Re Gregory Rodin [2014] VSC 656 (18 December 2014)

One charge of trafficking in a drug of dependence of a large commercial quantity (methylamphetamine). [1]

One charge of trafficking in a drug of dependence of a commercial quantity (1, 4 butanediol).

Two charges of possession of a drug of dependence (methylamphetamine).

One charge of possession of a drug of dependence (1, 4 butanediol).

One charge of possession of a drug of dependence (actiq).

One charge of possession of a drug of dependence (heroin).

Two charges of possession of materials for trafficking in a drug of dependence.

Two charges of possession of precursor chemicals (two charges).

One charge of possession of a prohibited weapon (knuckleduster).

One charge of possession of property suspected of being proceeds of crime.

Three charges of being a prohibited person in possession of a firearm.

One charge of possession of cartridge ammunition.

One charge of possession of an explosive.

Two charges of possession of a tablet press.

2 Bail has been refused on one previous occasion by Magistrate Reardon on 24 June 2014.

3 A committal mention was listed (and has since been held) for 11 December 2014, together with the committal mention of the applicant's two co-accused who were arrested in September 2014.

4 Because the applicant is a person charged with offences contrary to ss 71 and 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (ie. the first two counts listed above), the court must refuse bail unless the applicant demonstrates there are exceptional circumstances which justify the grant of bail.[2]

5 In any event, the court shall refuse bail if satisfied there is an unacceptable risk that the accused if released on bail would:

(b) endanger the safety or welfare of members of the public.[3]

6 The applicant argues there are exceptional circumstances in his case constituted by a combination of factors, namely that:

(a) first, the Crown case is 'not overwhelming', he intends to plead not guilty and has an arguable defence;

(b) secondly, there will be substantial delay until the trial of the proceeding; and

(c) thirdly, he is ill from long standing substance abuse and a resulting condition of anxiety and depression, exacerbated by recent family circumstances, for which he would receive superior treatment out of prison than within.

7 To meet the Crown argument that he poses an unacceptable risk of reoffending and endangering the public, he contends that he has a stable place of residence, a surety available, a comprehensive drug treatment and counselling regime in place and, by reason of recent family events, the court can have much more confidence that he will not reoffend than in the past.

(b) there is a very strong Crown case against the applicant.

(c) there is an unacceptable risk that, if released on bail, the applicant will commit further offences and endanger the safety or welfare of the public.

9 Although I will consider each of the factors advanced for the applicant in respect of the claimed exceptional circumstances, as will appear, in my view the most prominent factor raised is that of delay.

10 A combination of factors and matters can give rise to 'exceptional circumstances'. In Re Kane,[4] Lasry J set out a number of principles, particularly applicable to this case, which I gratefully adopt:

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.[ ]55 Re Moloney, John Denis (Bail Application) (Unreported, Vincent J, 31 October 1990) 1, 2.

In Director of Public Prosecutions v Sabino Cozzi,[6] Coldrey J expressed agreement with the approach of Vincent J in Moloney and reviewed several of the cases which subsequently discussed the meaning of "exceptional circumstances". He noted:

An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.

His Honour went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred they included:

• the strength of the Crown case;
• the question of delay;
• strong family support;
• stable accommodation;
• availability of employment;
• low risk of flight or re-offending;
• lack of prior criminal history; and
• the personal situation of the applicant.

... it has long been held that it is the combination of circumstances that are of importance and that the combination must be assessed in each individual case. [7]

11 In Cabal v United Mexican States,[8] on an appeal from an order made by Kirby J granting bail under the Extradition Act 1988 (Cth), Gleeson CJ, McHugh and Gummow JJ held:

Delay will constitute special circumstances only when it is outside what could be regarded as the normal range for offences of the type and complexity the subject of the proceedings.[9]

12 In Re Dale,[10] the Victorian Court of Appeal considered whether a delay of more than 2 years from arrest to trial constituted 'exceptional circumstances' for the purposes of the Act. The Court (constituted by Maxwell P, Nettle JA and Lasry AJA) held:

Clearly, the delay involved in this case is very substantial, even if not unprecedented in a case of this complexity. What makes it much more significant, however, is that the conditions in which the appellant was imprisoned following his arrest in February have severely affected his mental health...[11]

All things considered, we were persuaded that the appellant had established exceptional circumstances. That conclusion was based on the combined effect of:

the anticipated delay in the matter coming on for trial,

the fact that his conditions of incarceration have caused him to suffer moderate to severe depression, which requires treatment; and

the potential loss of the family business.

It is unnecessary to express a concluded view on whether any of those matters on its own would amount to exceptional circumstances, as we were satisfied that in combination they did.[12]

13 In DPP (Cth) v Barbaro,[13] the Court of Appeal considered the significance of delay in respect of 'unacceptable risk of flight'. After quoting from Kellam J in Mokbel v Director of Public Prosecutions (No 3),[14] the Court (constituted by Maxwell P, Vincent and Kellam JJA) went on to say:

...as Kellam J pointed out in Mokbel v DPP (No 3), there will be circumstances where the actual or anticipated delay is of such a magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable. As Kellam J said, the community will not tolerate the indefinite detention of persons awaiting trial. Whether, and when, the delays in a particular case can be so characterised will depend on the circumstances. Suffice it to say that, as things stand at present, this is not such a case.[15]

14 Although the Court's comments on that issue are, perhaps, more directly relevant to the question whether the applicant poses an unacceptable risk, in my view they are also relevant when considering whether exceptional circumstances exist for granting bail.

15 Trial division judges of this court have held on numerous occasions that unreasonable or inordinate delay, whether operating on its own or with other factors, can constitute 'exceptional circumstances'.[16]

16 With these principles in mind, I turn to consider the factors advanced by the applicant.

17 The summary of Crown case as set out in the report prepared by the informant, Detective Senior Constable Phillip Wilkinson, includes the following allegations:

(a) methylamphetamine and equipment for the manufacture of drugs were located at residential premises [*redacted];

(b) clothing, personal documents and other items belonging to the applicant were found at the residential premises;

(c) enquiries revealed that the applicant personally lodged the application to rent the residential premises and paid the bond, and that he was named as the sole intended occupant;

(d) information found at the residential premises related to a Kennard's Storage unit at Huntingdale;

(e) contents of the storage unit included precursor chemicals and equipment for the manufacture of methylamphetamine, quantities of methylamphetamine and GBH, and a number of firearms and ammunition;

(f) the applicant was the hirer of the storage unit;

(g) on the day after the hiring of the storage unit began, and on several occasions over the following 6 months, CCTV footage showed the applicant (sometimes with others) moving items in and out of the storage unit;

(h) the applicant's fingerprints were found on items located both at the residential premises and at the storage unit.

(i) the analysis of chemical substances found at the residential premises and storage unit, current at the date of the hearing of this application on 11 November, revealed there were five 1-litre bottles said to contain 1 ,4-Butanediol (GBH), 3188 grams of 'substances containing what was alleged to be methylamphetamine' of which 401.6 grams was alleged to be pure methylamphetamine, another 29 grams of crystal methylamphetamine and 2 grams of heroin: as indicated in note [1] above, the trafficking in methylamphetamine count has now been escalated to one involving a large commercial quantity on the footing that the quantity alleged is 3188 grams.

18 The facts raised by the applicant said to undermine any argument that the Crown's case against him was strong, apart from the fact that he had made no admissions, were that there were also others named on the rental agreements for both the residential premises and the storage unit, fingerprints of the co-accused were also found on items at both premises, and CCTV footage also showed others accessing the storage unit. On their face, these matters do not strike me as exposing particularly serious flaws in the Crown case.

19 Accepting, of course, the present limitations on my capacity to make an assessment, and allowing for those limitations, on the summary of the evidence as currently presented, the case against the applicant can fairly be described as reasonably strong.

20 Mr Rodin is now 25 years of age (date of birth, 29 October 1989). As revealed in the material tendered on his behalf, he is one of two children of parents of Russian origin. His only sister died recently. His parents sent him to a number of private schools where he had the potential to be a good student but he was disruptive and expelled from a number of them. He ultimately left school at Year 10. As will become clear, he has a long history of juvenile and adult offending substantially associated with drug use.

21 A number of medical and psychological reports have been tendered on Mr Rodin's behalf.

22 Dr Boris Mezhov, a general practitioner, wrote a short letter on 22 June 2014 stating that he has known Mr Rodin for many years, and that Mr Rodin has suffered anxiety and depression for 'a long time'. Dr Mezhov expressed the view that these conditions 'beyond doubt' contributed to Mr Rodin's chemical dependence. He confirms that Mr Rodin's 31 year old sister, whom Mr Rodin adored, died of cancer in early June after she had suffered with that disease for approximately three years.

23 Mr Ian McKinnon, a forensic and consultant psychologist, attended Mr Rodin in prison on 19 September 2014. In a report to Mr Rodin's solicitor, Mr McKinnon describes Mr Rodin's reported:

... long history of substance abuse that dates back to his teenage years and has since included his use of alcohol, cannabis, MDMA, GHB, amphetamine, methylamphetamine, cocaine, heroin, etc. Mr Rodin reported that during the period 2008 to 2014, he had used Ice chronically and (in late 2013) he had started using heroin.

24 Mr McKinnon reported that, whilst in prison, Mr Rodin was being treated by prison medical staff with Avanza (for depression) and Tramadol (for his chronic pains). Summarising Mr Rodin's clinical condition, Mr McKinnon expressed the opinion:

Mr Rodin appeared to be suffering from symptoms that met the clinical criteria for a Depressed Mood Disorder and a Poly-Substance Abuse Disorder (recently entailing the use of Ice and heroin). Mr Rodin appears to have been suffering from these disorders for at least the last six years. At present, Mr Rodin appears to be in remission from his substance abuse disorder. However, he is presently in a contained environment and remains vulnerable to relapse upon his release from prison.

In my opinion, Mr Rodin does not possess an inherently anti-social or criminal character. However, his offending history suggests he has developed some anti-social tendencies (much of which appears to be associated with his substance abuse) and reduction of these tendencies will require sustained effort and commitment on Mr Rodin's behalf.

...

At the time I assessed him, Mr Rodin appeared deeply depressed - a combination of grief over his sister's recent passing and other long standing issues. Mr Rodin stated that he was hoping to be permitted to reside with his mother and support her during her time of immense grief. Mr Rodin also plans to assist his mother by working at her reception centre (where he has previously been employed).

...

In my opinion, at the time I assessed him Mr Rodin appeared likely to be able to cope satisfactorily with any bail conditions that might be set for him. Mr Rodin appeared genuine when he expressed his intention to not let his mother (or the court) down by non-compliance.

25 Mr McKinnon has very recently advised he would be prepared to continue seeing Mr Rodin on an ongoing basis to provide counselling and treatment in relation to his history of anxiety, depression and grief as a result of the loss of his sister. He would treat Mr Rodin on a fortnightly basis.

26 On 24 June 2014, after being remanded in custody, Mr Rodin was assessed for suitability for admission to the Court Integrated Services Program (CISP) conducted out of the Melbourne Magistrates' Court. The conditions for which the program appears to have been recommended are Mr Rodin's substance abuse, depression and chronic grief after his sister's death.

27 A CISP case manager has recommended him for level three intensive case management and that participation in the CISP program be made a condition of bail should it be granted.

28 The initial treatment and support plan arranged for Mr Rodin, should he be granted bail, is that:

• Mr Rodin will attend a further assessment in relation to substance abuse and/or alcohol issues with an accredited worker. Mr Rodin will be notified of a suitable appointment within five working days and following the assessment appropriate treatment will be arranged.
• Mr Rodin is to attend regular appointments with the CISP Case Manager for review of progress in treatment, support and follow up. A first appointment has been arranged for 27 June 2014 at 2.00 pm at the Melbourne Magistrates' Court. [Clearly he has not been able to be attend that appointment].
• Mr Rodin is to attend a CISP office immediately upon release for clarification of bail conditions and referral for any immediate aid need if required.

29 If bail were to be granted on condition that Mr Rodin participate in the CISP program, he would be allocated a CISP case manager to work closely with him on a weekly basis, required to attend regular appointments for review, assessed for substance abuse with an accredited drug counsellor (ie. at least by Mr Dieni, as described below), referred to a mental health service to work separately or in consultation with Mr McKinnon, and supervised by means of monthly progress reports submitted to the Magistrates' Court which administers the program

30 A further affidavit was filed in support of Mr Rodin's bail application after the committal hearing was held on 11 December 2014. I will mention some other matters arising from that committal mention in a moment, but in that affidavit Mr Theo Magazis, Mr Rodin's solicitor, exhibited a letter showing that Mr Rodin had been assessed by Anthony Dieni of St Paul's Drug Prevention, Rehabilitation & Aftercare Program on 4 December 2014. Mr Rodin was found suitable for that program. The court was informed that, if bail is granted on condition that he participate in that program, Mr Rodin would be required to attend Mr Dieni on Monday and Friday of each week, follow Mr Dieni's legal directions and give a urine sample for drug testing on demand, 'at random'. Mr Rodin has agreed to abide those conditions.

31 There was some uncertainty, upon the evidence and submissions at the oral hearing, about the question of when a committal and trial for Mr Rodin's charges might occur, and therefore the period he may be held in custody pending trial if bail is not granted. After the hearing, the Crown filed a further affidavit and further submissions (with the consent of the applicant) clarifying the position which appeared to be as follows:

• The committal and trial of Mr Rodin is intended, at least at present, to be held in conjunction with the committal and trial of the two co-accused.
• Due to the later arrest of the co-accused, the statement of analysis from the Victorian Forensic Science Laboratory (VFSL) of DNA and drug samples in relation to those co-accused will not be available for a period of '4-6 months' following the lodgement of the samples with VFSL.
• The latest date of lodgement with VFSL was 28 November 2014 meaning that the earliest date for the statements is 28 March 2015 and the latest date is 28 May 2015.
• At the committal mention for the three accused on 11 December 2014 a magistrate may either defer listing the committal until all VFSL statements are available, or list the matter for committal on a date that assumes the statements will be provided within the estimated time frames.
• On that basis, a committal could either be fixed in December 2014 for hearing in June 2015, or fixed at the end of May 2015 for likely hearing in September 2015: of those alternatives, the Crown asserted that the former would be more likely.
• On information provided by the County Court, the Crown predicted that a trial of four weeks for the three accused would likely be conducted in the County Court twelve months after the date of committal - ie. either June 2016 or September 2016.

32 From Mr Magazis' more recent affidavit, I now know that the committal hearing has in fact been fixed for 1 June 2015, for two days.

33 It follows, unless released on bail, Mr Rodin will be held in custody pending trial for at least 2 years, possibly more. In my view that prospect raises for serious consideration the question whether exceptional circumstances exist to justify releasing Mr Rodin on bail, constituted either by delay alone or in combination with his personal situation. It also raises for serious consideration the question whether, if exceptional circumstances exist, the period of delay is of such a magnitude that the risk he poses of reoffending or to the community (discussed below), which would otherwise be regarded as unacceptable, should properly be viewed as acceptable.

34 It is also worth noting that Mr Rodin's co-accused, William Cavanagh, was granted bail by Magistrate Reardon at the committal mention on 11 December 2014. One of the matters taken into account by his Honour in granting bail was the delay in the matter reaching trial.

35 In maintaining that Mr Rodin constitutes an unacceptable risk pursuant to s 4(2)(d)(i) of the Bail Act, the Crown relies upon the following:

(a) the nature of the offences with which Mr Rodin is charged are very serious;

(b) Mr Rodin has a lengthy criminal history dating back to 2005 which includes multiple drug convictions including trafficking drugs, affray and serious assault, armed robbery, burglary and thefts;

(c) he has an extensive history of substance abuse and drug dependency and in the past has failed to stay free from committing offences for more than a six month period of time;

(d) he has had access to drug counselling and rehabilitation in the past which has failed to stop him from offending;

(e) he has a network of associates who have multiple prior convictions for drug, firearm and violence related matters; and

(f) even though he has agreed to strict bail conditions, it is feared he will not be able to abide them, putting further stress and hardship on his mother.

36 Mr Rodin's substance abuse and drug dependency is not in dispute. Mr McKinnon frankly pointed out that although Mr Rodin currently appears to be in remission it is because he is in a contained environment. Self-evidently, with his history of substance abuse, Mr Rodin remains vulnerable to relapse upon release from prison. Mr McKinnon was of the view that any reduction of Mr Rodin's anti-social tendencies would require sustained effort and commitment on his behalf.

37 Mr Rodin submits that he does not constitute an unacceptable risk because he:

(a) has stable and static accommodation with his mother at [*redacted], and an employment opportunity in the family reception centre business;

(b) has strong ties to the jurisdiction with all family members living within it, is an Australian citizen and does not possess a current or valid passport;

(c) is able to provide a surety to the court in the amount of $200,000 in the form of property owned by his mother;

(d) does not have any prior convictions for failing to appear whilst on bail and has always attended court in answer to charges that he faced; and

(e) has available treatment and counselling for his poly-substance abuse disorder and his anxiety and depression.

38 Further, he is willing to abide conditions regarding residence, reporting, not contacting co-accused, evening curfew, and usual non-travel conditions.

39 The point made by the Crown about Mr Rodin's lengthy criminal history is well founded. Although just under half of his appearances were in the Children's Court, nevertheless he has 22 prior court appearances for offences of the nature as described above at [35(a)]. That history of offending demonstrates a tendency to violence, to traffick drugs of dependence, and to drive motor cars whilst disqualified or under the influence of drugs, all of which highlight a risk to the safety or welfare of members of the community if he is released

40 Further, there is no doubt in my mind that the apprehensions expressed by the Crown concerning Mr Rodin's capacity to rehabilitate himself from substance abuse, and his concomitant offending, are entirely reasonably based. It is true that the measures that are proposed on Mr Rodin's behalf for his attendance at the CISP program, his engagement of a rehabilitation counsellor, and adherence to other proposed bail conditions, may go some distance to ameliorating that risk.

41 Mr Dane, who appeared for Mr Rodin, presented an elaborate and somewhat emotive argument as to why the court can have greater confidence now than it might have had in the past that Mr Rodin will abide the bail conditions, commit himself to his own rehabilitation, and refrain from offending. That argument was founded upon the twin assertions that:

(a) Mr Rodin's mother has always been the principal authority figure in his life; and

(b) in the circumstances of Mr Rodin's sister's death, he will be more committed than ever to honouring his mother's wishes given that he is now her only remaining child, that she is in such need of support, and having the knowledge that any breach of bail would put his mother's home in jeopardy.

42 I am not much persuaded by the argument. The obvious question begged by those assertions is why, after 8 years of offending as a teenager and young adult, with parental authority having no apparent effect, is it likely that Mr Rodin will take notice of his mother's authority now? Without in any way intending to diminish the reality of his mother's agony, an argument that rests upon the trustworthiness of an emotional response to his mother's special need is a fragile one indeed.

43 It seems to me that the court's confidence, if at all, must be based upon a surer basis.

44 I put aside certain concerns the police raised that the applicant's failure to abide by conditions would put further stress and hardship on his mother who, herself, suffers from anxiety and depression and is struggling to run a business following the recent death of her daughter. A more recent affidavit filed on behalf of the applicant which confirms that Mr Rodin's mother supports his bail application, and it contains further information about her stress and need.

45 Aside from the question of unacceptable risk, in my opinion, there are exceptional circumstances that justify the grant of bail. Those circumstances comprise the combination of Mr Rodin's existing depressive illness and the additional impact on him of his sister's death and his mother's grief and need of him, together with, most significantly, the inordinate period of time he must remain on remand with those conditions.

46 But, the serious nature of the offending alleged, the relative strength of the crown case, Mr Rodin's very poor criminal history, and his drug-dependence which appears to be the mainspring for his offending, makes him, on the face of it, an unacceptable risk of both reoffending and to the safety and welfare of the community. Against that, again, the inordinate time he must spend in prison awaiting trial has to be carefully weighed: is the risk to the community of Mr Rodin being at large, subject to strict bail conditions, acceptable when compared to the alternative, being that a presumedinnocent person who is not regarded as a flight-risk is kept in prison for two years or more?

47 Weighing all these matters, and with some degree of reservation, I have ultimately concluded that Mr Rodin should be granted bail. The conditions which I will impose do, I believe, bring the risk to the community within an acceptable band, particularly in the face of the alternative that Mr Rodin would be kept in prison, unconvicted, for an unacceptable period of time. The conditions I will impose are that he:

(a) reside with his mother at [*redacted];

(b) surrender any passport held and not to apply for any other;

(c) is to provide a surety in the sum of $200,000;

(d) report to police daily to the officer in charge at Chelsea Police Station between the hours of 6:00 a.m. and 9:00 p.m.

(e) is not to attend any international points of departure;

(f) is not to leave the State of Victoria;

(g) be subjected to a curfew and not leave his place of residence between the hours of 9:00 p.m. and 6:00 a.m. except in the company of his mother, or for the purpose of attending or returning from work with his mother;

(h) is to present himself to police upon request at his home address between the hours of 9:00 p.m. and 6:00 a.m;

(i) is to undertake drug treatment with Mr. Anthony Dieni and to abide by all lawful direction of Mr. Anthony Dieni.

(j) is to provide all results of regular drug urine screens conducted by Mr. Anthony Dieni to the Informant upon 24 hours upon receipt of the results;

(k) is to undergo counselling and treatment with Mr. Ian Mackinnon and obey all lawful directions of Mr. Ian Mackinnon;

(l) is to report to the Court Integrated Services Program within 24 hours upon release for the purpose of assessment and integration into the Court Integrated Services Program.

[1] Originally Mr Rodin was charged with two counts of trafficking in a commercial quantity, but on 18 December the court was informed that the count in respect of trafficking in methylamphatamine had been replaced with a count of trafficking in a large commercial quantity: the alleged quantity of that drug now being 3.188kg.

[2] Bail Act 1977 s 4(2)(aa).

[3] Ibid s 4(2)(d)(i).

[4] Re Kane [2010] VSC 8.[ ]

[6] Director of Public Prosecutions v Sabino Cozzi [2005] VSC 195.

[7] [2006] VSC 86 [35].

[10] [2009] VSCA 212.

[13] [2009] VSCA 26; (2009) 20 VR 717 ('Barbaro').

[14] [2002] VSC 393; (2002) 133 A Crim R 141.

[15] Barbaro [2009] VSCA 26; (2009) 20 VR 717 [41] [Citations omitted].

[16] Woods v DPP [2014] VSC 1 [39] (Bell J); Re Foxwell [2013] VSC 716 [9] (Dixon J); Re Creamer [2009] VSC 460 [27] (Whelan J), R v Cox [2003] VSC 245, [15]-[20] (Redlich J).