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[2022] VSC 735
General information, not legal advice.
Supreme Court of Victoria
2022-11-29
PRIEST JA
Original judgment source is linked above.
CRIMINAL LAW - Bail - Applicant charged with Schedule 1 offences of trafficking not less than a large commercial quantity of methylamphetamine and cocaine - Whether exceptional circumstances justifying grant of bail - Whether unacceptable risk - Bail refused - Bail Act 1977, s 3AAA, s 4A, s 4AA, s 4E.
1 Jordan Pope ('the applicant'), aged 41, seeks bail from this Court.[1] As formulated in the notice of application for bail, the ground upon which he seeks bail is:
There are 'exceptional circumstances' by virtue of the delay to trial and other matters contained in the affidavit of [the applicant's solicitor].
• trafficking in a large commercial quantity of a drug of dependence (three charges - charge 1, methylamphetamine; charge 2, cocaine; and charge 6, pseudoephedrine);
• dealing with property suspected of being proceeds of crime, being $412,690 cash (charge 3);
• being a prohibited person in possession of an imitation firearm (charge 4);
• committing an indictable offence whilst on bail (charge 5); and
3 In my opinion, bail should be refused. My reasons follow.
4 Since the applicant is charged with Schedule 1 offences within the meaning of the Bail Act 1977 ('the Act'), this Court must refuse bail unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail. In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.
5 Although the Act does not define exceptional circumstances, guidance may be derived from what Beach JA observed in Re Sam:[2]
The Bail Act does not define what are exceptional circumstances. It is trite that, in order 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, notwithstanding the very serious nature of the charge against her.[3] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[4]
6 Beach JA also observed in Re Diab:[5]
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[6] Beale J, citing Kaye J in DPP v Muhaidat,[7] referred to the question of exceptional circumstances in the following terms:[8]
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[9]
7 If the Court is satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[10] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is an unacceptable risk.[11] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[12]
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;
(g) the accused's personal circumstances, associations, home environment and background;
(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;
(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; ...
The applicant's criminal history and personal circumstances
11 The applicant has a relatively lengthy criminal history, commencing in 2004, for driving offences, family violence and other violent offences, weapons offences (including several convictions for possessing prohibited weapons and imitation firearms), dishonesty offences, and offences involving breaching community correction orders ('CCOs') and bail. He has a limited criminal history for drug-related offending, however, consisting of possessing cannabis in 2020, and possessing GHB in 2021. I pause to note that on 4 February 2013 Pasani was sentenced to a six month suspended sentence of imprisonment - which she breached - for trafficking amphetamine; and Hearnden has prior convictions for trafficking methylamphetamine (2010) and trafficking a large commercial quantity of a drug of dependence (2013), for which he has received substantial sentences of imprisonment.
12 On 19 July 2022, the applicant was sentenced to three months' imprisonment in relation to three charges of contravening a family violence intervention order ('FVIO') and one charge of failing to answer bail. The same day, a charge of contravening a CCO was found to be proven, with no further order made.
13 The applicant has previously been sentenced to periods of imprisonment. In 2009, the applicant received a sentence of one month's imprisonment, wholly suspended for a period of 12 months, for driving while suspended. On 24 June 2021, he received multiple concurrent sentences of imprisonment (the effective total term imposed being three months' imprisonment) in relation to family violence offences, driving offences, breaching bail and a CCO, and previous offending for which he was re-sentenced (which included violent offending, possessing weapons, possessing GHB, contravening a FVIO, and breaching bail).
14 So far as his personal circumstances are concerned, the applicant has two children, aged 12 and seven years. Due to the existence of FVIOs, he has no contact with his children or their mother. He was in the early stages of commencing family law proceedings to resume contact with his children when he was remanded in custody.
15 The applicant has a history of polysubstance abuse. As a teenager, he began using cannabis, cocaine, amphetamines and ecstasy recreationally on weekends. In 2009, when he was about 28 years old, his first child was born, and he stopped using drugs. For approximately three years, the applicant abstained from drugs. In 2012, however, the applicant again began using methamphetamine recreationally; and in 2020, in the context of the COVID-19 pandemic, the applicant's methamphetamine use increased dramatically. This contributed to a breakdown in his relationship with the mother of his children, and their subsequent separation.
16 Prior to his remand in custody, the applicant was unemployed and living with his mother in Seaford.
17 The alleged offending is very serious, although I note that a number of his alleged co-offenders have been granted bail. His co-offenders include Neil Parsons, Lisa Crabtree, Tina Pasani, Lee Hearnden, Troy Barker, Daniel Barfoot and Syed Hussain. Parsons, Crabtree, Pasani, Hearnden, Barker and Barfoot were each granted bail in the matter in the Melbourne Magistrates' Court, between 18 and 24 May 2022. Barfoot and Barker have since been charged and remanded in custody in relation to subsequent offending. For reasons I need not go into, Hussain has only relatively recently been arrested.
18 In summary, the prosecution alleges that the applicant and seven co-offenders were part of a criminal syndicate trafficking significant amounts of methylamphetamine and cocaine in the Southern Melbourne metropolitan and Greater Bendigo areas between March and May 2022.
19 The alleged offenders first came to the attention of investigators on 2 June 2021, after police observed Hearnden speeding, picking up Pasani from her address, driving to Crabtree's address, and receiving a plastic bag of unknown contents from her. Police then intercepted the vehicle and conducted a search, finding $15,000 between the driver's seat and the centre console. Pasani stated the cash was a payment from a sponsor and that she was on her way to deposit it. Police did not seize the money since there were insufficient grounds to do so.
20 Police installed listening devices inside Pasani's home address and Hussain's vehicle (a taxi), pursuant to surveillance devices warrants issued in this Court on 31 January 2022. On the basis of conversations recorded by these devices, the prosecution allege that the offenders' roles were as follows:
21 The prosecution have transcribed some of the conversations recorded by the listening devices, the majority of which are led by Pasani. For example, the applicant is involved in the following selected exchanges with Pasani:
22 Further transcribed conversations include exchanges between Pasani and others (including co-accused Barfoot, Hearnden, Barker, and other associates), on a number of occasions, in which she discusses 'bags' (said to be drugs) purchased by associates and money owed. For example:
23 On 6 May 2022 police executed search warrants at the homes of the accused (with the exception of Mr Barfoot) and seized a large number of items.
• At the applicant's home, police seized: an imitation firearm with wooden stock; scales; multiple mobile phones; a notebook recording drug transactions; $411,790 in cash, some of which had been vacuum sealed and hidden; 83.4 grams of cocaine; 23.4 kilograms of pseudoephedrine (12 kilograms pure); and 1.58 kilograms of an unknown substance.
24 CCTV footage obtained from Pasani and Barker's home address allegedly shows the applicant entering their garage with three containers of white powder on 3 May 2022. The prosecution alleges that the white powder depicted is the 23.4 kilograms of pseudoephedrine located at the applicant's home on 6 May 2022.
25 On 6 May 2022, police arrested the applicant, Pasani, Barker, Hearnden, Crabtree and Parsons at their respective homes. They were remanded in custody that day. Hussain was not present that day when police executed the search warrant, and has only recently returned to the jurisdiction from overseas. Barfoot was arrested on 12 May 2022. The applicant gave a 'no comment' interview.
26 In support of his application, the applicant relied on an affidavit sworn by his solicitor, David McKenna, on 4 November 2022. Mr McKenna deposed that the applicant concedes that he was in possession of the items seized at his address by police - including the 12 kilograms of pure pseudoephedrine and more than $400,000 in cash - he being 'primarily a delivery driver within the syndicate's operations'. The applicant will have treatment for drug abuse open to him in the community through CISP ('Court Integrated Services Program'),[13] in coordination with his general practitioner and the Men's Behavioural Change Program.
27 The applicant's mother, Julie Pope, also gave oral evidence in support of the application. I need not discuss her evidence in detail, save to say that she offered to provide a surety of $150,000, and gave an undertaking to the Court that, should her son be released on bail, she would notify the police if he breached his bail conditions.
28 Counsel for the applicant put parity at the forefront of his submissions. He submitted that the fact that most of the applicant's co-accused had been granted bail amounted to exceptional circumstances.[14] The prosecution alleges that the applicant's role in the drug syndicate is lower than Pasani and Hearnden. Counsel relied on the fact that Hearnden was sentenced to five years' imprisonment for trafficking a large commercial quantity of drugs in March 2013, and had earlier received a sentence of three years for trafficking methylamphetamine; and Pasani was sentenced to six months' imprisonment for trafficking amphetamine in February 2013. By way of contrast, the applicant has no prior history of drug trafficking, and has only minor convictions for possessing GHB and cannabis. In circumstances where co-accused with weaker claims have been granted bail, the principle of equal justice dictates that the applicant should also be granted bail.[15] Counsel submitted that the applicant's position is anomalous and difficult to justify. The applicant's ongoing detention, while co-accused have months ago been granted bail, constitutes an exceptional circumstance. Finally, counsel submitted that the risks alleged by the respondent can be rendered acceptable by their proposed bail conditions in addition to a surety in the amount of $150,000.
29 The respondent relied on an affidavit affirmed on 18 November 2022 by Grace Butcher, a solicitor with the Office of Public Prosecutions, the contents of which it is unnecessary to recite. First Constable Dean Greenall, the informant in the applicant's case, also gave evidence and was cross-examined by counsel for the applicant. Bail is opposed on the basis that parity considerations, delay, the strength of the prosecution case, availability of treatment, family support, stable place of residence and availability of a surety do not amount to exceptional circumstances. The respondent contends that the prosecution case is particularly strong on charge 6, since the large commercial quantity of pseudoephedrine was found within the applicant's possession at his address. If convicted of the offences of trafficking in large commercial quantities of drugs of dependence, the applicant will be sentenced to a substantial term of imprisonment far exceeding any time he will spend on remand. As to that, trafficking in a large commercial quantity carries a maximum penalty of life imprisonment, and attracts a 'standard sentence' of 16 years' imprisonment.
30 Further, the respondent submits that the applicant poses an unacceptable risk of committing an offence while on bail; endangering the safety or welfare of any person; and failing to surrender into custody in accordance with the conditions of bail. The respondent's primary concern is that the applicant will commit offences whilst on bail - particularly drug-related offending - given the extent of his involvement in the current alleged offending. Moreover, the respondent contends that the applicant has demonstrated a continued contempt for court orders. The alleged offending was committed during the operation period of a CCO that was imposed by the Frankston Magistrates' Court on 26 June 2021 for offences of contravening a FVIO and persistent contravention of a FVIO. During the operation of the CCO, the applicant failed to undergo treatment and rehabilitation as required on eight occasions, failed to be supervised, monitored and managed as directed on six occasions and committed the offending as charged. The applicant was also on bail when arrested for the current offending, in circumstances where he has two prior convictions for contravening conduct conditions of bail and committing indictable offences whilst on bail.
31 Assuming, without deciding, that a principle analogous to the principle of parity in sentencing applies to decisions concerning bail, I consider that bail must be refused.
32 It is not disputed that, on 6 May 2022, police located 23.4 kilograms of pseudoephedrine (12 kilograms pure) and $411,790 in cash in the applicant's possession. Significantly, the applicant concedes that he was in possession of these items, and also an imitation firearm (albeit that, in the circumstances, I do not regard the possession of this item to be of importance); scales; mobile phones; a notebook recording drug transactions; 83.4 grams of cocaine; and 1.58 kilograms of an unknown substance. By acknowledging that - at the least - he was 'primarily a delivery driver within the syndicate's operations', the applicant also concedes in effect that he was involved in trafficking of drugs of dependence; that is, the movement of illicit drugs from source to consumer. There thus appears to be a formidable prosecution case that the applicant trafficked in a large commercial quantity of pseudoephedrine. Indeed, there appears to be a powerful case that the applicant had possession for sale of an amount of pseudoephedrine more than 16 times the prescribed large commercial quantity,[16] this offence attracting a maximum sentence of imprisonment for life.[17]
33 On the face of it, not only is the prosecution case strong, but the applicant's represents a serious example of a serious offence. Were the applicant to be convicted of trafficking a large commercial quantity of a drug (or drugs) of dependence as alleged, he will inevitably be sentenced to a lengthy period of imprisonment, far exceeding any time that he will spend on remand (presently estimated to be about 18 months).
34 Against that backdrop, none of the matters relied upon by the applicant - including parity, delay, the availability of supervised bail and a substantial surety - alone or in combination amount to exceptional circumstances; that is, circumstances taking the case out of the normal so as to justify the admission of the applicant to bail notwithstanding the very serious nature of the charges against him. That said, on the face of things it appears to me to be somewhat remarkable that various magistrates have seen fit to grant bail to a number of the applicant's co-accused. So much may, however, simply be a reflection of the fact that the applicant's case is to be distinguished from that of his co-offenders on the basis that it was only the applicant who was found in actual physical possession of such a large quantity of a drug of dependence.
35 But even were I persuaded that exceptional circumstances had been established, I would still refuse bail on the basis that the applicant represents the unacceptable risks contended for by the respondent, such risks not being capable of acceptable amelioration by any conditions the court might impose. In particular, I consider that when one has regard to his criminal history, and his previous breaches of bail and other court orders, it is clear that the applicant poses an unacceptable risk of committing an offence (or offences) on bail. That risk is not capable of being rendered acceptable, even by the provision of a surety in the suggested amount.
36 Finally, for the sake of completeness I note that none of the charges for which the applicant seeks bail are family violence offences. Were I to assume, however, that s 5AAAA(2) of the Act applied,[18] I would not consider there to be a risk that the applicant would commit family violence of such a magnitude that bail should be refused or special conditions imposed.
[1] Due to the applicant's failure to demonstrate that there were exceptional circumstances justifying a grant of bail, a magistrate refused him bail on 30 September 2022.
[2] Re Sam [2017] VSC 91, [22] (citations as in original).
[3] Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).
[5] Re Diab [2020] VSC 196; (2020) 282 A Crim R 462, [36] (citations as in original) ('Re Diab').
[6] Re Reker [2019] VSC 81.
[7] Re Muhaidat [2004] VSC 17.
[8] Re Reker [2019] VSC 81 at [39].
[9] Re Muhaidat [2004] VSC 17 at [13]-[14].
[10] Subsections 4A(4), 4D(1)(a) of the Act.
[11] Subsections 4E(1)-(2) of the Act.
[12] Subsection 4E(3) of the Act.
[13] In a report dated 25 November 2022, Jessica Cubias, an Assessment and Referral Practitioner in the CISP Remand Outreach Program recommended the applicant for case management.
[14] Counsel cited Gant v The Queen [2016] VSCA 340 (Weinberg and Priest JJA).
[15] Counsel cited DPP (Cth) v Abbott (1997) 97 A Crim R 19 (Gillard J).
[16] A large commercial quantity is 750 grams: Drugs, Poisons and Controlled Substances Act 1991, Schedule 11, Part 3, Column 1A.
[17] Drugs, Poisons and Controlled Substances Act 1991, s 71(1).