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[2019] VSC 780
General information, not legal advice.
Supreme Court of Victoria
2019-11-29
ZAMMIT J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Applicant charged with Schedule 1 offence - Requirement to show exceptional circumstances exist that justify grant of bail - Whether exceptional circumstances shown - Whether an unacceptable risk - Lack of criminal history - Weakness of prosecution case - Exceptional circumstances established - No unacceptable risk - Bail granted - Bail Act 1977, ss 1B, 3AAA, 4A, 4AA, 4D and .
1 On 29 October 2019, Yianna Politis ('the applicant') was arrested and charged with:
(a) trafficking in a drug of dependence in not less than a commercial quantity pursuant to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981; and
(b) possession of a drug of dependence pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
2 The applicant has been in custody since her arrest. On the night of her arrest, the applicant applied for bail in night court before Magistrate Lamble, where bail was refused. On 30 October 2019, the applicant appeared before Magistrate Clifford at the Melbourne Magistrates' Court. She made a further application for bail which was again refused. The matter is next listed for a mention on 19 December 2019 at the Melbourne Magistrates' Court.
3 By notice filed on 8 November 2019, the applicant seeks a grant of bail in this Court. As the applicant is charged with trafficking in a drug of dependence in not less than a commercial quantity, bail must be refused unless she can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
4 The respondent does not oppose bail and submits that any risk could be made acceptable with appropriate bail conditions.
5 On Monday, 28 October 2019 at approximately 10:38pm, the police intercepted a BMW SUV, which was travelling west on Williamstown Road in Port Melbourne. Thomas Garrard was driving the vehicle, the applicant was the front passenger, and Anthony Aucello was the rear left passenger.
6 Detective Senior Constable Murray Gentner searched the vehicle and seized, among other things, the following items:
(a) a box of 'Fiji' water containing 10 x 1 litre unsealed bottles of clear viscous liquid, alleged to be 1,4 Butanediol; and
(b) 1 x Cool Ridge water bottle (1/5th full) containing a viscous liquid alleged to be 1,4 Butanediol.
7 After the police established that the parties had been at an apartment in Southbank prior to their vehicle being intercepted, a search warrant was executed at that address. Brett Cotton, one of the co-accused, was located at the address. It is alleged that a further 50 grams of methyl-amphetamine and a five litre bottle of 1,4 Butanediol were located in the apartment.
8 The applicant is 24 years old. Her parents have separated and she has one older sister, two step-brothers and two step-sisters.
9 At the time of the alleged offending, she was renting an apartment in Southbank. The applicant had terminated her lease prior to the alleged offending and was intending to move in with her father on 11 November 2019.
10 In a Court Integrated Services Program ('CISP') report dated 30 October 2019, the applicant reported a history of using illicit substances including methamphetamine, gamma hydroxybutyrate and alcohol. She reported previous treatment for alcohol and drug use, but did not identify it to be effective. The applicant also reported diagnoses of anxiety and depression, and previous engagement in self-harming behaviours. The applicant has sought support from a psychologist and last attended an appointment in August this year. She ceased contact as she no longer found it beneficial. She reported 'low mood' prior to entering custody, stating she felt as though she had 'lost control' and is going 'backwards'. Given this, she agreed to return to her general practitioner to obtain a new referral to a psychologist.
11 There are three co-accused. Thomas Garrard, who was driving the vehicle, was granted bail for these matters on 25 November 2019.
12 Anthony Aucello, who was in the rear passenger seat, is on remand in relation to these matters and is subject to a 12-month community corrections order imposed on 23 July 2019.
13 Brett Cotton, who was located in the Southbank apartment, was granted bail for these matters on 30 October 2019.
14 Pursuant to s 4AA(1) of the Act, the 'exceptional circumstances test' applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence. In the present matter, the applicant is charged with the Schedule 1 offence of trafficking a commercial quantity of a drug of dependence.[2] Consequently, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[3] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[4]
15 The applicant is also charged with the offence of possessing a drug of dependence, which is neither a Schedule 1 or 2 offence. In relation to this charge, the prosecution bears the burden of proving there is an 'unacceptable risk' if the applicant were released on bail, which I explain in detail below.[5]
16 In considering whether exceptional circumstances exist, the Court must take into account the 'surrounding circumstances' outlined in s 3AAA(1) of the Act.[6]
17 In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant 'must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail',[7] notwithstanding the very serious nature of the charge.[8] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[9]
18 If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) of the Act then requires the Court to apply the 'unacceptable risk test'. In accordance with 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.
19 The prosecutor bears the burden of satisfying the Court as to the existence of an unacceptable risk.[10]
21 When interpreting the Act, the Court is required by s 1B to take into account, inter alia, that -
(1) The Parliament recognises the importance of -
(a) maximising the safety of the community and persons affected by crime to the greatest extent 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.
(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).
22 Of relevance to this matter is the principle of parity as it applies to applications for bail by co-accused. In Director of Public Prosecutions (Cth) v Abbott,[13] Gillard J held that parity was relevant to the existence of exceptional circumstances and the inquiry concerning unacceptable risk. His Honour explained the application of the principle to applications for bail by co-accused as follows:
In my opinion the principle can apply but it must be established that things are equal as between the co-offenders ...
[F]or a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.
In my opinion a manifestly wrong decision to grant bail could not be used as a basis for the application of the parity principle in another bail application.[14]
23 In considering the requirement to establish that 'things are equal' as between co-offenders, Gillard J expressed the view that 'it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant'.[15] In Bchinnati v Director of Public Prosecutions (Vic) (No 2),[16] Croucher J stated of the application of the parity principle to bail applications, '[i]n some cases, however, the circumstances of two accused are sufficiently similar that, if bail had been granted to one, it would be wrong to refuse bail to the other, or at least the grant of bail to one would be a relevant consideration on the application of the other'.[17] In that case, Croucher J found that it would be 'wholly unfair' to deny bail to the applicant in circumstances where the co-accused was granted bail for what his Honour regarded as 'related but comparatively far more serious allegations of the same type'.[18]
24 In Gant v The Queen[19] the Court held that if a co-accused with weaker arguments for bail is granted bail, it would be 'wrong to differentiate' the outcome for the other co-accused.[20] That is, in circumstances where one co-accused, with weaker arguments for bail, is granted bail, the other co-accused (all other matters being equal) should also be granted bail.
25 The applicant relies on a combination of factors to demonstrate the existence of exceptional circumstances and the lack of unacceptable risk as follows.
26 The applicant concedes that the nature of charge one - trafficking a commercial quantity of a drug of dependence - is serious. However, she submits that the prosecution case in relation to that charge is deficient in a number of areas. The applicant relies on the following factors in support of this conclusion:
(a) there is insufficient evidence to prove that the applicant was aware of the presence of the substance alleged to be 1,4 Butanediol located on the rear-passenger seat of the vehicle;
(b) there is insufficient evidence to prove that the applicant was involved in the trafficking of 1,4 Butanediol;
(c) in her recorded interview, the applicant denied any knowledge of the substance;
(d) the substance was concealed inside a box in multiple plastic water bottles labelled as 'Fiji' water bottles;
(e) there is no forensic evidence linking the applicant to the substance alleged to be 1,4 Butanediol found on the rear-passenger seat of the vehicle;
(f) the substance has yet to be weighed or forensically analysed (which is conceded by the respondent); and
(g) there is insufficient forensic evidence linking the applicant to any items seized (including drug paraphernalia) from a search of the Southbank apartment.
Suitable accommodation and ties to the jurisdiction
27 The applicant submits that if she were to be released on bail, she would reside with her father, Jerry Politis, in Craigieburn. She has a close relationship to her family members, including her older sister, two step-brothers and two step-sisters. Jerry Politis has provided affidavit evidence that, should the applicant be granted bail, he undertakes to report any breaches of the applicant's bail conditions to the police.[21]
28 The applicant was assessed by the CISP prior to her first application for bail on 31 October 2019. A report dated 30 October 2019 was provided by Mr Gradey Moyle, an Assessment and Referral Practitioner. Mr Moyle recommended the applicant for CISP brief intervention case management. Mr Moyle also recommended that CISP form part of any bail conditions. The applicant was reassessed on 21 November 2019 by Samantha Burger, another Assessment and Referral Practitioner. Based on the initial treatment and support plan, Ms Burger similarly recommended that the applicant be granted bail and that CISP form part of any bail conditions.
29 Ms Burger set out a detailed support plan that includes the following:
(a) a further assessment in relation to Alcohol and Other Drugs with an accredited worker, with appropriate treatment to be arranged after such assessment;
(b) an appointment with the applicant's preferred general practitioner;
(c) one-month post release phone support through the CISP Remand Outreach Program ('CROP'); and
(d) follow up of the referrals and supports arranged for the applicant.
30 The matter is next listed for a mention on 19 December 2019, followed by a committal mention on 20 January 2020 and a committal hearing a few months after that. The applicant anticipates that a trial will not be listed anytime in 2020, which the respondent conceded in Court. If bail is refused, the applicant could spend well in excess of year on remand. The applicant submits that, in all the circumstances, this is an inordinate period of time to be held on remand.
31 The applicant has no criminal history. Consequently, the applicant has no history of committing offences while on bail, failing to comply with bail conditions, or failing to comply with court orders. The applicant submits that she can be assisted by CISP with mental health and drug counselling if released on bail, which would ameliorate any risk. The plaintiff also submits that she will have direct family support whilst on bail, further reducing any risk.
32 The applicant noted that two of the co-accused in this matter, Thomas Garrard and Brett Cotton, have been granted bail. The applicant submitted that the prosecution's cases against Mr Garrard and Mr Cotton are stronger than the case against the applicant, and therefore the principle of parity weighs in favour of a grant of bail.
33 The respondent submits that any risk posed by the applicant could be made acceptable through appropriate bail conditions being imposed. The respondent does not take issue with the affidavits of Tessa Di Paolo, solicitor for the applicant, or Jerry Politis, father of the applicant.
34 It is widely observed that the hurdle facing an applicant in establishing exceptional circumstances is 'a high one',[22] and that 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.[23] However, it is not an impossible standard to reach. As Hollingworth J noted in Hang Cao v DPP:
It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it 'should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.' [24]
35 It is also widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors.[25] In the often cited unreported judgment, Re Maloney, Vincent J summarised:
A number of decisions ... make it clear that [exceptional] 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.[26]
37 On the submissions and evidence before me, and taking into account the surrounding circumstances, I am satisfied that the applicant has shown exceptional circumstances exist that justify the grant of bail, through a combination of factors.
38 In particular, I am persuaded by the applicant's lack of prior convictions and criminal history, the availability of CISP supervision and support, her interest in engaging with rehabilitative programs, and the availability of family support (particularly by her father, Jerry Politis) in monitoring her compliance with any bail conditions.
39 The Court heard evidence of the applicant's compliance with rehabilitative programs and engagement with educational programs while in custody. The Court was also told that the informant observed the applicant to be 'far healthier' at this bail hearing, as compared to when she was initially arrested in October 2019. Further, the applicant readily consented to DNA testing during her interview with the informant, which she submitted was indicative of her willingness to co-operate with the informant.
40 I note that the prosecution conceded that forensic testing of the substances found in the vehicle remains outstanding. While it cannot be concluded from this that the prosecution case is weak, it equally cannot be concluded that the applicant will be convicted of this offence.
41 In addition, the applicant has indicated to Mr Moyle, who assessed the applicant's suitability for the CISP brief intervention case management, that she has agreed to attend her general practitioner with a view to obtaining a referral to a new psychologist. Clearly, if she is not on bail, the applicant cannot take this step which might disadvantage her at a future sentencing plea. In R v Hai Minh Nguyen,[29] Warren CJ said:
It seems to me undesirable to retain a person of the age of the applicant in custody for a period that could prove to be as long as two years before trial. Such circumstance may deprive an applicant of opportunities for rehabilitation and personal betterment that could ultimately be put before a court on sentence if appropriate and necessary.[30]
42 I note that the Court is to be grounded not only by the principles pertaining to the applicant, but by those which pertain to the wider community, one of which is to '[maximise] the safety of the community and persons affected by crime to the greatest extent possible'.[31]
43 In this case, as submitted by the respondent, with appropriate conditions the risk posed by the applicant would be at an acceptable level. As such, the potential detriment to the applicant of being unable to access medical and health services to help her deal with her mental health issues, and flowing from that, her drug use issue, is a matter I consider relevant.
44 Finally, the applicant submitted that the principle of parity weighs in favour of a grant of bail. She noted that two of her co-accused, Mr Garrard and Mr Cotton, had been granted bail, despite the prosecution's cases against the co-accused being stronger than the case against the applicant.
45 Based on a comparison of the materials before me, both Mr Garrard and Mr Cotton were charged with multiple counts of trafficking a commercial quantity of a drug of dependence, compared to the applicant's one count for this offence. Further, Mr Garrard has a criminal record, albeit with no relevant priors, as compared to the applicant's lack of criminal history. Mr Cotton is significantly older than the other co-accused, and Mr Garrard's youth was a reason for his grant of bail. In the circumstances, there is substantial merit in the argument that the applicant should, like Mr Garrard and Mr Cotton, be granted bail.
46 The respondent accepts that any risk posed by the applicant could be made acceptable through appropriate bail conditions being imposed. The applicant submits that her lack of criminal history, in conjunction with her family's support and the availability of CISP support services, would bring any risk down to an acceptable level.
47 Having weighed the evidence and the matters put on behalf of the applicant, I find stringent conditions to a grant of bail can ameliorate the risk posed by the applicant to an acceptable level. In reaching these conclusions, I have taken into account the surrounding circumstances as required by the Act.
48 Accordingly, I will grant bail to the applicant on the following conditions:
(a) she attend the Melbourne Magistrates' Court on 19 December 2019 and then surrender herself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender herself into custody;
(b) she reside at the specified address, and not change that address without the leave of the Court;
(c) she remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of the bail;
(d) she present herself at the front door of the premises during those curfew hours if and when called upon by a member of the Victoria Police to do so;
(e) she report to the Craigieburn Police Station every Saturday between the hours of 6:00am and 10:00pm.
(f) she abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act;
(g) she comply with all lawful directions as directed by any officer of the Court Integrated Services Program ('CISP') and/or the CISP Remand Outreach Program ('CROP');
(h) she not contact, directly or indirectly, the co-accused; and
(i) she not contact, directly or indirectly, any witness for the prosecution, except the informant.
[1] Bail Act 1977 sch 1, item 6(b) ('Bail Act').
[7] Re CT [2018] VSC 559 [64] (Champion J), citing with approval Re Sam [2017] VSC 91 [22] (Beach JA).
[8] Armstrong v R [2013] VSC 111 [31] (Lasry J), quoting Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1.
[9] Re CT [2018] VSC 559 [65] (Champion J), citing with approval Re Fairest [2015] VSC 375 [17]-[18], [22] (Weinberg JA).
[11] Ibid s 4E(3)(a).
[12] Ibid s 4E(3)(b).
[13] (1997) 97 A Crim R 19, cited with approval in Re Wilson [2006] VSC 178 [18]-[19] (Hargrave J); Gray v DPP (Vic) [2008] VSC 4 [15] (Bongiorno J); Bchinnati v DPP (Vic) (No 2) [2017] VSC 620 [69]-[70] (Croucher J); Re Saputra [2017] VSC 433 [15] (Lasry J).
[14] DPP (Cth) v Abbott (1997) 97 A Crim R 19, 29.
[21] Affidavit of Jerry Politis in support of application, affirmed 8 November 2019 [12].
[22] See, eg, Armstrong v R [2013] VSC 111 [31], citing Re Whiteside [1999] VSC 413.
[23] Re Sam [2017] VSC 91 [22].
[24] [2015] VSC 198 [7], citing Whiteside [1999] VSC 413 [10].
[25] See, eg, Armstrong v R [2013] VSC 111 [31]; R v Chung [2015] VSC 487 [15]-[31].
[26] Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990).
[28] Gant v The Queen [2016] VSCA 340 [21].