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[2021] VSC 620
General information, not legal advice.
Supreme Court of Victoria
2021-09-23
BEALE J
Original judgment source is linked above.
BAIL APPLICATION - Two counts of trafficking in a large commercial quantity of a drug of dependence - Whether exceptional circumstances - Whether unacceptable risk of flight and further offending - Re Trinh [2021] VSC 356 - Bail Act 1977 (Vic) ss 4AA, 4A, 4D, 4E; Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71.
1 George Kamvissis, the applicant for bail, is charged with two counts of trafficking in a large commercial quantity of drugs, namely cocaine and methylamphetamine.
3 The alleged offending occurred between January and June 2021. Much of the evidence against the applicant, and multiple co-accused, consists of messages sent by them on an application called ANØM which they thought to be secure. In fact it was an application that had been created by the AFP and the FBI for the purpose of intercepting such messages. Furthermore, each time messages were sent on the ANØM application, it generated GPS data, enabling the police to identify the location of the person sending the message. Such data enabled investigators to pinpoint the applicant's home in Niddrie as the location where many relevant messages originated.
4 The applicant relied on a combination of factors to establish exceptional circumstances. These were:
5 In my view the most significant of these circumstances is the likely delay from arrest till trial.
6 The applicant was arrested on 7 June 2021. Multiple co-accused were also arrested around that time.
7 At the remand/filing hearing, service of the hand-up brief was ordered to occur by 20 July 2021 and the matter was listed for a committal mention on 31 August 2021.
8 On 20 July 2021, the Office of Public Prosecutions made an application to extend the date for service of the hand-up brief and to set another date for the committal mention. The application was granted, and the hand-up brief is now due for service by 30 November 2021 and the matter is listed for a special mention on 14 December 2021.
9 Although not all the co-accused will be participating in the applicant's contested committal, there will be several co-accused participating and the applicant's counsel indicated to me that she expected the contested committal to take two to three weeks. The respondent did not cavil with that estimate.
10 I was informed by the respondent that the learned magistrate indicated at a recent mention that his Honour hopes to be ready to hear a contested committal in "February March or April next year".[3] On the strength of those comments, the respondent opined that the contested committal was likely to be conducted in the first half of next year.
11 Whilst the magistrate might be ready to hold a committal hearing by that time, I agree with the applicant's counsel that it is unlikely that the parties will be ready to proceed by then. I note that the original timetable for disclosure of the hand-up brief proved unduly optimistic and was put back by four months. The respondent's novel reliance on the ANØM application can reasonably be expected to generate a range of preliminary legal issues, including public interest immunity issues. The various defence teams will no doubt engage their own IT experts to critique the claims made by the respondent's IT experts and this can be expected to drag things out.
12 It seems to me unlikely that a contested committal hearing will take place prior to mid-2022.
13 Given the delays in the County Court caused by the pandemic and government lockdowns, I consider it unlikely that the trial will be held before 2024. A delay from arrest to trial in the order of three years is very much on the cards.
14 I consider such a delay in and of itself to constitute exceptional circumstances justifying a grant of bail. I refer to (but will not repeat) what I said in Re Trinh[4] regarding delays of such magnitude.
15 I turn then to the question of unacceptable risk. The respondent alleges that the applicant is an unacceptable risk of flight and further offending.
16 As mentioned, the applicant is facing two charges of trafficking in a large commercial quantity of drugs. Under s 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic), the maximum penalty for such an offence is life imprisonment. It is alleged that the applicant was a major player in the drug trafficking ring. If convicted he faces a very lengthy sentence of imprisonment.
17 Understandably, it was not submitted by the applicant that the respondent's case is a weak one. Rather it was described as "not an overwhelming one".[5] Whilst my ability to assess the strength of the respondent's case is obviously limited, the following response by the respondent strikes me as plausible:
The respondent disputes the characterization of the Crown case as outlined within the Applicant's affidavit as 'not an overwhelming one'. The [ANØM] application was designed and marketed for use by persons who were under the mistaken belief that it was an encrypted device and therefore incapable of being intercepted by police. As a consequence of this, the usual codes and care taken by persons when communicating with associates regarding drug trafficking were not taken. This is evidenced by photographs being sent as contained within the Informant's report.
Attribution of the Applicant to the relevant device is strong. The Applicant spoke to associates regarding where he lives, his children's ages and being subject to a firearm prohibition order. These matters are consistent with the personal matters relevant to the Applicant.
Furthermore, the device utilised by the Applicant had GPS capabilities. The informant has provided a map which shows locations utilised by the device. The map shows that the device used by the Applicant mapped at the Applicant's home address on numerous occasions.[6]
18 In my view, the combination of the seriousness of the charges and the strength of the respondent's case provides the applicant with a powerful incentive to flee the jurisdiction.
19 Whilst it is more difficult to flee the country under present circumstances, it would not be impossible if one could utilise the services of an international criminal organisation.
20 The Informant alleges that the applicant is a member of the Comanchero Outlaw Motorcycle Gang.
The accused is a high ranking long term member of the Comanchero OMCG, having been a patched member since at least September, 2012. He has at times held the position of Treasurer.[7]
21 The applicant disputes that he is a current member of the Comancheros but there is no dispute that he was a member of the Comancheros as recently as 2017.
22 In a letter dated 18 August 2021, the applicant's de facto Jacqueline Godoi said this, referring to the applicant's incarceration in 2017, also for trafficking and related offences:
I was very shocked when George was arrested. Up until this point I wasn't aware of this aspect of George's past or of what he was involved in. I struggled to come to terms with what had happened as I had never been remotely involved in anything like that before. I struggled to decide what I should do; if I should stay with George or not. I decided I should talk to him before I made any decisions as I felt so strongly connected to him. The first visit I had with him in prison, I told him that I loved him and I would like to have a life with him after he was released but only if he completely ended all connections with the motorcycle club. He promised that he no longer wanted to be involved with the club but instead wanted a life with me.[8]
23 The respondent also relies on an intercepted conversation of 14 April 2021, allegedly involving the applicant. The Informant's report says this:
In a conversation captured over the ANØM Application the accused told Eren KAYA that he still speaks with "M", commonly used term for Comanchero OMCG National President, Michael MURRAY, over the encrypted application CIPHR, stating "Just caught up with him once though too parqnpid"(sic). KAYA asked whether MURRAY still gets the accused to do "missions?", the accused replied "Yea" "But I just say no."[9]
24 The applicant submits that this conversation is consistent with the applicant having ceased his membership of the Comancheros in order to consolidate his relationship with his partner and two young children. If he were a current member he would not be saying "No" to missions offered by the Comancheros national president.
25 Whether or not the applicant is a current member of the Comancheros, the fact that there is evidence that he continues to be offered missions by the national president is troubling.
26 It was not claimed by the applicant that he was expelled by the Comancheros or has ever been on bad terms with them since he completed a 12-month jail sentence imposed in mid-2017 for trafficking and other offences.
27 The evidence indicates that he remains on good terms with the Comancheros and I consider that there is a significant risk that that organisation could help him with obtaining false passports and fleeing the jurisdiction.
28 I note too that the applicant has extensive criminal convictions dating back to 2009, including:
29 It is true that the applicant's most recent criminal conviction was in 2017 but it is the history of breaches of court orders which I consider of greater significance in the present context.
30 The applicant's parents, who are the proposed sureties, are willing to put up all their equity in a number of properties, an amount of approximately $1.4 million. It is evident from their affidavits that they are close to their son, his partner and their two young children.
31 It was submitted that were the applicant to flee in breach of his bail, it would wipe out his parents financially at a time when they are approaching retirement. I accept that the applicant is close to his parents and would not want to cause them such hardship - which the applicant's counsel described as "catastrophic" - but if he were to be convicted of two offences of trafficking in a large commercial quantity of drugs, the consequences for him could also be described as catastrophic. The applicant's motive to flee the jurisdiction is a powerful one. In my view, the risk of that happening is not rendered acceptable by the sureties on offer.
32 In the material in support of the bail application, much was made of the hardship being experienced by the applicant's children. The applicant and his partner have two children, a girl aged 2 and a boy aged 1. Their mother has engaged the services of a clinical psychologist Dr Lisa da Silva to help them. Whilst I do not doubt that the arrest and incarceration of their father has been traumatic for the children, I note the following remarks in Dr da Silva's addendum report dated 16 September 2021:
Whilst it is impossible to determine risk with certainty, it is my opinion that the risk of lifelong impacts of trauma in the circumstances is minimal. It is my opinion that the children are generally quite resilient, and with appropriate treatment and support can effectively recover from trauma.
33 The children have a mother who appears to be very concerned for their wellbeing. She has appropriately sought professional assistance for them. The applicant's parents are very supportive of her and their grandchildren. The grandmother attends their home for several hours each day. In short, the children appear to have substantial familial support.
34 In conclusion, I am persuaded that there is an unacceptable risk of flight if the applicant is released on bail and accordingly his application is refused. It is unnecessary for me to determine whether he is also an unacceptable risk of further offending but if he were to utilise the services of the Comancheros to flee, the Comancheros would no doubt expect something of him in return.
[1] Bail Act 1977 (Vic) ss 4AA, 4A.
[2] See Bail Act 1977 (Vic) ss 4D, 4E.
[4] [2021] VSC 356, [12]-[16].
[5] Applicant's written submissions, 17 September 2021.
[6] Respondent's affidavit in opposition to bail, 15 September 2021, [47]-[49].
[7] Respondent's affidavit in response, 15 September 2021.
[8] Applicant's affidavit in support of bail application, Exhibit ST3.
[9] Respondent's affidavit in response, 15 September 2021, Exhibit VM-1.