Application for Bail by Leo Eliades
[2017] VSC 164
•31 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0047
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by Leo Eliades |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 March 2017 |
DATE OF JUDGMENT: | 31 March 2017 |
CASE MAY BE CITED AS: | Application for Bail by Leo Eliades |
MEDIUM NEUTRAL CITATION: | [2017] VSC 164 |
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CRIMINAL LAW — Bail — Charges of drug trafficking in commercial quantity and handling stolen goods — Whether exceptional circumstances demonstrated — Whether unacceptable risk — Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Y Hardjadibrata | Solicitor for Public Prosecutions |
| For the Accused | Mr D Grace QC | Dr Martine Marich & Associates |
HIS HONOUR:
On 24 November 2016 the applicant was arrested and remanded in custody on 39 charges, which included trafficking a drug of dependence in a quantity no less than a commercial quantity, possession of drugs of dependence, handling stolen property and being in possession of prohibited weapons. He unsuccessfully applied for bail to the Melbourne Magistrates' Court on 13 January. The case has been listed for a committal hearing on 7 July next.
As the applicant has been charged with trafficking in a commercial quantity of a drug of dependence he is required to establish the existence of exceptional circumstances in order to be entitled to a grant of bail pursuant to s 4(2)(i)(a) Bail Act1977 (‘the Act’).
The charges against the applicant include the following: one charge of trafficking in a drug of dependence, namely methylamphetamine in a quantity no less than a commercial quantity; one charge of trafficking in a drug of dependence, MDMA, in a quantity no less than a commercial quantity. I interpolate, it may be that those two charges are combined into one of trafficking an aggregate amount in excess of a commercial quantity. The other charges are as follows: three charges of possession of a drug of dependence, namely methylamphetamine, MDMA and cannabis; four charges of dealing with the proceeds of crime, comprising respectively cash in $5,580, a Jaguar motor vehicle, cash in the sum of $13,245 and a Yamaha motorbike; 18 charges of handling stolen goods, including inter alia a ride‑on mower, two trailers and various items of tools and equipment; five charges of possession of a prohibited weapon, namely knives, knuckle dusters, extendable batons and throwing stars; one charge of possession of cartridge ammunition; two charges of committing an indictable offence while on bail, namely possession of amphetamine and handling stolen goods.
The applicant is the owner of two business, namely Face‑to‑Face Auction House and Face‑to‑Face Second‑Hand Dealer Pawn Shop which are respectively situated at 81 Lesley Street and 82 Lesley Street, St Albans. At the time of his arrest he resided at [redacted].
On 24 November 2016 the applicant was arrested near his residence. He was searched and was found to be in possession of four snap lock bags containing methylamphetamine weighing 9 grams, one small container with an ecstasy tablet and cash in the sum of $5,580. Search warrants were then executed on his residential address, his two business addresses, a North Sunshine address that he leased as a warehouse and an apartment linked to his main residence.
The drugs and weapons that are the subject of the charges that I have mentioned were found and seized at his home together with cash in the sum of $13,000.
The allegedly stolen items, the Jaguar vehicle, the motorbike and the ammunition were found and seized at his business addresses and at the warehouse. It is estimated that the total weight of amphetamine seized was 455.3 grams and the total weight of the MDMA, or ecstasy, seized was 289.2 grams. In addition, cannabis weighing 325.6 grams was also seized.
The applicant has a number of previous convictions relating to trafficking and possession of a drug of dependence, possession of a controlled weapon without excuse, being a prohibited person in possession of a firearm, knowingly dealing with the proceeds of crime, and possessing a silencer without a permit. He has been before the Courts on five separate occasions for those offences.
In particular, in February 2009 he was sentenced to an aggregate term of three months' imprisonment, suspended for two years on 12 charges of possession of silencers for a .22 calibre rifle without a permit.
In May 2012 the applicant was sentenced to a period of 14 days' imprisonment on charges of possession of drugs of dependence. The sentence was partially suspended with the effect that he served a total effective term of nine days' imprisonment.
Subsequently on 23 September 2015 the applicant was before the Sunshine Magistrates' Court on charges of trafficking cannabis, trafficking methylamphetamine, trafficking ecstasy, possession of amphetamine, possession of anabolic steroids, possession of cartridge ammunition without a licence, possession of an imitation general category handgun and possession of a controlled weapon without excuse. He was convicted on those charges and released on a Community Corrections Order (‘CCO’) for a period of 24 months. The order contained conditions that the applicant perform 100 hours unpaid community work, that he undertake treatment, assessment and rehabilitation for drug abuse or dependency. That community corrections order was current at the time at which the applicant was charged with the offences in the present case.
In addition the applicant was charged on 1 May 2016 with handling stolen goods and negligently dealing with the proceeds of crime, and at the time of his arrest in the present matter he was on bail to appear at Sunshine Magistrates' Court on those charges on 18 January last.
The applicant was born in 1968 and is 49 years of age. He married his first wife in 1989 and there are two adult children of that marriage. The applicant separated from his wife in 2008 but they maintain an amicable and supportive relationship. He subsequently met his current wife in 2012 and they have a three‑year‑old daughter.
Throughout his working life the applicant has assisted his parents run their various businesses, the most recent of which was a gun shop in St Albans. He worked in his parents' business originally with his brother Andrew. Tragically his brother passed away suddenly in September 2003, at the young age of 32, as a result of a subarachnoid haemorrhage.
Understandably that was a very stressful and traumatic period for the applicant and his family. The family business closed in 2011, the applicant began to build his own business which was involved in auction and pawn brokerage. He maintains that the businesses were legitimate and that he did not knowingly trade in stolen goods there.
The applicant has been addicted to methamphetamine for more than 20 years. His drug use escalated over that period of time to the point where he was smoking up to one gram of methamphetamine per day before his remand on these matters. During that time he received limited treatment to manage his drug addiction.
The applicant was assessed by the Court Integrated Service Program (CISP) on 13 January last and was recommended to be suitable for Level 2 intermediate case management by that Program. The report of that Program noted the applicant's significant history of methylamphetamine abuse. It proposed a plan, should he be granted bail, that would include conditions that he reside at his mother's address at St Albans, that he attend further assessment in relation to substance abuse with an accredited worker, that he attend an appointment with his general practitioner for a review of his physical health problems and that he attend regular appointments with the CISP case manager for review of his progress.
The applicant was also examined by Dr Danny Sullivan, a consultant forensic psychiatrist, in February of this year. Dr Sullivan formed the view that the applicant had a clear diagnosis of methamphetamine dependence in which he was currently abstinent while in the protective environment of custody. There was no indication of other mental disorder, mood disorder or personality disorder.
The applicant reported to Dr Sullivan that he was motivated to cease his abuse of methamphetamine.
The application is supported by affidavits by the applicant's mother, his former wife, his present wife, his sister‑in‑law, who is the widow of his brother Andrew, and his two adult children. The common theme of each of those affidavits is that the applicant is and has been a close family member who has worked hard in his parents' business and subsequently in his own business.
The affidavits demonstrate that the applicant was profoundly affected by the tragic passing of his brother, but that notwithstanding his problems he has been a supportive son to his parents and a good husband and parent.
It appears that none of his family had an understanding or awareness of the extent of the applicant's drug problem before his arrest in the present matter. The affidavits also demonstrate that the applicant has available to him the support of a number of family members who have a close bond to him.
As I stated, s 4(2)(i)(a) of the Act provides that the applicant must not be granted bail unless I am satisfied that exceptional circumstances exist which would justify the grant of bail to him. If I were satisfied that such exceptional circumstances have been made out by the applicant, s 4(2)(d)(i) of the Act provides that I should nonetheless refuse bail if I am satisfied there is an unacceptable risk that the applicant, if granted bail, would fail to answer his bail, would commit an offence while on bail or would interfere with witnesses or otherwise obstruct the course of justice.
The Act does not define what are exceptional circumstances. Obviously in order to be exceptional the circumstances must be such as to take the case out of the ordinary so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charges against him.
It is recognised that exceptional circumstances may in an appropriate case be constituted by a combination of a number of circumstances relating both to the nature of the prosecution case against the applicant and the personal circumstances of the applicant.
Mr Grace of Her Majesty's Counsel, who appears on behalf of the applicant, relies on a combination of five factors which he submitted taken together constitute such exceptional circumstances.
First, he has relied on the prospect of delay before the disposition of this matter at trial. If the applicant were committed to trial it is realistically estimated that any trial would not take place until early next year, so that there would be a delay of a period of some 15 months between the applicant's arrest and the date of his trial.
Mr Grace submitted that such a delay would constitute a significant proportion of any non‑parole period imposed on the applicant in respect of the drug trafficking charges should he be convicted on those charges.
Secondly, Mr Grace relied on the applicant's long‑standing addiction to methylamphetamine. He noted that treatment is now available to the applicant through CISP. The applicant apparently successfully completed CISP in 2011 so that Mr Grace submitted that there is cause for some optimism in that regard.
In that connection Mr Grace also, as a third factor, referred to and relied on the support that is available to the applicant from the members of his close‑knit family. He submitted that that support, as illustrated in the affidavits, will assist in the rehabilitation of the applicant.
Fourthly, Mr Grace relied on the fact that the applicant has now been in custody for four months. Except for a short period of custody in 2009, this is his first time in prison, and that he submitted would have been sufficient to have developed in the applicant an appropriate insight into his drug addiction problem and his offending.
Finally, Mr Grace relied on the applicant's sound work record. His family members have indicated that he has a history of working hard and productively in the family business and in his own business.
In response, Mr Hardjadibrata, who appears on behalf of the respondent, submitted that the circumstances relied on by Mr Grace are insufficient to constitute exceptional circumstances in the context of this case. Mr Hardjadibrata pointed to the seriousness of a number of the charges that have been brought against the applicant. In particular he submitted that the prosecution case against the applicant on the drug trafficking charges is strong. In addition the applicant faces 18 charges of handling stolen property and he contended an inference might well be drawn from the amount of such property that was found at the applicant's premises that he must have known of its origins.
In addition, Mr Hardjadibrata submitted that notwithstanding the expected delay between arrest and trial in this matter it could realistically be expected that if the applicant was convicted his non‑parole period would be well in excess of that period of delay. Mr Hardjadibrata pointed out that the applicant has had a previous opportunity to avail himself of rehabilitative services and that indeed at the time of his arrest he was serving a CCO.
In that respect Mr Hardjadibrata noted that the alleged offending in this case took place while the applicant was not only serving that Order but also that he was on bail so, that the court could have little confidence that he would not re‑offend should he be released on bail in these matters.
Finally, Mr Hardjadibrata submitted that the family support which is available to the applicant would be of little assistance given that the family has not yet detected the substantial level at which the applicant used drugs and had drugs available to him.
In my view each of the circumstances relied on by Mr Grace are relevant to the question as to whether in this case exceptional circumstances have been made out. In an appropriate case such factors might collectively amount to exceptional circumstances. However those factors must be considered and evaluated in the context of the particular case that is before the court.
In this case the offending that is alleged in the charges is serious. Mr Grace has realistically conceded that the case against the applicant on the drug trafficking charges is strong. That concession I think was inevitable.
I am not prepared to accept Mr Hardjadibrata's submission that I should regard the prosecution case on the handling charges as strong. In my view at this early stage there is insufficient material available for me to so characterise the case in relation to those charges. However at the same time I would certainly not characterise the case against him as being weak.
Thus at this stage the applicant is in custody on a number of charges and in particular on serious drug trafficking charges in which the case against him is strong.
The availability to the applicant of CISP is a relevant factor, but in this case in my view it is of limited weight. At the time of the alleged offending the applicant was already subject to a CCO with a condition that he undergo treatment for drugs. He has previously had the benefit of CISP. However notwithstanding those opportunities it would appear that the applicant continued to abuse drugs and to be in possession of a very substantial amount of drugs in his residence at the time of his arrest.
In the same way I am of the view that the evidence of the family members as to the support that they would be prepared to provide to the applicant should he be released on bail is of limited weight. Without hesitation I accept that each member of his family is sincere in their desire to support and assist the applicant in relation to his problem. And it is most commendable they have stood by him in the circumstances. However it is clear that over a substantial period of time the applicant has indulged in a significant habit of drug abuse without it coming to the attention of his family members. It is relevant that at the time of his arrest the applicant was found in possession of a large quantity of drugs and that an even larger quantity of drugs were on display in his bedroom and in the living areas of his house without those matters being evident to the members of his family.
In those circumstances, with the greatest of respect to the sincerity of his family members, I can have little confidence that the family would be in a position to realistically guide and support the applicant away from his habit and from the conduct in which he was engaging at the time of his apprehension.
As pointed out by Mr Grace, this is the first time in which the applicant has spent a period of time in gaol except for a brief period some years ago. It would be hoped that his time of incarceration has had a salutary effect on him, particularly as a wake‑up call to him that at this time of life it is time for him to turn a new page and to put his family first and his drug habit well away.
However there is at the moment little evidence available to me that the applicant genuinely has yet gained that insight. Further, and to be realistic, he has a long‑standing and deeply entrenched drug habit which it would seem has returned, notwithstanding that he has had the advantage of a rehabilitative program.
As I stated, on the face of it the prosecution has a strong case to the effect that that habit has caused him to engage in trafficking large quantities of illicit drugs.
Those factors in my view diminish the force of the proposition that the effect of the last four months' incarceration is such as to give to me the assurance that I need that if he were released on bail at this stage he would not re‑offend.
At the same time it is, I consider, particularly significant that at the time of the alleged offending in this case the applicant was subject to a CCO and was on bail. Those factors indicate to me that the prospect of court proceedings hanging over his head have not had the desired effect of deterring the applicant from engaging in his drug habit and in associated conduct.
It is relevant in that regard to note that the applicant does have a reasonably substantial previous history involving drug trafficking and firearm related offences. Those factors cause me to have a real concern as to whether the applicant could successfully remain out of trouble and desist from the type of conduct in which he was engaging should he be granted bail.
The anticipated delay between arrest and trial is a matter of concern to me and it has been to this Court for some time. However, regrettably, it is not out of the ordinary. Mr Grace has correctly conceded that if the applicant is convicted on the drug trafficking charges any non‑parole period would exceed the period of that delay. That concession, as I say, is realistically made.
In the end for those reasons, and notwithstanding the comprehensive and forceful submissions made on his behalf by Mr Grace, I regret to say that I am not satisfied that exceptional circumstances have been made out which would justify the grant of bail to the applicant at this stage.
Further, in the circumstances I am satisfied that if he were released at this stage the applicant would constitute an unacceptable risk of re‑offending while he was on bail. For those reasons I refuse the application for bail.
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