Re McCann [2020] VSC 138 (25 March 2020)

1 This is an application for bail by Adam McCann (the 'applicant').

2 This is the second application of this kind that has come before me since the outbreak of COVID-19. In the previous application, Re Broes [2020] VSC 128 ('Broes'), I made some observations about the effect of the current COVID-19 pandemic on applications for bail. I propose to go through that process again to some degree.

3 On 29 January 2019, Detective Senior Constable Perruchio charged the applicant with:

• trafficking a drug of dependence;
• trafficking in methylamphetamine (two counts);
• trafficking in 3,4-methylenedioxy-methamphetamine ('MDMA') (two counts);
• trafficking in a commercial quantity of methamphetamine (two counts);
• possessing 3,4-Methylene​dioxy​amphetamine ('MDA');
• possessing psilocin and/or psilocybin; and
• possessing a firearm as a prohibited person.

4 As the applicant is accused of committing Schedule 1 offences under the Bail Act 1977 (Vic) ('the Act'), namely, trafficking in a commercial quantity of a drug of dependence, it is common ground between the parties that bail must be refused unless the Court is satisfied that exceptional circumstances exist that justify the grant of bail.

5 The applicant has been on remand since his arrest on 29 January 2018, which means, as at the hearing of this application, he has been in custody for 787 days.

6 The applicant was originally due to stand trial in April 2019, but the matter was adjourned for a plea as a resolution had apparently been reached. It was later confirmed in May 2019 that the matter would again proceed to trial. That trial was listed in the County Court of Victoria on 4 May 2020. However, due to the present state of emergency caused by COVID-19, all trials are suspended indefinitely, and the already unacceptable delay in this case will increase dramatically.

7 The applicant has applied for bail twice previously from the County Court and been refused - first on 4 December 2018 and again on 25 February 2020. The first application was refused as the applicant had failed to show exceptional circumstances. By the time of his second application, it was accepted that exceptional circumstances existed, primarily due to the delay of his trial. Bail was still refused because, in the opinion of Judge Gamble, the applicant posed an unacceptable risk of committing an offence whilst on bail.

8 I have read the ruling by Judge Gamble in McCann v DPP (County Court of Victoria, 25 February 2020) ('McCann v DPP') and agree with it to the extent that it refers to exceptional circumstances.[1] His Honour's considerations, of course, are now further exacerbated by the effect of COVID-19 in the community, and his reasoning on the test of exceptional circumstances is all the more valid.

9 It is the prosecution case that from 7 September to 5 December 2017, the applicant sold methylamphetamine to a covert police officer on eight occasions, for which he was paid a sum in excess of $50,000. The first five transactions are alleged to have each involved the sale of approximately 3.5 g of methylamphetamine. The amounts increased over time with two of the later transactions weighing approximately 56 g each.

10 The final transaction involved the sale of 168.6 g of methylamphetamine, including 118.02 g of pure methylamphetamine that the applicant allegedly facilitated through his supplier. The applicant is also alleged to have twice supplied a small amount of the drug MDMA to the covert police officer.

11 On the day of his arrest, 29 January 2018, police searched the applicant's home that he shared with the co-accused, Tayla Moore. Police seized 154 g of methylamphetamine (124 g of which was pure methylamphetamine), 2 oz of MDMA as well as small amounts of MDA and psilocybin. In addition, police located a loaded sawn-off shotgun and $15,000 cash.

12 When the applicant was interviewed following his arrest, he relied on his right to make no comment in relation to the transactions with the covert police officer and the illicit drugs found during the search of his residence. As I understand it, he allegedly admitted to owning the firearm and the cash as well as the safe that contain large quantities of the illicit drugs seized from his house.

13 The co-accused, Ms Moore, pleaded guilty in the County Court to one count of trafficking methylamphetamine. The basis of that charge being that she was present during two of the transactions between the applicant and covert police officer and provided assistance to the applicant by counting money from those transactions.

14 On 6 December 2018, she was sentenced to a term of 176 days' imprisonment, which was the period of time she had already served in pre-trial custody, and was also placed on a 12-month community corrections order.[2]

15 Mr McCann is 27 years old. He attended school until Year 10 and then went on to complete a pre-apprenticeship in electrical engineering. He has a very limited employment history.

16 He has a supportive relationship with his mother, Mona McCann, and his two brothers. If granted bail, he proposed to reside with his mother at her home located at [redacted], Narre Warren.

17 Around the age of six, he was diagnosed with attention deficit hyperactivity disorder ('ADHD'). He was then medicated with two forms of Ritalin until 18 years of age, but ceased his medication after that time because he was no longer seeing a paediatrician.

18 He has struggled with substance use since his teens; starting with cannabis before self-medicating his ADHD with methylamphetamine. He continued to use methylamphetamine until five months prior to his arrest for this alleged offending. He was recommenced on medication for his ADHD in March 2017, but has not received this treatment whilst on remand. As will later be seen, it is proposed that further treatment and the administration of a different drug to treat his ADHD will be provided in the event that he is granted bail.

19 The applicant has a criminal history dating back to 2014, including convictions for making threats to kill and assault as well as offences related to property, driving, dishonesty, weapons, and drugs. He has one conviction for trafficking amphetamine in 2016, and another conviction for trafficking in a drug of dependence in 2014. The applicant's record also indicates poor compliance with court orders as he has three convictions for breaching a Community Correction Order in 2014, 2015 and 2016; one conviction for contravening a family violence intervention order in 2015; and multiple bail offences. These include committing an indictable offence whilst on bail in 2016 and 2014, one count of contravening a conduct condition of bail in 2014, and four counts of failing to answer bail in 2014.

20 It is conceded by the applicant that the allegations against him are very serious and are accompanied by a significant prior criminal history. In the ordinary course of events, those factors might very well have led to an outcome where the applicant's application for bail might have been refused.

21 As noted above, the applicant is charged with Schedule 1 offences under the Act, namely two counts of trafficking in a commercial quantity of a drug of dependence, and I must refuse bail unless satisfied that the exceptional circumstances exist that justify the grant of bail.[3] The applicant bears the burden of demonstrating the existence of those exceptional circumstances.[4] In determining whether exceptional circumstances exist, the Court must have regard to the surrounding circumstances as set out in s 3AAA of the Act.[5]

22 In order for the circumstances 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'.[6] Notwithstanding that the threshold of exceptional circumstances is high, it is not an impossible standard to reach.[7] It is clear that exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[8]

23 In addition to those matters, relevant to the applicant's particular circumstances, this Court has previously considered that the availability of outpatient drug treatment may not in itself amount to exceptional circumstances, but may be of some weight in determining whether exceptional circumstances exist in combination with other factors, including delay, and whether the applicant has some special vulnerability.[9]

24 Even if I am satisfied as to the existence of exceptional circumstances, pursuant to ss 4D and 4E of the Act, I must consider if I am satisfied by the respondent that there is an unacceptable risk that, if released on bail, the applicant would:

(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.

25 In determining whether any risk is 'unacceptable', the Court is again obliged to take into account the surrounding circumstances set out in s 3AAA of the Act, together with a consideration of whether any conditions of bail may be imposed to mitigate the risk so that it is no longer unacceptable.[10]

26 Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act, which provides as follows:

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

(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.

27 The applicant's submissions in support of this application for bail have been refined somewhat since the original application was filed.

28 In relation to the issue of exceptional circumstances, the applicant relied primarily on the fact that he has been in custody since 29 January 2018, and he would not be likely to be sentenced to any further imprisonment if he were found guilty on the trafficking simpliciter charges. That is a very lengthy period of remand and as previously stated, Judge Gamble in the County Court concluded that the delay the applicant experienced was exceptional.

29 The applicant also submitted that he intends to contest the two commercial drug trafficking charges. An affidavit filed in support of the application by his solicitor asserted weaknesses in the prosecution case and indicated that he would argue that certain key evidence in the case against him was improperly obtained and should therefore be excluded.

30 It is noted in the submissions in support of the application that the applicant has no previous convictions for trafficking in a commercial quantity of any drug. I am not sure that that avails him greatly.

31 It is put that his past offending occurred in the context of his ongoing drug use and a lack of treatment for his ADHD. It was also submitted that the applicant's ADHD is a significant health issue that is not being treated in custody. The evidence indicated that treatment has been organised in the community for his ADHD from psychiatrist Dr Luis Riebl at the Millswyn Clinic.

32 Additionally, he has completed some drug treatment courses whilst in custody and, if granted bail, will receive ongoing treatment for his substance use issues from Ms Amanda Brown, a senior clinician at Lamberti Associates. If the applicant were released on bail, an appointment has already been scheduled with Ms Brown for 4 pm on 26 March 2020, with a further appointment with Dr Riebl at 11 am on 27 March 2020.

33 Ms Brown gave evidence at the hearing of the application and also provided a report dated 17 February 2020, which was exhibited to the affidavit in support. She went into some detail about the program proposed for the applicant, including weekly one-on-one counselling, bi-weekly supervised drug screens, and treatment from Dr Riebl. She also advised that the applicant would likely commence a new drug for treatment of his ADHD, called Vyvanse, which she indicated may be more effective than other ADHD medications, such as Ritalin. Ms Brown gave an undertaking that, in the event of non-compliance with any conditions of bail or unsatisfactory drugs screens, that information will be conveyed to the informant forthwith.

34 Reliance was also placed on the availability of a surety, stable accommodation and supervision in the community provided by his mother. In addition to Ms McCann's sworn affidavit from 5 March 2020, she gave evidence during the hearing of this application. Among other things, she undertook to provide a significant surety of $300,000 by way of the equity in her property at [redacted], Narre Warren. She expressed a willingness to support her son and gave an undertaking to this Court to ensure his compliance with the conditions of bail and report any breaches.

35 The respondent originally opposed bail on the grounds that the applicant had not demonstrated exceptional circumstances and that he posed an unacceptable risk were he to be released on bail. However, in light of the present circumstances of the COVID-19 pandemic, the respondent's position changed dramatically.

36 Mr Albert, on behalf of the respondent, effectively conducted this application on the basis that he simply wished to establish that those who had indicated a willingness to support the applicant and be involved in his treatment and supervision were prepared to give binding undertakings to the Court. Both Ms Brown and the mother of the applicant have given such undertakings.

37 Accordingly, a list of what were described as agreed bail conditions was provided to the Court, which I will refer to shortly.

38 In order to confront the public health emergency of COVID-19, the normal operations of all levels of Victoria's courts have been substantially delayed and interfered with. Trials and committals have been postponed indefinitely. The prospect of cases, such as Mr McCann's trial, being heard within a reasonable time are very low indeed. The effect of that delay is achieving significance in applications of this kind.

39 Further to the conclusion reached by Judge Gamble in McCann v DPP, I am also well-satisfied that exceptional circumstances are established by virtue both of the delay that has already occurred and will continue in this matter. There is no prospect of a trial in May of this year as a result of the present pandemic and, in all likelihood, little prospect of a trial this year at all. Should the applicant's trial begin in February 2021, it would result in a period of pre-trial custody of more than three years. Consistently with my first ruling in relation to COVID-19 in Broes, this is a delay that well and truly establishes the existence of exceptional circumstances.

40 I will again speculate on what might occur once the virus spreads into the prison system as it is a matter that I need to keep firmly in mind when considering these circumstances. Once that occurs, as I said in Broes, it is overwhelmingly likely that the prisons will be locked down in a way that will make time in custody very difficult for all prisoners. In my opinion, it is going to be necessary to recalibrate the status of those in custody to determine who should be retained in custody and whether any others should be released. That will of course be a matter for the Department of Corrections and the Victorian Government.

41 Another consequence of this delay on this applicant in particular is that he is not receiving medication for his ADHD whilst in custody. I note the observations made by Croucher J in Bchinnati v DPP (Vic) (No 2) [2017] VSC 620 about the increased hardship on applicants who are subject to lengthy delays and left untreated. In that matter, Croucher J granted bail to the applicant after a second application, finding that exceptional circumstances existed, partially due to the significant impact delay had on the applicant's mental health.[11] Relevantly, his Honour said:

'As a result of the evidence placed before me on this application, I am now satisfied that the two year period of delay is of more significance. In particular, in light of the absence of treatment with medication of his ADHD, Mr Bchinnati's time on remand has been and is likely to continue to be more burdensome than I had anticipated'.[12]

42 As to the unacceptable risk, there are a number of matters relied upon by the respondent - which are also apparent from the applicant's criminal history - and I have taken all those matters into account. I have also considered the surrounding circumstances, including the matters referred to in s 3AAA(1)(h) of the Act regarding the special vulnerability of the accused and ill health. I am inclined to consider that the imposition of strict bail conditions on the applicant can make the risk acceptable.

43 I am satisfied, particularly given the fair position taken by Mr Albert on behalf of the respondent, that the list of agreed bail conditions that I received will ameliorate the risks that are obvious in releasing the applicant.

44 I propose that the applicant be released on bail on his own undertaking with one surety in the amount of $300,000, and with the following conditions:

1. The applicant is to reside at [redacted], Narre Warren, in the State of Victoria ('place of residence');

2. The applicant is not to be absent from his place of residence unless in the immediate presence of his mother, Ms Mona McCann, and only when:

a) attending scheduled medical, psychological or psychiatric appointments;

b) attending a scheduled appearance at the County or Supreme Court,

c) attending at the Narre Warren police station for the purposes of reporting;

d) attending at Centrelink;

a) attending at a healthcare facility to obtain emergency medical treatment; or

e) traveling directly to, or returning directly from, any of those locations.

3. The applicant is to present himself at the front door of his place of residence upon the reasonable request of a member of Victoria Police;

4. The applicant is to report to the officer in charge, or their nominee, at the Narre Warren Police Station every Monday, Wednesday and Friday between the hours of 6 am and 9 pm, subject to a government-imposed lock down, in which case a member of Victoria Police will attend the applicant's place of residence to effect the reporting conditions;

5. The applicant is to attend for testing, treatment and counselling as directed by and follow the lawful directions of:

a) Amanda Brown of Lamberti Associates, or her nominee; and

b) Dr Luis Riebl, or his nominee.

6. The applicant is to provide a copy of all drug screening tests to the informant with 48 hours of receipt;

7. The applicant is not to possess or use a drug of dependence within the meaning of Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;

8. The applicant is not to possess or use more than one mobile phone.

9. The applicant is to:

a) provide the informant with:

i. the phone number, IEMI number and any password or PIN of that phone within 24 hours of first having access to that phone; and

ii. any change of password or PIN of the phone within 24 hours of that change.

b) produce the phone for inspection upon the request of any member of Victoria Police; and

c) provide any password or PIN for the phone upon request of any member of Victoria Police.

10. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant;

11. The applicant is not to contact or associate with, either directly or indirectly, the co-accused, Tayla Moore; and

12. The applicant is to surrender any passports or other travel documents to the informant within 24 hours of release and not apply for others; and

13. The applicant is not to leave the state of Victoria;

14. The applicant is not to attend any points of international departure;

15. The applicant is to provide a copy of these bail conditions to his mother, Amanda Brown and Dr Luis Riebl within six hours of his release; and

16. The applicant is to appear at Melbourne County Court on 21 April 2020, and thereafter as directed by that Court.

[1] McCann v DPP (County Court of Victoria, Judge Gamble, 25 February 2020) [58]-[61].

[2] DPP v Moore (County Court of Victoria, Judge Quin, 6 December 2018).

[3] Bail Act 1977 (Vic) s 4A(1A) ('Bail Act').

[4] Ibid s 4A(2).

[5] Ibid s 4A(3).

[6] See, eg, Re CT [2018] VSC 559 [64] citing Re Sam [2017] VSC 91 [22].

[7] See, eg, Armstrong v R [2013] VSC 111 citing _Re Application for Bail by Moloney (_Supreme Court of Victoria, Vincent J, 31 October 1990).

[8] Ibid. See also Re Brown [2019] VSC 751.

[9] See, eg, Re Logan [2019] VSC 134; Re Aucello [2019] VSC 252.

[10] Bail Act s 4E(3).

[11] In Bchinnati v Director of Public Prosecutions (Vic) [2016] VSC 815, Croucher J denied the first application for bail, concluding that whilst it may be 'troubling' for an individual to not receive ADHD medication in custody, it did not amount to an exceptional circumstance.

[12] Bchinnati v DPP (Vic) (No 2) [2017] VSC 620 [56] (emphasis added).