Re Moustafa (Bail Application) [2025] VSC 638 | Case summary

Supreme Court of Victoria|2025-10-10|Before: Beale J

The applicant called two witnesses at his bail hearing.
The first witness was Michael Sgro, program co-ordinator of Southbay Private Rehabilitation Clinic, a 12-bed facility in St Kilda. He testified that the applicant had been assessed as suitable for their intensive residential drug rehabilitation program, which usually runs for 90 days. He undertook to notify the Informant if the applicant breached his bail conditions.
The second witness was Rebecca Georges, the applicant's partner. She is prepared to put up a bail guarantee in the amount of $100,000. She also undertook to notify the Informant if the applicant breached his bail conditions.
The Informant Detective Senior Constable Lechmere also gave evidence. He was called by the respondent at the request of the applicant. It was put to him by the applicant that a comparison of data from the electronic bracelet that the applicant was required to wear whilst on parole (bracelet data) and data from Automatic Number Plate Recognition (ANPR data) and traffic cameras indicated that on a number of occasions in 2024 the van was being driven by someone other than the applicant. Save in relation to 7 March 2024, the Informant agreed. The Informant also agreed that, currently, he is not in possession of any data which indicates the applicant was driving the vehicle between 29 April and 17 June 2024. He said he had not sought such data for that period. The Informant also agreed that a download of the applicant's phones which were seized by police did not yield any evidence of drug trafficking by him.
The applicant also relied on a psychological report by Dr Mathew Staios dated 14 September 2025. Dr Staios diagnosed the applicant with a persistent depressive disorder and a generalised anxiety disorder. The report also included the following information:

Mr Moustafa reported first coming into contact with cocaine at the age of 17 and transitioning to daily use by 18, consuming approximately one gram per day. During this period, he stated that he began using methamphetamine, which quickly developed into a significant and ongoing addiction. He reported that his methamphetamine use persisted throughout his periods of incarceration, including access to both illicit substances and substitute drug therapies while in custody. Following his most recent release from custody, he acknowledged continuing to use both methamphetamine and cocaine. Although he underwent detoxification programs while in prison, he has not engaged with formal drug treatment providers in the community.[9]

Dr Staios also said that the applicant has the following disorder:

Stimulant Use Disorder (Severe), Cocaine and Methamphetamine, onset in adolescence with escalation to daily use, ongoing dependence during and after incarceration, and continued use despite significant social, occupational and legal consequences.[10]

Dr Staios assessed the applicant as a moderate risk of re-offending. I have difficulties accepting that assessment given the severity and longevity of the applicant's drug offending history.

The applicant relied on several matters in combination as constituting exceptional circumstances which justified a grant of bail. He also submitted that these matters reduced the risk of releasing the applicant on bail to an acceptable level, noting that it was for the respondent to establish unacceptable risk if the applicant established exceptional circumstances. I will address these in turn.

First, placement in a residential drug rehabilitation facility is available. Such placement would be a constructive use of the applicant's time prior to trial. The program coordinator has given an undertaking to the court to notify the Informant if there is a breach of bail.

Second, the applicant has a large, supportive family,[11] several of whom attended court for his bail application.

Third, there is a bail guarantor - the applicant's partner - who is willing to put up a guarantee of $100,000. She gave an undertaking to the court to notify the Informant if there is a breach of bail.

Fourth, the applicant submitted he has strong ties to this jurisdiction in the form of his family and his partner, Ms Georges (the potential bail guarantor). The applicant noted that it has not been alleged by the prosecution that he is a risk of fleeing the jurisdiction if granted bail.

Fifth, the applicant submitted that the prosecution case has 'considerable difficulties' in tying the applicant to the items found in the van, which are the subject of the main charges. The evidence both at committal and on the bail hearing indicates that the applicant was not exclusively using the van during the relevant period. There is no evidence of him driving the van between 30 April and 17 June 2024. At committal, the Informant conceded that there is no evidence as to when and by whom the items were placed in the van and no evidence that the applicant had access to the van on 17 June 2024 as no key for the van was found by police on 17 June 2024. The applicant did not make any admissions in relation to items found in the van. Downloads of his phone did not yield any evidence of drug trafficking. The applicant submitted that the presence of his DNA inside the glove found in the rear of the van is neutral because it is not disputed that prior to 30 April 2024, he used the van on occasion and the glove was not necessarily used for drug trafficking.

Sixth, the applicant submitted it was in the public interest for him to undergo a residential drug rehabilitation program. The applicant relied on DD [2022] VSC 176,[12] a bail decision of Dixon J in respect of an accused charged with trafficking in a commercial quantity of methylamphetamine. Dixon J found exceptional circumstances and granted bail to DD, allowing him to undergo a non-residential drug rehabilitation program to address his long-term drug addiction. The applicant highlighted paragraph [43] of DD where Dixon J remarked:

Allowing the applicant to enter bail whilst he awaits his trial, with conditions requiring him to seek treatment for drug addiction and undergo strict monitoring will ultimately serve the public good as it will allow the applicant to commence rehabilitation in the community at a time in his life when he is strongly motivated to do so.

The applicant also relied on Robinson [2015] VSCA 161, a bail decision of the Court of Appeal in respect of an accused charged with, inter alia, trafficking simpliciter. The Court of Appeal granted bail, allowing the accused to participate in a 12-month residential drug rehabilitation program to address his long-term drug addiction, saying at [50]:

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person's freedom of movement and association but - on the positive side - it means that the pre-trial period can be used constructively to tackle the person's drug addiction. In this case, as in so many others like it, [Robinson's] drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to [Robinson] if he remained in custody.

Seventh, the applicant submitted that there has been a substantial delay between the applicant's arrest on 17 June 2024 and trial, which is scheduled to commence on 27 April 2026, whilst acknowledging that during that period he has been undergoing sentence as a result of the cancellation of his parole.

Eighth, the applicant submitted that if he was acquitted on the charges relating to the contents of the van, time spent on remand would exceed any sentence of imprisonment imposed on the remaining charges that relate to what was found inside the house. The applicant relied on what Hollingworth J said in Cao [2015] VSC 198 at [18]:

It is also well-established that if the time spent on remand is likely to exceed the total effective sentence which would be imposed if the applicant was convicted, that may also be relevant to establishing exceptional circumstances;

Ninth, once the applicant has completed the residential drug rehabilitation program, which normally runs for 90 days, he can resume employment with E & S Trading (a business owned by Bilal Ersay) for whom he was working as a delivery driver whilst on parole.

Tenth, the applicant submitted that his overall bail history is a good one. He has had a number of sentencing hearings between 2006 and 2018 but only has one bail-related prior, namely, a failing to appear, for which he was convicted and fined on 8 September 2016 at Broadmeadows Magistrates' Court.

Eleventh, the applicant submitted that he is a vulnerable prisoner because of his depressive and anxiety disorders, which are referred to in the psychological report of Dr Mathew Staios.

Twelfth, the applicant submitted he is also at risk in prison because he previously gave evidence against an offender who is currently serving a lengthy sentence.[13]

Thirteenth, the applicant submitted that he would only be released on bail if he was granted parole. Consequently, he would be subject to both bail and parole conditions. His previous release on parole involved electronic monitoring and might do so again,[14] further minimising the risk of the applicant breaching his bail conditions.

14. Strict bail conditions, including judicial monitoring

Fourteenth, the applicant indicated he is willing to abide by strict bail conditions, including a curfew.
The applicant submitted that bail could be granted subject to judicial monitoring. It was implied that the knowledge that the applicant will have to return to the Supreme Court regularly for a review of his progress on bail will serve as an additional motivation for the applicant to comply with all bail conditions. It would also enable the court to ensure that the conditions of bail and the conditions of parole are compatible.

Fifteenth, the applicant submitted that, save for illicit drug use, the applicant was compliant with his parole conditions.

Turning to my analysis, I will first refer in turn to the combination of circumstances relied upon by the applicant to establish exceptional circumstances.

First, the residential drug rehabilitation program on offer usually runs for 90 days. I accept the evidence of Michael Sgro, the program director, that it is a suitable program for the applicant and that Mr Sgro will notify the Informant as soon as practicable if the applicant were to breach bail. The respondent did not suggest otherwise.

Second, I have no reason to doubt that the applicant enjoys the support of members of his large family but, notwithstanding that support, he has amassed a significant criminal history, including multiple priors for trafficking drugs. On 7 December 2018, following a Crown appeal against sentence, he received a total effective sentence of 9 years' imprisonment with a non-parole period of 6 years for offences, including trafficking in a large commercial quantity of a drug of dependence and three counts of trafficking in a commercial quantity of drugs of dependence. He was on parole in respect of that sentence, living with his mother, when he allegedly committed the offences the subject of the current charges. Accordingly I place little weight on the support he enjoys from his family.

Third, Ms Georges, the applicant's partner, who is willing to be a bail guarantor for the applicant, was not said to be a person of dubious character. She indicated that she is aware that she could lose the $100,000 bail guarantee if the applicant breaches bail, and she undertook to notify the Informant as soon as practicable if the applicant breaches his bail. The amount of the guarantee offered by her is substantial. But also substantial is the amount of cash found inside the applicant's residence and in the van parked in his driveway on 17 June 2024 - over $600,000 altogether. The applicant has previously been convicted for involvement in large-scale drug trafficking. He stands accused of involvement in more large-scale drug trafficking. The prospect of his partner losing $100,000 if he breaches bail may not be viewed by him as an irreplaceable amount.

Fourth, whilst the respondent did not allege that the applicant is a flight risk, I find that he is such a risk, given the very length of the sentence of imprisonment he is likely to receive if convicted of the major charges. The applicant has a prior for failing to appear on bail.

Fifth, I agree that the prosecution case on the major charges has several difficulties to overcome, as outlined by the applicant, but I do not consider it to be a weak circumstantial case. I consider the prosecution case to have reasonable prospects. I am not surprised that the applicant's request for a discontinuance was rejected. The van was parked in the applicant's driveway. There is evidence that he used the van, including matching DNA on the steering wheel and a can of drink found in the front of the vehicle. The recent discovery of DNA matching the applicant's DNA on the inside of a glove found in the rear of the van next to over 2 kg of methylamphetamine is particularly significant. I reject the applicant's submission that this piece of evidence is neutral. The explanation given by the accused to the police for the presence of the van is not only lacking in detail but strikes one as implausible. Whilst no evidence of trafficking was found on the applicant's phone, it should not be forgotten that a large sum of cash, and a receipt for the recent deposit of a large sum of cash into a TAB account, was found in the applicant's bedroom.

Sixth, I accept that it would be in the public's interest if the applicant was rehabilitated through the proposed drug rehabilitation program. But given the seriousness of his prior convictions and longstanding drug history, it cannot be taken as a given that he will successfully complete the program. There is a considerable chance that he will not.

Seventh, the applicant's trial is listed to commence on 27 April 2026, approximately six and a half months away. That is not a great delay. Given the seriousness of the charges, the total delay of 22 months from arrest on 17 June 2024 to a trial in late April 2026 is not an inordinate delay.

Eighth, whilst I accept that time spent on remand is likely to exceed the sentence imposed on the minor charges relating to the contents of his bedroom, the sentence - if convicted of the major charges relating to the contents of the van - will far exceed time spent on remand. As I have already indicated, I consider that the prospects of conviction on the major charges are reasonable.

Ninth, as indicated in the Informant's report,[15] the applicant's potential employer has drug-related priors. The possibility of employment with his company does not assist the applicant.

Tenth, the applicant has a conviction for failing to appear on bail. That is a significant blot on his bail history. Further, he has admitted breaches of parole by his use of illicit drugs. Another matter of significance is his offending whilst undergoing sentence, including trafficking whilst in jail.

Eleventh, I accept that the applicant's depressive disorder and anxiety disorder are likely to make imprisonment harder for him than for prisoners without those disorders.

Twelfth, I also accept that the applicant's safety in prison is more precarious because he gave important evidence against another prisoner who is currently undergoing sentence. But no evidence was led to suggest that the prison authorities are not mindful of this concern in their placement of the applicant within the jail system.

Thirteenth, I accept that the applicant would only be released on bail if he is also granted parole, which would therefore provide another layer of monitoring and supervision. However, on his own admission, he was using illicit substances whilst on parole. Further, the case against him on the charges based on the contents of his room appears to me to be a strong one, evidencing breaches of parole over and above the use of illicit drugs.

14. Strict bail conditions including judicial monitoring

Fourteenth, I accept that strict bail conditions can be imposed to further address risk and that judicial monitoring might further motivate the applicant to comply with his bail conditions.

I have now discussed each of the matters relied on by the applicant to establish exceptional circumstances. Importantly, I have rejected the submission that the prosecution case on the major charges is a weak one. Consequently, I view the submission that he is likely to spend more time on remand than any prison term imposed following conviction as of little force. I have also mentioned matters which detract from the weight that might otherwise be accorded to family support, the offer of a bail guarantee, delay, employment, his bail history, prisoner safety and bail subject to parole. I have also found that he is a flight risk.
The availability of a drug residential program is the strongest point in his favour but, as mentioned above, it is not a given that he would successfully complete the program, especially given the seriousness of his criminal history and the longevity of his drug addiction.
Even if he did successfully complete the residential rehabilitation program, the program runs for approximately 90 days; it is not a 12-month residential program like the one considered in Robinson. A return to the community in the new year would, in my view, involve additional risk of relapse and reoffending and flight.
Ultimately, each bail application has to be decided on its own facts and circumstances. Here, the applicant is charged with, amongst other things, trafficking in a large commercial quantity of methylamphetamine and trafficking in a commercial quantity of cocaine whilst on parole for trafficking in a large commercial quantity of MDMA and three counts of trafficking in a commercial quantity of methylamphetamine, 1,4- Butanediol and cannabis. On his own admission, he breached his parole by the continual use of illicit drugs.
The net result is that I am not persuaded that the applicant has established that there are exceptional circumstances justifying a grant of bail.
Furthermore, I am persuaded by the respondent that the applicant is an unacceptable risk if granted bail of engaging in large-scale trafficking, of endangering members of the community thereby and of flight.
Accordingly, bail is refused.

[1] Bail Act 1977 (Vic) ss, 4AA, 4A, Item 6 of Schedule 1.

[4] I was provided by defence with the amended summary which was provided to the court on 14 August 2025 in relation to this incidence of trafficking.

[5] The various amounts of methylamphetamine were mostly 86% pure and, at least, 84% pure. The Informant's report at [28] alleges a total of 2750.1 g of methylamphetamine.

[6] See report of Jessica Walton, forensic officer, dated 5 September 2025.

[7] See report of Jessica Walton, forensic officer, dated 5 September 2025.

[8] I note this evidence was not available when Judge Harper heard a bail application by the applicant in the County Court and found exceptional circumstances but the risk was unacceptable.

[9] Report of Dr Mathew Staios, 14 September 2025, p3, [3.8].

[10] Report of Dr Mathew Staios, 14 September 2025, p4, [5.2].

[12] Especially paragraphs [37] and [43].

[13] See Obian v The King [2023] VSCA 18, especially at [24]-[31].

[14] Cf Bail Act 1977, s 5AAA (7) and (8), which effectively prohibits the involvement of private companies in electronic monitoring of adults released on bail.

Re Moustafa (Bail Application) [2025] VSC 638 (10 October 2025)

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