Re Naughten [2018] VSC 806 (2 November 2018)

1 On 22 August 2018, Melinda Naughten ('the applicant') was arrested and charged with trafficking in a large commercial quantity of a drug of dependence (methylamphetamine); four counts of possessing a drug of dependence (methylamphetamine, cocaine, and ecstasy); being a prohibited person in possession of a firearm; possessing an unregistered general category firearm; possessing materials for the manufacture of a drug of dependence (methylamphetamine); unlicensed person storing a firearm in an insecure manner; unlicensed person storing ammunition in an insecure manner; three counts of dealing with property suspected of being proceeds of crime ($102, 450, a birth certificate and passport, and three firearm holsters); trafficking in a drug of dependence (cocaine); possession of a prohibited weapon (taser); storing unauthorised explosives (fireworks); dishonestly receiving stolen goods (ballistic vest); and possession of body armour without exemption.

2 The applicant was charged with these offences after Victoria Police executed a search warrant at a residential address in Cranbourne North, on 22 August 2018.

3 The applicant has been in custody since her arrest. She has no outstanding matters, and was not subject to any court orders at the time of the alleged offending. On 6 September 2018, the applicant was refused bail at the Melbourne Magistrates' Court. Presently, the charges are listed for a committal mention on 15 November 2018 at the Melbourne Magistrates' Court.

4 There are two co-accused in this matter, brothers Sasa Dukic and Dejan Dukic. Dejan Dukic was charged with possessing a drug of dependence (methylamphetamine), using a drug of dependence (methylamphetamine), and committing an indictable offence whilst on bail, on the same day as the applicant. He has also applied for a grant of bail in this Court, and faces an application for revocation of a previous grant of bail.

5 This application for bail was filed on 26 September 2018, and accordingly the Bail Act 1977 ('the Act') which incorporated amendments as at 3 September 2018 applies. Later amendments to the Act which commenced on 1 October 2018 do not apply.

6 The applicant is charged with the Schedule 1 offence of trafficking in not less than a large commercial quantity of a drug of dependence.[1] Therefore, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail, pursuant to s 4A(1) of the Act.

7 The burden of satisfying the Court that exceptional circumstances exist rests with the applicant, pursuant to s 4A(2) of the Act.

8 In considering whether exceptional circumstances exist, the Court must take into account the 'surrounding circumstances'.[2] Thus, by reason of 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.

9 If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, ss 4A(4) and 4B(1) then require the Court to apply the 'unacceptable risk test'.

10 Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the 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.

11 In applying the unacceptable risk test, the Court must again consider the surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[3]

12 Further, when interpreting the Act, s 1B requires the Court to take into account 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;

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

13 Finally, if the applicant is granted bail, s 12(3A)(a) of the Act requires that a statement of reasons for granting bail be included in the order.

14 On 22 August 2018, police executed a search warrant at the applicant's residence situated in Cranbourne North. The applicant's partner, Sasa Dukic, also resides at this address.

15 The applicant and Dejan Dukic, Sasa Dukics' brother, were both present. Upon gaining entry, police observed a clear plastic container containing a crystallised substance on a table near to where Dejan Dukic was sitting. Both were arrested.

16 Sasa Dukic was subsequently arrested at a different location in Cranbourne and transported back to his residence. A search of his vehicle located two mobile phones.

17 In the course of their search of the residence, police allegedly located various items including a large plastic container labelled 'Continental n-Butanol' and a portable stove top. Police further located approximately 730 grams of methylamphetamine; a firearm magazine containing an unknown number of rounds; a 9mm semi-automatic handgun; $102,450 in cash; another clear container containing 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.

18 During the record of interview, the applicant gave no comment other than to confirm that she had been residing at the residence with her partner Sasa Dukic for the last five years and that he owns the property.

19 Dejan Dukic was charged with possession of methamphetamine (28gms); use of a prohibited drug; and committing an indictable offence whilst on bail. The case against the applicant is of greater scope than that put against Dejan Dukic.

20 The applicant is 32 years old and a qualified hairdresser and registered dog breeder. She completed high school at a year ten level.

21 The applicant has a brief criminal history. On 28 March 2017, she was found guilty of possessing heroin, methylamphetamine, prescription drugs and a prohibited weapon without exemption. These charges were dismissed a year later, following her successful compliance with an undertaking of good behaviour.

22 The applicant contends that the following matters are established by evidence, and in combination, demonstrate exceptional circumstances that justify the grant of bail.

23 It is pointed out that the large commercial quantity of methylamphetamine and $102,450 cash were located concealed under a sunbed in a rear bedroom. Currently, there is no forensic evidence linking these items directly to the applicant. Further, it is argued that the applicant's partner, Sasa Dukic, made full admissions, and told police that neither the applicant nor his brother were involved in the offending.

24 Further, it is argued that there is no evidence other than occupancy at the residence to support the allegation that the applicant was aware of and in possession of the commercial quantity of the methylamphetamine, the money, the firearm, and other items. It is also pointed out that the applicant is not a prohibited person as defined under s 3(1) of the Firearms Act 1996.

25 The results of forensic testing on various items are yet to be obtained. There is no certain date on which those results will be available. There is likely to be significant delay between the applicant's arrest in August 2018 and her earliest trial date in the County Court in late 2019 or early 2020; a period of up to 12 months or more.

26 The applicant has been diagnosed with Supraventricular Tachycardia, which is a cardiac rhythm disturbance. She is not currently medicated for this condition and is prone to fainting during an episode.

27 This is the applicant's first time in custody and she has no prior convictions. As discussed above, it is to be noted that she has a previous finding of guilt in respect of a drug offence, however, this resulted in a dismissal of a bond to be of good behaviour.

28 On 31 August 2018, the applicant was assessed by CISP as suitable for the Remand Outreach Program ('CROP') which involves case management upon her possible release on bail. I also received an updated report dated 31 October 2018, which confirmed that the applicant is recommended for community referral, but that ongoing case management is not required.

29 The applicant is supported by her parents and should bail be granted, it is proposed that she will reside with them in Carrum Downs. They have agreed to this arrangement. The applicant grew up in Bentleigh with her parents and an older brother. She has had stable employment as a hairdresser since being qualified. She intends to return to hairdressing upon release, and has an offer of employment.

30 The applicant relies on a psychological report of Ms Lisa Jackson dated 30 August 2018 who concluded that she 'exhibits very few characteristics and attitudes of female offending populations. She scored lower on the risk/need variables and in an above average range for protective strengths which on her part includes personality attributes, stable housing, employment, family support and goals for the future'.

31 The applicant's parents are willing to provide a surety in the sum of $100,000.

32 The respondent opposes the application for bail and submits that she is an unacceptable risk of committing further offences whilst on bail.

33 In response to the applicant's contention that the prosecution case is weak, the respondent relies upon the evidence that:

• the applicant confirmed during the record of interview that she has been residing at the premises for the last five years;
• all items were concealed at either end of the sunbed in the rear bedroom, making them easily accessible;
• the applicant has access to the rear bedroom as evidenced by the fact that her belongings are also located in that room;
• whilst the firearm and large quantity of methylamphetamine were concealed under the sunbed, the majority of the other items were located in plain sight;
• items seized were in open and common areas of the house, including the kitchen and bathroom, both of which were in close proximity to where the applicant was observed at the time of entry; and
• while Sasa Dukic has made admissions to the offences, he did not supply any information as to what the items were and where they were located.

34 In response to the applicant's contention about delay, the respondent submits that analysis requests were placed for each item on 24 August 2018, two days after the execution of the search warrant.

35 Further, the respondent submits that the proposed address is not suitable on the basis that at the previous bail hearing in the Magistrates' Court, the applicant's father gave evidence that she had previously attended this residence in a drug affected state. It is submitted that residing with her parents would not eliminate the risk of re-offending.

36 During the application, I heard evidence from the informant, Constable Alexandra Kapetenovski. She expressed concerns at the applicant's risk of reoffending, based on the chemicals and large quantity of drugs found at the apartment. The amount of drugs located was approximately ¾ of a kilogram of methylamphetamine. The informant indicated that drug analysis would take 3-4 months, but was unable to give any indication as to when fingerprint and DNA testing would be completed.

37 Constable Kapetanovski was of the opinion that a condition that the applicant live with her parents is unsatisfactory, as she is a grown woman and they would be unable to watch her each day. It was implied the applicant has shown herself to be an unacceptable risk of committing further offences.

38 Counsel for the applicant pointed to the fact that a large number of relevant items, including the firearm and the large quantity of drugs, were found secreted under a solarium and within a speaker in a bedroom. The informant agreed that the vast majority of items were not in plain sight. Other items were found in a cupboard in the same room. Counsel pointed to photographs of the room, seeking to demonstrate that when considered properly, this room was largely used for storage, rather than being a functional, current bedroom. There were examples of female clothing in the room, but the informant was unable to confirm that any belonged to, or were connected with, the applicant. The informant was not able to point to evidence that the applicant used the room, although, as an occupant of the premises, it is reasonable to assume she had the opportunity to access it should she have wanted to.

39 Further, the applicant pointed out that the premises are leased in the name of Sasa Dukic, who claimed ownership of all the seized items. It was submitted there is no evidence that the applicant has a legal or financial interest in the premises. Further, it was submitted that although the applicant had been charged with being a prohibited person in possession of a firearm, she is in fact, not a prohibited person.

40 On the evidence before me, there is no suggestion that the trafficking charge brought against the applicant involves allegations demonstrating the movement of drugs. The case seems alleged on the basis of her possession of most of the items and drugs located in the premises, by reason of her co-occupation of the premises.

41 As to my preliminary conclusions about the strength of the prosecution case, there appears to be no direct evidence of the applicant's actual knowledge of the drugs in the premises. Knowledge would need to be inferred from all the circumstances. Counsel for the applicant raised the possibility that the deeming provisions of the Drugs Poisons and Controlled Substances Act 1981 may not be sufficient to elevate the applicant to resident status of the premises for the purposes of that Act. That remains to be determined.

42 As to delay, there is a strong possibility that the applicant's trial will be listed for late 2019 or into 2020. It is acknowledged that with a series of mentions and a committal hearing, the wait for final resolution is considerable. There also remains the prospect that the applicant's case may resolve as a summary matter. In this case, the sentence imposed may be significantly shorter or different in nature to one that might be imposed in the County Court. The applicant appropriately pointed out that any negotiations that might resolve the applicant's case are likely to not occur until forensic results are obtained, which on the present estimate, may take 3-4 months for completion. The prosecution fairly conceded that this case may not resolve until 2020.

43 Despite that concession, the prosecution maintained that the applicant has to show exceptional circumstances, and the standard has not been reached. It has been observed that 'the hurdle confronted by an applicant in establishing exceptional circumstances "is a high one"',[4] however, it is not an impossible standard to reach.

44 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'.[5] It is also widely 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.[6] 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; or, unusual features of the alleged offending or the investigation, which might either solely, or in combination, make the circumstances exceptional.[7]

45 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.[8]

47 The applicant also pointed to the existence of the CISP reports of October 2018, and the psychologist report, which it is argued, suggest that risks of further offending are capable of amelioration. The applicant concedes she has been a recreational methamphetamine user over a two year period. It is submitted that this use is no more than consistent with the scene that was apparent in the premises when police arrived.

48 I note that the prosecution relied upon the possibility of relapse into drug use as the main risk factor, should the applicant receive a grant of bail, along with the related risk of associating with other drug users. The applicant is prepared to abide by the conditions proposed in the CISP reports, and indicated a willingness to attend an assessment in relation to substance use with an accredited worker.

49 Further, I have considered that the applicant has a written offer of full-time employment. She has also submitted that she is willing to abide by conditions which involve having no contact with Sasa Dukic, to live at home with her parents, and for there to be a substantial surety. The aspect of the applicant's health issues was relied on, although it was acknowledged that this issue is of limited weight.

50 Having weighed the evidence and the matters put on behalf of the applicant, I am satisfied that by a combination of factors, she has demonstrated that exceptional circumstances exist. Furthermore, in my opinion, stringent conditions to a grant of bail can ameliorate what otherwise might be unacceptable risk factors. In reaching these decisions, I have taken into account the surrounding circumstances as I am required to do by the Act.

51 Accordingly, I will grant bail the applicant bail with conditions.

52 Note: On 30 November 2018, I granted an application to vary bail. This allowed the applicant to contact her partner, Sasa Dukic, via recorded prison telephone calls. The conditions were also varied to allow her to visit the Dukic family home for family functions, even when Dejan and/or Sasa Dukic are present.

[1] Bail Act 1977 (Vic) sch 1 item 6 (a).

[2] Ibid s 4A(3).

[3] Ibid s 4E(3).

[4] 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.

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

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

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