Application for bail by DD
[2022] VSC 176
•4 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0065
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by DD | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 April 2022 |
DATE OF RULING: | 4 April 2022 |
CASE MAY BE CITED AS: | Application for bail by DD |
MEDIUM NEUTRAL CITATION: | [2022] VSC 176 |
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CRIMINAL LAW – Bail – Applicant charged with trafficking a commercial quantity of methylamphetamine and other charges – Relevant prior history – Delay – Mental health treatment available – Strong family support – Substantial surety – Mother undergoing treatment for melanoma – New partner strongly supportive – Exceptional circumstances established – Not an unacceptable risk – Bail granted with strict conditions – Bail Act 1977 – ss 1B, 3AAA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Sarah Pratt and Associates |
| For the Respondent | Ms R Harper | Office of Public Prosecutions |
HER HONOUR:
Introduction
On 23 November 2021 the applicant was charged and remanded by the Informant, Senior Constable Daniel Sanderson, with the following:
(a) Charge 1: Traffick a drug of dependence, namely methylamphetamine, that was of a not less than commercial quantity, contrary to s 71AA of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’) on 15 September 2021;
(b) Charge 2: Traffick a drug of dependence, namely methylamphetamine, contrary to s 71AC of the DPCS Act on 15 September 2021;
(c) Charge 3: Possess a drug of dependence, namely methylamphetamine, contrary to s 73 of the DPCS Act on 15 September 2021;
(d) Charge 4: Possess a drug of dependence, namely methylamphetamine, contrary to s 73 of the DPCS Act on 23 November 2021; and
(e) Charge 5: Fail to comply with a direction to assist, contrary to s 465AAA of the Crimes Act 1958 (Vic) on 23 November 2021.
The applicant was refused bail by Magistrate Burt in the Melbourne Magistrates’ Court on 21 February 2022. While exceptional circumstances were made out (on the basis of delay, conditions in custody, his mental health issues, stable accommodation and the availability of drug counselling) bail was refused on the basis he posed an unacceptable risk of committing an offence whilst on bail and endangering the safety or welfare of any other person.[1]
[1]It is noted that a risk that the applicant would endanger the safety or welfare of any other person was not raised in this application.
The applicant’s matters are next listed on 11 May 2022 at the Melbourne Magistrates’ Court for Committal Hearing.
In addition to the oral submissions at the hearing I received affidavits (with annexures) from both parties in support and in opposition to bail respectively, and an updated letter from Ferrari Consulting Group setting out the plan for the applicant’s treatment if released on bail.[2] The respondent also filed written submissions, and the applicant provided a brief submission setting out a list of authorities relied on.[3]
[2]Affidavit in Support sworn by Richard Jakobson on 15 March 2022 (Exhibit A1), Letter from Ferrari Consulting Group dated 24 March 2021 (though it seems the letter was actually written in 2022) (Exhibit A2), Surety Affidavit sworn by Ms Dislakis on 31 March 2022; Affidavit in Response sworn by Kail David John Marshall on 25 March 2022 (Exhibit R1), Sentence and Remand Summary (Exhibit R3).
[3] Submissions on behalf of the Respondent dated 30 March 2022 (Exhibit R2).
At the hearing, the applicant’s representatives agreed that an episode of case management through the Court Integrated Services Programme (‘CISP’) would be of assistance. Enquiries were made of CISP during the hearing, and the applicant ultimately submitted that his attending a CISP assessment could be made part of his bail conditions.
Circumstances of applicant’s alleged offending and arrest
It is alleged that on 14 September 2021 the applicant rented a 2019 Silver Kia Sportage Wagon “GoGet” car using an existing GoGet account that was in registered in the applicant’s name and included his date of birth, address and mobile number. At the time he rented the car, the applicant also provided a photograph of himself holding his driver licence.
The following day, it is alleged that the applicant drove the GoGet car to an Australia Post Office in Reservoir, and was captured on CCTV footage arriving in the GoGet car at the Post Office and exiting the car carrying a small red and white Australia Post satchel. Mapping data from the applicant’s mobile phone and the GoGet car also placed the phone and the vehicle in the Reservoir area at the time the parcel was sent. The applicant then mailed the parcel to “Carley Lee” at an address in Perth, Western Australia.[4]
[4] The sender was recorded by name with an address in Brighton, Victoria.
On 24 September 2021 the parcel was intercepted by police at a post office in Western Australia. Inside the parcel was a Nike shoe box containing two vacuum wrapped bags. The parcel contained a total of 416.64 grams of pure methylamphetamine.[5] DNA swabs were taken from the parcel and forensic analyse subsequently identified the applicant as a likely contributor to DNA located on inside of the postal satchel and the outside of the Nike shoe box.
[5] 496 total grams of powder with 84% purity.
On 23 November 2021 Police executed search warrants at the applicant’s home. During the search, police found the following items:
(a) A total of 2.2 grams of a substance believed to be methylamphetamine. The substance was found in various locations in the applicant’s home, including:
(i) two re-sealable bags[6] in shoes found in the built in robes of the applicant’s bedroom;
[6] Containing a white powdered substance.
(ii) a re-sealable bag in the couch in the living room;[7]
[7] Containing a white powdered substance.
(iii) a re-sealable bag in the television cabinet in the living room;[8] and
[8] Containing a clear crystal substance.
(iv) a coffee cup[9] in the kitchen pantry.
(b) One Apple iPhone found in the applicant’s pants, four mobile phones and five sim cards found in various locations of the home.
(c) A purple notebook containing names and addresses in the television cabinet in the living room. The notebook recorded details that matched those of the parcel intercepted by police in Western Australia, including: the recipient’s details; the sender’s details; the delivery place and time; and the parcel’s Australia Post tracking number.
[9] Containing a clear crystal substance.
A second man, Gabriel V, was also present at the address when the warrant was executed. Police searched Gabriel V and found a small quantity of methylamphetamine in his wallet. Gabriel V was charged with possession of methylamphetamine and having fraudulent driver licence. Gabriel V does not reside at the applicant’s address.
Other outstanding matters
The applicant was also charged on 16 March 2021 on summons by Senior Constable Smith with the following charges:
(a) Driving whilst disqualified contrary to s 30(1) of the Road Safety Act 1986 (Vic) (‘RSA Act’) on 16 January 2021;
(b) Drive with more than the prescribed concentration of drug present contrary to s 49(1)(bb) of the RSA Act on 16 January 2021; and
(c) Having an illicit drug within oral fluid contrary to s 49(1)(h) of the RSA Act on 16 January 2021.
The applicant’s personal circumstances
Much of the detail about the applicant’s personal background can be gleaned from the report of forensic psychologist Laura Fleming, dated 14 February 2022. The applicant is 32 years old. Prior to his arrest he was living at an apartment in the Docklands.
The applicant was born in Melbourne and raised in Preston by his mother and father until he was 8 years old. He is the youngest of three siblings and, as a child, witnessed domestic violence, including verbal arguments between his parents and physical violence committed by his father against his mother. When the applicant was 8 years old his parents separated. From that point on, the applicant principally lived with his mother, though he spent some time when he was in year 8 and year 10 living with his father.
The applicant was expelled from school at the end of year 7. He commenced year 8 at a new school. He continued to experience some difficulties at school, particularly towards the end of year 12 when his grades and behaviour deteriorated as a result of increased substance use. The applicant has a long history of substance use, beginning in year 8 or year 9 when he started using cannabis. In year 10, the applicant started using amphetamines and in year 12 he began to use methamphetamine. Nevertheless, he did manage to complete year 12.
As an adult, the applicant has lived on and off with his family, although he has been asked to leave the homes of family members in the past due to his substance use or because his mother felt he was ‘using her house as a hotel’.[10] The applicant reports a good relationship with his family. His mother is currently receiving treatment for melanoma[11] and at the time of the bail application was in hospital for surgery.[12]
[10] Affidavit in support, exhibit RJ-2 (report of Laura Fleming), [21]-[22].
[11] Ibid [23].
[12] Ibid [27].
The applicant has undertaken work intermittently, with his ability to work at times being compromised by his substance use and periods of imprisonment. After leaving school, the applicant worked for three years for a company installing balustrades. He stopped working because of substance use. He later returned to work as labourer for a concreting company. That employment ended when he was remanded in custody. Prior to his arrest on 23 November 2021, the applicant had experienced difficulty finding consistent work because of the COVID-19 pandemic, though he had engaged in some work as a labourer.[13] Prior to his arrest, the applicant had been using up to one gram of methamphetamine a day.[14]
[13] Ibid [27].
[14] Ibid [40].
The applicant was assessed forensic psychologist Laura Fleming on 7 February 2022. Ms Fleming assessed the applicant using a number of psychometric tests. The ASRS screening tool was used to measure symptoms associated with possible ADHD. His results are consistent with an ADHD diagnosis,[15] though further review will be required.[16] The applicant was also assessed using the Drug Use Disorders Identification Test, a test developed for identification of individuals with drug related problems. The applicant’s score places him at high risk of drug-related harm and likely dependence on drugs at the time of the offending.[17]
[15] Ibid [66].
[16] Ibid [75] and [95].
[17] Ibid [60].
The applicant meets the criteria for a Stimulant Use Disorder.[18] He has a long history of substance use, beginning in early high school, which has negatively impacted his ability to work and his personal relationships. He previously sought treatment and has had two prior admissions to a detoxification unit around 2008 and 2010. The applicant told Ms Fleming that he had completed Alcohol and Drug Courses in custody, including a 44 hour program, the 24 hour program and commenced the making choices program as part of his parole. The applicant also said he had considered attending rehabilitation services but felt he would be able to remain abstinent by re-entering the workforce.[19]
[18] Ibid [74].
[19] Ibid [42].
Ms Fleming also notes the applicant is currently experiencing mild depression, moderate stress[20] and reported anxious feelings,[21] though this may be attributable to the circumstances he presently finds himself in.
[20] Ibid [55].
[21] Ibid [49].
He is in a current romantic relationship with Tegan C. They have maintained contact via Zoom whilst the applicant has been in custody.
Ms Fleming notes that imprisonment is likely to weigh more heavily on the applicant than a person without his conditions. Significantly, the applicant will have reduced access to programs and treatment to improve his mental health, particularly in relation to his potential ADHD and substance use.[22]
[22] Ibid [93].
Applicant’s criminal and bail history
The applicant has a criminal history dating back to 2011. Relevantly, in 2016 he was convicted of trafficking methylamphetamine for which he received a 3 year and 6 month custodial sentence, with a non-parole period of 2 years and 3 months. He also has convictions for breaching a prescribed term/condition of parole (two charges) in 2021; failing to answer bail, committing an indictable offence whilst on bail and contravening a conduct condition of bail in 2015; contravening a suspended sentence order in 2015; contravening a Community Correction Order in 2014; and failing to answer bail (three charges) in 2011.
With respect to the applicant’s term of imprisonment imposed in 2016, Mr Dann explained at the hearing that at the time that sentence was imposed, he had not yet been released from custody with respect to previous offending. He was released on parole in October 2018, but he breached his parole in May 2019 due to him engaging in further driving offences. He was returned to custody for the balance of his sentence.
Applicable law
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[23] This includes, amongst other things, taking into account the presumption of innocence and the right to liberty.[24]
[23] The Act, s 1B(2).
[24] The Act, s 1B(1)(b).
In this case, the parties agree that the applicant must establish that exceptional circumstances exist in order to justify the grant of bail due to being charged with a Schedule 1 offence.[25] In considering whether exceptional circumstances exist, the Court must take into account ‘the surrounding circumstances’.[26] This includes all the circumstances that are relevant to the matter, including, but not limited to those set out in s 3AAA(1) of the Act.
[25]Namely, trafficking in a drug of dependence in not less than a commercial quantity, namely methylamphetamine – the Act, Schedule 1, item 6(b); see also s 4AA(1) of the Act.
[26] The Act, s 4A(3).
Even if satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing that if released on bail, the applicant poses an unacceptable risk of engaging in any or all of the conduct captured by s 4E(1). In the present case the respondent mainly relies on the following aspects of risk to argue that the applicant poses an unacceptable risk:
(a) Committing an offence while on bail;
(b) Failing to surrender into custody in accordance with the conditions of bail; and/or
(c) Interfering with witnesses.
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
Delay and COVID-19
Potential delay in the current charges being finally determined is a relevant consideration especially in light of court backlogs as a result of the COVID-19 pandemic. This gives rise to consideration of the principles expounded by Beach JA Re Diab.[27]
[27] [2020] VSC 196, [38].
Applicant’s contentions in support of bail
The applicant relies on a combination of the below factors to establish exceptional circumstances justifying a grant of bail:
(a) Strength of Prosecution case: Despite the respondent’s submission that the case against the applicant is strong, the applicant submits that there are triable issues, relating to knowledge, intention and possession, in circumstances where the applicant’s DNA is found on the exterior of the Nike shoe box and not on any of the substances inside the package.
(b) Surety: The applicant’s mother, Ms Dislakis, has offered to provide up to $1,000,000.00 using the equity on her property.
(c) Family support and stable accommodation: The applicant proposes to live at his mother’s address in Preston, Victoria with his mother. Ms Dislakis is currently receiving ongoing treatment for melanoma. She was unable to attend the hearing in this matter due to having recently had surgery. The applicant gave brief evidence at the hearing. He told the Court his father lives close by to his mother and that both he and his sister are also supportive of him and were aware of the charges he is facing. He also explained that his relationship with Tegan C was quite new, having begun only 4 months before he was remanded. She has been a great support for him whilst in custody. He told the Court she previously had a drug habit but had been sober for 4 years, having previously undertaking residential rehabilitation treatment at DayHab. She then worked as a clinician at that service, though now works for her father, who is also her sponsor. The applicant believes that her father had been an alcoholic some 20 years ago, but had been sober for a long period. To his knowledge, she has no prior criminal convictions.
(d) Availability of treatment/rehabilitation: Treatment for the applicant’s mental health, and support regarding his drug addiction and potential ADHD is available through Ferrari Consulting Group. The applicant was assessed by Forensic Psychologist Ms Laura Fleming on 7 February 2022. Ms Fleming found that the applicant suffers from mild depression and moderate stress. Ms Fleming recommends that the applicant:[28] undergo a further longitudinal assessment by a psychiatrist in relation to potential ADHD and anxiety, see a psychologist to provide support managing symptoms in relation to his potential ADHD and his substance abuse, and engage with ongoing AOD counselling and drug rehabilitation. The applicant has an appointment with Forensic Psychologist Marlese Bovenkerk of Ferrari Consulting Group on 12 April 2022, pending the applicant being released from custody obtaining a mental health care plan from is GP. During the hearing the applicant acknowledged that Ferrari Consulting might ultimately recommend that he go into residential rehabilitation and told the Court that he would be open to that. He indicated he would also be open to an assessment through CISP.
[28] Affidavit in support, exhibit RJ-2 (report of Laura Fleming), [95].
(e) Employment: the applicant has a potential job available in construction with a friend, who is said to not be a drug user. The job offer is presently unconfirmed.
(f) Electronic Monitoring: The applicant has proposed that he be subject to electronic monitoring managed by Attenti Australia. The monitoring would be paid for by the applicant. The applicant explained at the hearing that he has previously been subject to electronic monitoring whist he was on parole. He said he never had any issues with the monitoring bracelet.
(g) Delay: The applicant submits that extensive delays in having his trial reached in the County Court could be up to three years from the date he was remanded. The delays have been caused in part by the COVID-19 pandemic. The applicant was remanded on 23 November 2021. By 11 May 2022, the date of the contested committal, the applicant will have served 170 days in custody.
Mr Dann QC for the applicant also submitted at the hearing that the applicant would submit to judicial monitoring whilst on bail, and it was not submitted that he would simply be admitted to bail without further supervision of the Court.
The applicant told the Court that he is far more mature now than he was during his prior convictions, and he was suffering homelessness during the previous periods where he breached court orders. He said he did not previously take his Court matters seriously, as he does now. He told the Court that he had never before had a surety of this magnitude on offer. He told the Court he would not breach any conditions of bail because not only would his mother lose her surety, he considered he would totally lose the support of his family. He noted the severity of his mother’s health conditions, and was grateful for her ongoing support. He appears motivated to comply with his bail if granted so that he can support and look after her. He said he would comply with any conditions of bail, including daily urine screening if required.
Respondent’s contentions in opposition to bail
The respondent opposes bail on the basis that the applicant has not established exceptional circumstances justifying a grant of bail.
The respondent also submits that the applicant poses an unacceptable risk under s 4E(1)(a) of committing further offences whilst on bail, interfering with witnesses; or failing to appear as discussed further below.
Exceptional circumstances
The respondent says the following in response to the applicant’s submissions:
(a) Strength of the prosecution case: The respondent submits that the prosecution case is strong, in circumstances where:
(v) There is DNA linking the applicant to the parcel of drugs;
(vi) The recipient’s address was located at the applicant’s property in a notebook in the living room;
(vii) Images of the person who sent the parcel bear similarities to the applicant;
(viii) The car used by the person who sent the parcel has been linked to the applicant through the GoGet car hire company; and
(ix)Australia Post material similar to that sent containing the drugs was located at the applicant’s property.
(b) Delay: The respondent accepts that there are substantial delays in finalising this matter, but says that the time the applicant would spend in custody would not likely outweigh any sentence that may be imposed.
(c) Family support and stable accommodation: The respondent does not raise any issues with the proposed bail address.
(d) Availability of treatment/rehabilitation: The respondent does not raise any issues with the treatment proposed.
(e) Electronic monitoring: the respondent raises concern that payment by the applicant for the electronic monitoring cannot be guaranteed in circumstances where the applicant does not have employment available to him.
Unacceptable risk
The respondent submits in relation to risk:
(a) Failing to answer bail: If the applicant is granted bail, it is believed that he will continue to disregard court orders and will fail to appear.
(b) Risk of interfering with witnesses: the respondent says that there are likely others involved in the alleged trafficking operation and the applicant may attempt to conceal information relation to potential co-accused. The respondent says that the applicant’s failure to cooperate with police by providing access to his mobile phone(s) supports the view that he may make further attempts to conceal evidence.
(c) Risk of further offending: In 2015 the applicant committed an indictable offence while on bail. The respondent also says the applicant “has been known to live beyond his means” and suggests that the applicant may continue to engage in drug trafficking to maintain his lifestyle.
Consideration
Has the applicant established that exceptional circumstances exist justifying a grant of bail?
The charges the applicant is facing are serious, and the Crown case on its face appears fairly strong. However, he is contesting the charges and is entitled to the presumption of innocence. Nevertheless, if convicted it is likely that the applicant would face a lengthy term of imprisonment. I accept Ms Harper’s submission that eighteen months to two years is a realistic estimate of the delay the applicant will face before his case can be heard and as such it is not likely he would spend longer on remand for this matter than the likely sentence were he found guilty on these charges. That being said, the delay is still very lengthy and the conditions the applicant is under on remand are onerous, especially in light of restrictions caused by the pandemic.
Further, I accept that the applicant’s specific rehabilitation needs would be better served in the community than in custody. He is able to be supported by staff and consultants attached to Ferrari Consulting Group regarding ongoing psychological treatment aimed at addressing the issues underlying his past offending. The applicant has a relevant criminal history, and served a significant term of imprisonment for drug trafficking in the past. Whilst he has made some previous attempts at drug rehabilitation without success, the road to recovery from long standing drug addiction is not always smooth or linear. In considering the question of future risk, the respondent agreed that the foremost risk of concern was that the applicant would be tempted to re-offend by way of drug use or drug trafficking or criminal activity connected to these temptations. In my view the risk of re-offending in this way would be ameliorated if the applicant engaged with Ferrari Consulting as a condition of bail in combination with a number of other very stringent bail conditions including urine testing and bail monitoring, curfew and static residence and possible CISP involvement.
At this juncture, the applicant has a long life ahead of him, and is still young enough to turn his life around. He spoke warmly of the support offered by his parents and siblings and of his motivation to reform in light of their commitment to helping him. It seems clear that the applicant has strong family support from his mother, his father and his siblings. His mother has offered him a stable address whilst on bail and offered her residential home to support her acting as bail surety. This allows of a substantial sum as surety for bail. I also note that the applicant is in a supportive romantic relationship and that the applicant’s current partner is likely to be a good influence on him.
In considering exceptional circumstances I am satisfied this test is met by reason for the combination of delay to trial, conditions on remand due to the pandemic, the structured drug rehabilitation support available to him, the close relationship he has with his ailing mother and the seriousness of her health condition as described by her doctor and the strong family support from parents and siblings, the substantial surety, the support of his new partner, the prospect of a stable address and possible suitable employment and importantly, the applicant’s own evidence in support of bail in which he professed a firm motivation to rehabilitate himself and abide by the strict bail conditions proposed.
Has the respondent satisfied the Court that the applicant poses an unacceptable risk of engaging in any of the conduct set out under s 4E(1)(a) of the Act?
I am not persuaded that there is a significant risk that the applicant will fail to appear on bail, interfere with witnesses or endanger the community if released on bail. The risk of re-offending is more pertinent to this application. At the hearing of this application, Ms Harper emphasised that her primary submission was that the applicant poses an unacceptable risk of committing further offences whilst on bail.
I accept that the applicant has a relevant criminal history. Whilst there are convictions for breaching bail and community based dispositions, many of them related to his early to mid-20s. The more recent offence for breaching parole recorded in his criminal history refers to a driving offence and possess a prescribed substance. The applicant was breached on parole but then re-paroled and then completed parole successfully. The applicant’s past offending is likely connected to his underlying, and presently, unaddressed drug addiction.
The risks alluded to by the respondent, in particular the risk of reoffending, can be ameliorated to an acceptable level by stringent bail conditions including regular urine drug screening. The applicant is fully aware of the situation he will find himself in if he breaches bail, having already been imprisoned in the past for breaching Court orders.
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. In this regard, I found the applicant’s sworn evidence in support of bail to be sincere. I accept that he currently has a strong incentive to keep his bail conditions pending his County Court trial because of the desire not to add to the burdens his ailing mother is suffering and given the importance of his new relationship and the family support he anticipates receiving if he remains complaint with bail.
I am also satisfied that a substantial surety will serve as a powerful incentive for the applicant to comply with bail, particularly given his mother’s precarious health and the jeopardy he will place his remaining family relationships in if he risks forfeiture of her surety. The offer of employment is also protective as it will provide the applicant with an occupation whilst on bail and will reduce the risk he will turn to illegal activities to support himself.
I do not think the electronic bracelet proposed by the applicant would add much to other more pertinent conditions in considering what conditions are needed to reduce the risk of re-offending. The applicant is likely to be closely watched on bail through reporting to police, urine screening, curfew checks and the applicant being restricted from having more than one mobile phone and prevented from using any encrypted devices or software.
The offer of employment combined with family support, a stable address and available treatment, and the substantial surety, all combine to reduce risk in the present case to an acceptable level
Accordingly, bail will be granted with strict conditions.