applied for a grant of bail from this Court.

4 At the time of his arrest, Mr Dukic was on bail in respect of 43 offences allegedly committed in October 2017. These involve charges of possessing a drug of dependence (15 counts), possessing more than three unregistered firearms, being a prohibited person possessing a firearm, possessing cartridge ammunition without licence, dishonest retention of stolen goods (three counts), dealing with property suspected proceeds of crime ($122,514.75), possessing explosive substance without lawful excuse, storing unauthorised explosive without approval, conduct endangering life (three counts), conduct endangering persons (three counts), possessing prohibited weapon without exemption (six counts), trafficking in drug of dependence (two counts), trafficking in not less than a commercial quantity of a drug of dependence, possessing unregistered handgun (two counts), possessing registered handgun without licence, and trafficking in not less than a large commercial quantity of a drug of dependence.

5 On 1 February 2018, Mr Dukic was granted bail in relation to those charges, after a period spent in custody following arrest. On 6 June 2018, bail was extended on slightly reduced conditions at the conclusion of his committal hearing at the Melbourne Magistrates' Court. His trial is currently listed for a funding mention in the County Court on 21 November 2018.

6 On 12 October 2018, the Director of Public Prosecutions ('DPP') filed an application for revocation of the above grant of bail. I determined to hear this application and the application for bail simultaneously, on the basis that it was in the public interest to save time and unnecessary expense. As Mr Dukic is both an applicant and a respondent before the Court, it is convenient to describe him simply as 'Mr Dukic'.

7 This application for bail was filed on 2 October 2018. Accordingly, the amendments to the Bail Act 1977 ('the Act') which commenced on 1 October 2018 apply.

8 Section 4AA(2)(c)(i) of the Act provides that the exceptional circumstances test applies to a person accused of a Schedule 2 offence if the offence is alleged to have been committed while the person was on bail for any Schedule 1 or 2 offence.

9 As above, Mr Dukic was previously granted bail for other charges, including the Schedule 1 offence of trafficking in not less than a large commercial quantity of a drug of dependence.[1] On 22 August 2018, he was charged three offences, including committing an indictable offence whilst on bail; a Schedule 2 offence.[2] Therefore, the exceptional circumstances test applies to his bail application before me.

10 Pursuant to s 4A(1A) of the Act, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The burden of satisfying the Court that exceptional circumstances exist rests with Mr Dukic.[3]

11 In considering whether exceptional circumstances exist, the Court must take into account the 'surrounding circumstances'.[4] Thus, pursuant to s 3AAA of the Act, the Court must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.

12 If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) then requires the Court to apply the 'unacceptable risk test'.

13 Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that an applicant would, if released on bail -

(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;

14 The Court must again consider the surrounding circumstances and whether any conditions may be imposed to mitigate the risk so that it is not an unacceptable risk.[5]

15 Further, when interpreting the Act, the Court is required by s 1B to take into account, inter alia, that -

(1) The Parliament recognises the importance of -

(a) maximising the safety of the community and persons affected by crime to the greatest extend possible; and

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

16 Section 18AE(2) of the Act provides that an application for revocation of bail is to be made to the court to which the person is required to surrender under their conditions of bail, other than when a person is charged with treason or murder.

17 However, this Court has inherent jurisdiction to hear all bail matters. As above, the application for revocation was filed in this Court and I determined it to be in the public interest for it to be heard alongside Mr Dukic's application for bail.

18 The Act provides that the Court may either revoke bail or dismiss the application, pursuant to s 18AF. The Act does not elaborate as to any requirements or considerations when determining such an application beyond the guiding principles contained in s 1B.

19 On 22 August 2018, police executed a search warrant at the residence situated in Rosebank Drive, Cranbourne North.

20 Police observed a clear plastic container containing a crystallised substance. Both Mr Dukic and Melinda Naughten were present and arrested. Sasa Dukic, the brother of Dejan Dukic, was arrested in Cranbourne and transported back to his residence.

21 Police allegedly located various items, including a large plastic container labelled 'Continental n-Butanol', a portable stove top, approximately 730 grams of methylamphetamine, a firearm magazine containing an unknown number of rounds, a 9mm semi-automatic handgun, $102,450 in cash, a clear container holding more methylamphetamine, a bowl containing approximately 100 grams of cocaine, a 'Décor' container containing approximately 37.05 grams of cocaine, two sealed bags containing 1.71 grams and 0.15 grams of methylamphetamine, a sealed bag containing five Ecstasy tablets, a clear container containing approximately 46.71 grams of methylamphetamine, a sealed bag containing 20.7 grams of amphetamine, two speed loaders, various boxes of ammunition, a British passport and other documents in the name of Inez Wertheim, a homemade Taser, a bag containing fireworks, a police issued ballistic vest and three firearm holsters.

22 Melinda Naughten was charged with numerous offences, including trafficking in not less than a large commercial quantity of a drug of dependence, possessing a drug of dependence, and being a prohibited person in possession of a firearm. As a result, Ms Naughten is also subject to the exceptional circumstances test in her bail application.

23 Mr Dukic provided a 'no comment' interview but stated that his DNA or fingerprints would not be located anywhere. He acknowledged that when police entered, the relevant items were directly in front of him, but that none belonged to him.

24 As above, Mr Dukic was already on bail for 43 other charges when charged with these three additional offences. It is necessary to provide a summary of these earlier charges, as they relate to the application of revocation of bail filed by the DPP.

25 The charges relate to events alleged to have occurred on 31 October 2017, following the execution of a search warrant at Mr Dukic's residence in Von Nida Drive, Cranbourne North. This residence was shared with his mother, Vera Dukic, and younger brother, Alexsandar Dukic. Both were co-accused in this matter, however, a number of charges have been withdrawn and others dealt with by way of diversion.

26 During the search, police allegedly located numerous items in Mr Dukic's bedroom. These included a container holding a white crystal substance, a plastic press sealed bag containing white crystal substance, two swords, 18 red capsules labelled ETMA, a 'Muela' double edged hunting knife, $660 in cash, a plastic press sealed bag with 19 white tablets, two plastic press sealed bags containing a white crystal substance, a 'No. 5 Chanel' book safe, a money tin containing $8404.75 and a knuckle duster.

27 In the kitchen area, police allegedly located a 'Tommy Hilfiger' bag containing $112,950 cash, a 78-1 Magnetism heating mixer, a plastic container containing blue and white crystal substance and box ammunition. Throughout the residence, five more swords, a ballistic vest, four 'City of Casey' street signs and a pill press with green residue were allegedly located.

28 In the garage, police allegedly observed a table displaying items for the trading and preparation for sale of drugs. They located a small chest of drawers containing numerous plastic press seal bags, a set of digital scales with a small container containing white crystal substance, $1000 cash, a Motorola MMR police issue radio, a butterfly knife, a glass cup containing white crystal, a small container containing white crystal substance, a set of nun chucks, a plastic press sealed bag containing green vegetable matter, a notebook containing what is believed to be drug transactions, one .22 calibre ammunition round, another sword and cannabis.

29 Police also located a concealed cavity in a shelving unit in the garage, containing three plastic bags of a white crystal substance, three loaded hand guns, a clear compressed plastic bag containing a white powdered substance, a hand gun wrapped in cloth, ammunition, plastic bags containing different coloured tablets, plastic press bags containing power substances, 15 glass vials containing liquid substance, a syringe containing clear liquid substance, 10 plastic vials containing clear liquid labelled 'Xlocaine', a plastic container, a vacuum sealed plastic bag containing two explosive sticks, detonator cord and detonators and one empty firearm magazine.

30 Full forensic results are yet to be provided, but preliminary examination of the substances found indicated at least 9.9 grams of cannabis and 92.43 grams of methylamphetamine. Mr Dukic provided a no comment interview on 31 October 2017.

31 Mr Dukic is 30 years old. Prior to his remand for the present charges, he was residing with his mother and younger brother, as above.

32 Mr Dukic has a criminal history dating back to 2014. He has numerous prior convictions for offences of possession and cultivation of drugs and possession of ammunition and explosives.

33 Relevantly, his history includes three convictions for contravening a suspended sentence order and one for contravening a community correction order ('CCO').

34 Mr Dukic submits that the following matters are established by evidence and in combination, demonstrate exceptional circumstances that justify the grant of bail.

35 Mr Dukic contends that the central issue in the present case is whether the evidence can establish that the relevant substances were in his custody and control. It is not alleged by the prosecution that he resided at the Rosebank Drive residence, nor can it be established how long he had been there before police arrived. The quantity of methylamphetamine alleged to be in his possession was in the lounge room. Mr Dukic's brother, Sasa Dukic, made full admissions during a record of interview. Mr Dukic submits that the evidence does not establish that he had used any of the drugs located within the premises, nor did police observe him using drugs at any stage.

36 Mr Dukic submits that this matter could not proceed at the summary case conference on 3 October 2018, as forensic testing was outstanding. It is listed for further mention on 16 January 2019, after which, a contest mention will be listed. I am told that a one day contested hearing in the Magistrates' Court would likely be five to six months from the date of a contest mention.

37 It is further submitted that if Mr Dukic was found guilty of any or all of the three charges, he may not receive a custodial term. This is due to the likelihood that the time spent on remand will exceed any sentence that would be imposed.

Availability of CISP and other support services

38 It is submitted that Mr Dukic successfully completed the Court Integrated Services Program ('CISP') in relation to his previous grant of bail. I was provided with a CISP report dated 7 September 2018 which assessed Mr Dukic as suitable for Community Referral and not requiring ongoing case management. Additionally, he has drug treatment and counselling available within the community upon release.

39 Mr Dukic submits that if granted bail, he will return to reside with his mother and younger brother in Cranbourne North. It was contended that he continues to be supported by his family throughout these proceedings.

40 I was provided with a letter from an expert painting business dated 4 September 2018, stating that Mr Dukic can be employed assisting painters, 5 days each week.

41 Since February 2018, Mr Dukic has attended 10 sessions with a psychologist, Dr Paul Grech. Dr Grech produced a report dated 4 September 2018 which indicates that arrangements have been made to resume treatment when he is released from custody.

42 A surety in the amount of $100,000 is available to be lodged on behalf of Mr Dukic.

43 It is submitted that a combination of these factors, along with Mr Dukic's limited criminal history, demonstrate that there is not an unacceptable risk that he would offend, fail to appear, interfere with witnesses or endanger the public.

44 Mr Dukic submits that there is a very high degree of overlap in his arguments regarding his bail application and those in opposition to the DPP's application for revocation of bail. The above submissions were therefore relied upon for both matters. However, he notes that the August 2018 charges are the predominant basis for the Crown's application for revocation. Mr Dukic emphasises the weakness of the prosecution's case regarding these charges, in opposition to the DPP's application.

45 The prosecution oppose Mr Dukic's application and submit that there is an unacceptable risk of him committing an offence if granted bail and placing himself and others at risk.

46 The prosecution point to the October 2017 charges, allegedly committed while Mr Dukic was on a CCO for drug related offending. Accordingly, it was argued that this demonstrated defiance and a breach of court orders. Further, as Mr Dukic was granted bail in respect of these charges, it is submitted the August 2018 allegations amount to further disregard for court orders.

47 It is submitted that even with the imposition of stringent bail conditions, the risks of further offending cannot be alleviated. The prosecution submit the nature of the alleged offending, potential relapse into drug use, and history involving the possession of firearms, all indicate that Mr Dukic poses a risk to the public.

48 It is further submitted that there are risks associated with Mr Dukic returning to his previous residence, arguing it is an unacceptable and risky environment. In this regard, I note that a number of charges against his mother and brother have been withdrawn and others dealt with by way of diversion.

49 The prosecution's application for revocation of bail is made on the ground that there is an unacceptable risk that Mr Dukic would commit an offence whilst on bail. During the hearing, I heard evidence from Senior Constable Dane Mason, who referred to the stringent conditions imposed on Mr Dukic when granted bail for the October 2017 charges. It is submitted that Mr Dukic has shown himself to be an unacceptable risk of committing further offences by virtue of the August 2018 charges.

50 As with Mr Dukic's submissions, the prosecution's arguments were largely common to both applications before the Court.

51 As to the application for bail in relation to the three August 2018 charges, I heard evidence from the informant, Constable Alexandra Kapetanovski. The charge in respect of drug use is said to be satisfied by her opinion that Mr Dukic appeared drug affected on the day of arrest. In cross examination, Constable Kapetanovski acknowledged that there was no further evidence to substantiate this charge. I am not satisfied that the evidence before me can be relied on to sufficiently found a conclusion that Mr Dukic was affected by illicit drugs on 22 August 2018.

52 Additionally, Constable Kapetanovski confirmed that Mr Dukic did not live at the Rosebank Drive premises and was unable to say how long he had been present before police arrived. At the time of hearing, no fingerprint or DNA analysis had been produced. The informant was unable to advise as to expected arrival of fingerprint analysis and reported the DNA results may take three to four months. The evidence is that Mr Dukic was present at the residence when police arrived and that some of the drugs located were within his close proximity, more than likely in his line of vision.

53 As above, my opinion is that the evidence as to Mr Dukic being drug affected is weak. I am unable to form a final opinion as to the strength of the case in respect of the remaining two charges, but the case cannot be said to be strong, given all the circumstances.

54 Furthermore, Mr Dukic is confronted by a significant delay in the resolution of his matters. It appears a strong possibility that the matter may not be finally disposed of until mid-2019, or even later. If he remains in custody, the delay may result in him spending more time on remand than he would if found to have committed the three August 2018 offences.

55 The Act does not define what may amount to exceptional circumstances. It is well established that, 'in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail'.[6] It has been observed that 'the hurdle confronted by an applicant in establishing exceptional circumstances "is a high one"'.[7] That said, it is not an impossible standard to reach.

56 It is well accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant.[8] Frequently, matters involving the nature of the Crown case involve issues concerning the strength or weakness of the case, undue delay in bringing the matter to trial, unusual features of the alleged offending or the investigation, which might either solely, or in combination, make the circumstances exceptional.[9]

57 As pointed out by Lasry J in Armstrong v R, in assessing whether exceptional circumstances have been made out:

the formulation that is most often referred to is that of Vincent J in Moloney in which his Honour observed:

A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[10]

58 In my opinion, given the combination of circumstances Mr Dukic has identified, he has shown exceptional circumstances that justify the grant of bail. In coming to this conclusion I have taken into account all the surrounding circumstances, as required.

59 Furthermore, I am satisfied that any unacceptable risks that are suggested to exist can be ameliorated by very stringent conditions on a grant of bail. In this regard, I have again taken into account all the surrounding circumstances. I note that Mr Dukic has employment available and the support of a recent CISP assessment.

60 Further, I will dismiss the application for revocation of bail, pursuant to s 18AF(b) of the Act. This is essentially due to the reasons advanced regarding the application for bail that I have allowed.

61 As the Act does not provide clear guidance as to how the discretionary powers provided for should be exercised, I have applied the guiding principles of the Act. I agree with the submissions of Mr Dukic that there is considerable overlap in the matters to be considered in relation to the two applications before me.

62 In essence, the application for revocation is based on the August 2018 charges. I am not satisfied that the case against Mr Dukic is a strong one and the allegations are of a significantly lesser degree of seriousness than those of October 2017. In my opinion, to revoke bail in these circumstances would result in Mr Dukic being remanded in custody for an unacceptably long period of time in the circumstances.

63 Aside from the allegation that Mr Dukic breached bail by committing further offences in August 2018, he otherwise appears to have complied with his bail conditions. It appears there are other matters that the informant seeks to interview him about, but this interview has not taken place and no date is set for it to occur. I placed little weight on this particular matter in favour of the prosecution's application for revocation.

[6] Re Sam [2017] VSC 91 [22].

[7] Armstrong v R [2013] VSC 111, citing Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990; see also Re Whiteside [1999] VSC 413.

[8] Re Fairest [2015] VSC 375 [17]-[18].

[10] Armstrong v R [2013] VSC 111 [31].