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[2020] VSC 146
Supreme Court of Victoria
2020-03-27
Lasry J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Charges of trafficking commercial quantity - Committing indictable offence whilst on bail - Whether exceptional circumstances established - Delay caused by COVID-19 pandemic - Exceptional circumstances established - Risk cannot be reduced by bail conditions - Application refused - Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, , .
1 This is an application for bail by Shannon Taylor (the 'applicant').
2 On 24 October 2019, Senior Constable Ashley Riley (the 'informant') charged the applicant with trafficking a commercial quantity of methylamphetamine, possessing a firearm as a prohibited person, negligently dealing with proceeds of crime, possessing a drug of dependence, and committing an indictable offence whilst on bail. All offences are alleged to have occurred the day before.
3 The informant also charged him with handling stolen goods, possessing ammunition without a licence, and possessing a dangerous article, but these charges were not filed until 12 December 2019.
4 As the applicant is accused of committing a Schedule 1 offence under the Bail Act 1977 (Vic) ('the Act'), namely, trafficking a commercial quantity of methylamphetamine, the parties are agreed that bail must be refused unless the Court is satisfied exceptional circumstances exist that justify the grant of bail.[1]
5 The applicant has been in custody since his arrest on 23 October 2019. He applied for a grant of bail from the Melbourne Magistrates' Court on 11 December 2019. The application was refused on the grounds that he failed to show a compelling reason and there was an unacceptable risk that he would endanger the safety or welfare of any person, or fail to surrender into custody in accordance with conditions of bail.
6 The matter was initially listed for committal mention on 24 January 2020 but was adjourned until 19 May 2020 as forensic analysis of the suspected drugs and firearm remained outstanding. A summary of the DNA results was provided by the respondent on 17 March 2020, but it was estimated that the drug and ballistic results will not be available until April.
7 Due to the present state of emergency caused by the COVID-19 outbreak, the mention listed for 19 May 2020 may not proceed, and there is little prospect of a contested committal occurring in the near future.
8 At the time of the alleged offending, the applicant was on bail and summons in relation to three outstanding matters. These matters resolved on 24 February 2020. The applicant pleaded guilty to a number of consolidated charges, including possessing methylamphetamine and a controlled weapon (a flick knife), drug driving, unlicensed driving, and breaching an alcohol interlock condition. The applicant was fined a total of $1,000 and his driver's licence was cancelled.
9 The circumstances of the alleged offending in the current matter are as follows. On 23 October 2019 at 11 pm, Victoria Police conducted a traffic stop on a grey BMW Tourer that was parked in a rear bay of Autobrite Carwash in Seaford. The applicant was in the driver's seat and his co-accused, Rhiannon Bartling, was in the front passenger seat. Police observed a baseball bat in the foot well of the driver's seat.
10 Police approached the car and asked for the applicant's driver's licence. He first provided an Australia Post Keypass in the name of Bowen Taylor, but police observed he did not match the picture on the card. When confronted with this, the applicant provided his actual driver's licence.
11 In the course of his interaction with police, the applicant handed over a snap lock bag containing a crystalline substance, which is alleged to be methylamphetamine. He was then arrested and, during the subsequent search of his person, police found a second bag of methylamphetamine in his pocket, a glass pipe, and a handwritten note of names, numbers and dollar amounts in his underwear. They also found $1,970 cash in his wallet.
12 Police directed Ms Bartling to exit the vehicle and sit on the curb. She was observed to be moving suspiciously, which prompted police to ask her to stand. Two snap lock bags containing a substance alleged to be methylamphetamine and a vial of a clear, viscous liquid, alleged to be 1,4 Butanediol, were located under where she had been sitting. She was then arrested.
13 A search of the vehicle was conducted, and police found several items, including:
14 Following his arrest, police searched the applicant's house where nothing further was seized. They also searched the co-accused's residence and seized handwritten ledgers, a CCTV system, multiple mobile phones and an iPad.
15 The DNA summary report, which became an exhibit on this hearing, indicates the applicant cannot be excluded as a contributor to DNA located on the plastic bags of suspected drugs found inside the vehicle and the firearm. As previously stated, forensic analysis of these items remains outstanding.
16 The co-accused in this matter, Ms Bartling, was charged with:
17 On 19 December 2019, Ms Bartling was granted bail by the Melbourne Magistrates' Court on the grounds that she has a stable residence, ties to the jurisdiction, family support, and a limited bail history as well as the strength of the prosecution case and 'manifest delay'. It is also not in contention that Ms Bartling is pregnant with the applicant's child.
18 Ms Bartling's criminal history includes contravening a community correction order from 2016 and committing indictable offences whilst on bail in April 2016, December 2016 and January 2019.
19 According to the affidavit in support, she is likely to plead guilty to 'the quantity of drugs' once the forensic analysis is available.
20 The applicant is 31 years of age. He reported experiencing a difficult childhood and began to socialise with a negative peer group. His father died by suicide when he was 13 years of age, which was reported to have had a significant effect on him. He began living on his own from the age of 16; although he now has a close and supportive relationship with his mother and younger half-sister.
21 Following his expulsion in Year 10, he attempted two apprenticeships, which he did not complete because of his criminal activities. The applicant has worked infrequently as a labourer, but does not appear to have maintained stable employment.
22 The applicant has a long history of substance use. He began consuming alcohol heavily after his father's death. At age 18, his alcohol consumption declined as he began using speed, ecstasy and, eventually, methylamphetamine. He reported periods of abstinence from methylamphetamine for three to six months before resuming due to life stressors. In May 2019, the applicant was hospitalised after being shot in the leg, and following his release his use of methylamphetamine increased.
23 The applicant met his current partner in August 2019. She resides in Sydney with her seven-year-old daughter. The applicant reported that her daughter has been a motivation for him to address his substance use issues and antisocial activity.
24 According to a report prepared by psychologist Miriam Latif on 5 December 2019, the applicant was 'likely suffering from depressive symptoms associated with Adjustment Disorder' at the time of the alleged offending in October 2019. A second psychological report by Lisa Jackson, dated 25 March 2020, noted the applicant has reported symptoms consistent with Post-Traumatic Stress Disorder ('PTSD') and Generalised Anxiety Disorder.
25 The applicant has an extensive criminal history dating back to 2004. His history includes offences related to driving, weapons and ammunition, theft, burglary, drug possession and trafficking, violence, affray, property damage, receiving stolen goods and dealing with suspected proceeds of crime.
26 He also has convictions for committing an indictable offence on bail in April 2018, contravening a conduct condition of bail in 2015, failing to answer bail in 2009 and 2011, contravening a community correction order in 2018, contravening a suspended sentence order in 2015, and failing to comply with a community-based order in 2011.
27 As noted above, the applicant is charged with a Schedule 1 offence, namely, trafficking a commercial quantity of methylamphetamine. The applicant is therefore required to demonstrate the existence of exceptional circumstances that justify the grant of bail.[2]
29 The phrase 'exceptional circumstances' has been the subject of regular consideration in this Court. In order to be 'exceptional', it is accepted that:
30 Relevant to the applicant's submissions, this Court has previously considered that the availability of intensive, residential drug treatment was persuasive in establishing exceptional circumstances.[7] However, other cases have found that the availability of such treatment was not sufficient to establish exceptional circumstances or otherwise ameliorate unacceptable risk.[8]
31 If the Court is satisfied that exceptional circumstances exist, the Court must nevertheless refuse bail if satisfied by the respondent that there is an unacceptable risk that, if released on bail, the applicant would:[9]
(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.[10]
33 The applicant relied upon the following matters in combination to demonstrate the existence of exceptional circumstances that would justify the grant of bail.
34 Counsel on behalf of the applicant first submitted that there are live issues in relation to the primary charge of trafficking a commercial quantity of methylamphetamine, particularly in relation to the applicant's knowledge and possession of the drugs. However, as I understood counsel's submission, it was not suggested that the prosecution case was a weak one as opposed to there being issues of fact.
35 It was then submitted that the applicant's criminal history is indicative of someone motivated by his addiction to illicit substances, particularly methylamphetamine. He was assessed in December 2019 as a suitable candidate for the 90-day residential treatment program at the DayHab Treatment Centre ('DayHab') in Melbourne. I understand that there is a bed still available for him. It was put that this would be the first time he will have had the opportunity to engage in drug treatment of this magnitude. The cost of this treatment or assistance will apparently be largely covered by his private health insurance.
36 In support of this submission, I received an affidavit from Justin Vincent, an intake and assessment officer at DayHab, in which he described, amongst other things, the security measures at the facility. The applicant would reside at a residential facility in Ringwood East, which is under 24-hour camera surveillance and is staffed by a registered nurse and support worker. A private hospital vehicle would shuttle him to the DayHab facility in Glen Waverly each day along with other residents of the Ringwood East facility and two staff members. Mr Vincent stated that if reporting conditions were imposed, a support worker would transport and supervise the applicant while he reported at the Glen Waverly police station. DayHab would also give an undertaking to report any breaches of bail conditions to the relevant authorities, including the informant.
37 A second affidavit, sworn 25 March 2020 by Ms Jackson, stated that, should the applicant be granted bail, he will receive additional psychological intervention from Ms Jackson during his residential treatment at DayHab. Following the completion of that program, the applicant would attend weekly or fortnightly meetings with Ms Jackson as part of a mental health care plan.
38 Counsel for the applicant further relied on the fact that the applicant's matter will be subject to significant delay. As previously stated, the first committal mention was scheduled for 24 January 2020 but was adjourned to May 2020 to allow for the completion of forensic reports. However, contested committals and jury trials have been suspended indefinitely in the Magistrates' Court. A trial in this matter is unlikely to be listed until the latter half of 2021. Counsel on behalf of the applicant submitted that, if the applicant were acquitted on the charge of trafficking in a commercial quantity and found guilty of trafficking simpliciter, there is risk that applicant may spend more time in custody than the potential sentence he may receive.
39 While it was accepted by the applicant that his alleged offending is serious, it was submitted that the alleged offending in relation to the drugs and firearms are not the most serious examples of those offences as they are stand-alone charges based on items found in a vehicle.
40 Counsel for the applicant also submitted that the applicant now has stable accommodation in the community. It was proposed that the applicant would reside with his mother, Cheree Parks, at her home in Carrum Downs after he completes the DayHab residential program. By way of affidavit affirmed on 25 March 2020, Ms Parks deposed that she would assist the applicant in attending appointments and support him in his continued rehabilitation in the community. Ms Parks also stated she would immediately report any breaches of bail conditions to the police.
41 It was initially submitted that the applicant had full-time employment available to him, which was confirmed in an affidavit of his prospective employer, Josh Waters. However, it was conceded that the employment will be subject to the state of the economy and other changes in the community as a result of COVID-19 when the applicant completes his inpatient rehabilitation.
42 Finally, counsel for the applicant submitted that all the above factors also apply to the Court's assessment of the risk posed by the applicant if he were released on bail. It was submitted that any unacceptable risk can be effectively ameliorated by the imposition of strict conditions that would limit the applicant's movement and treat his addiction.
43 Originally, the respondent opposed the application on the grounds that the applicant failed to demonstrate the existence of exceptional circumstances and that the applicant is an unacceptable risk of endangering the safety and welfare of any person, committing further offences, and failing to surrender into custody in accordance with the conditions of bail. It was ultimately conceded by counsel on behalf of the respondent that the delay occasioned by COVID-19 may be considered an exceptional circumstance. However, the respondent's opposition to bail on the basis of the unacceptable risk posed by the applicant's release remained and was argued.
44 In particular, there are concerns for community safety as he is a prohibited person who nevertheless had access to a firearm and ammunition on 23 October 2019. He has two previous convictions for firearms offences from March 2015 and April 2018. Counsel on behalf of the respondent submitted that the presence of a loaded firearm elevates the seriousness of the alleged drug-trafficking activity.
45 The respondent also relied on recently acquired evidence in the form of phone calls between the applicant and others from custody on the Arunta telephone system. In the course of these phone calls, the applicant appears to make admissions in relation to the possession of the firearm, indicating that he was using it for personal protection.
46 Other excerpts from these conversations also appear to indicate, at least on the face of it, that he continued drug trafficking whilst in custody with assistance from his current partner. The applicant also appears to be discussing with others the prospect that his co-accused will take responsibility for the drugs located by the police when they were arrested, and he attempted to pass messages to his co-accused about their charges.
47 It was also submitted that the applicant has shown disregard for court orders and bail conditions as demonstrated by his criminal history. Therefore, as counsel for the respondent submitted, the Court cannot have confidence that the applicant would abide by any conditions and the risks if he were released remained unacceptable.
48 This is a difficult application for bail, and those difficulties mainly arise as a result of the COVID-19 emergency. In my opinion, the offending alleged by the applicant is very serious when taking into account with his prior history and, in particular, the involvement of firearms.
49 However, as I have made clear in previous applications of this kind brought after Australia declared COVID-19 a public health emergency, I must pay careful attention to the extensive delay caused by the present circumstances.[12] The applicant has been in custody for five months and may be facing a very substantial period in further custody. Policies enacted by the courts in Victoria to respond to the COVID-19 outbreak mean the applicant's case is unlikely to make progress in the next six months and, by the time the trial is reached, he may have spent somewhere in the order of 18 months or more in pre-trial custody.
50 Whilst there are still no reported cases within the prison system, there does remain the prospect of the COVID-19 virus spreading into prisons. I am also told, without objection, that family visits to the Metropolitan Remand Centre, which is where the applicant is currently placed, have now been terminated. Whilst it remains speculation, I consider it 'overwhelmingly likely that the prisons will be locked down in a way that will make time in custody very difficult for all prisoners'.[13]
51 In my view, there is no question that exceptional circumstances have been established, primarily on the basis of the inordinate delay that will occur, along with the impact that COVID-19 is likely to have on the prison population.
52 Whilst I am satisfied that exceptional circumstances exist, the respondent has persuaded me that the risk of releasing the applicant on bail is unacceptable and that there are no conditions that I could impose that would ameliorate this risk.
53 It seems plain that, based on the circumstances of the alleged offending, including the possession of a firearm and a baseball bat, and his previous criminal history, the applicant poses an unacceptable risk to the community's safety.
54 I am also of the view that there is an unacceptable risk that the applicant will continue to offend whilst on bail. He has a significant criminal history of contravening court orders and authoritative conditions. It appears from the Arunta calls that I have referred to, the applicant was not dissuaded even whilst in custody and continued to engage in illegal activities.
55 In all those circumstances, the application for bail is therefore refused.
[1] Bail Act 1977 (Vic) s 4AA ('Bail Act').
[4] Re CT [2018] VSC 559 [64] citing Re Sam [2017] VSC 91 [22].
[5] See Armstrong v R [2013] VSC 111 citing _Re Application for Bail by Moloney (_Supreme Court of Victoria, Vincent J, 31 October 1990).
[6] Ibid. See also Re Brown [2019] VSC 751.
[7] See, eg, Bail application by Fadi Haddara [2014] VSC 284; Re an application for bail by Barish Sengul (Supreme Court of Victoria, Incerti J (formerly Zammit J), 9 December 2019); Robinson v The Queen [2015] VSCA 161; (2015) 47 VR 226.
[8] See, eg, Rajic v R [2016] VSC 27; Re an application for Bail by Vasko Stankovski [2016] VSC 310; Re an application for bail by Fadi Afram [2018] VSC 708.
[10] Ibid s 4E(1)(a).
[12] Re Broes [2020] VSC 128; Re McCann [2020] VSC 138.
(2015) 47 VR 226