Application for bail - Huvasi Cayli
[2014] VSC 397
•18 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0105
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Huvasi Cayli |
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JUDGE: | KAYE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2014 |
DATE OF JUDGMENT: | 18 August 2014 |
CASE MAY BE CITED AS: | Application for bail - Huvasi Cayli |
MEDIUM NEUTRAL CITATION: | [2014] VSC 397 |
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CRIMINAL LAW – Bail – Show cause situation – Drug offences – Threatening serious injury – Bail Act 1977 (Vic) s 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Tinney QC | Office of Public Prosecutions |
| For the Applicant | Mr S Bayles | Leanne Warren & Associates |
HIS HONOUR:
The applicant, Huvasi Cayli, was arrested on 27 February 2014. He was charged with trafficking methamphetamine and two charges of threatening to inflict serious injury, those threats having been made to Jeremy Meredith and Michael Barker respectively. He unsuccessfully applied for bail to the Mildura Magistrates’ Court on 3 March and he made a second unsuccessful application to that court on 7 July. He now applies to this court for bail. As a result of being charged with trafficking methamphetamine, he is required to show cause why his detention in custody is not justified pursuant to s 4(4)(ca) of the Bail Act 1977.
The circumstances of alleged offences are contained in a prosecution summary which is an exhibit on the application before me. The charges arise out of a police investigation of a drug trafficking distribution network conducted by a syndicate in the Mildura area. It is alleged that the syndicate was under the control of Joshua Faulkhead and Anthony Moss. They sourced methamphetamine and cocaine from Sydney and distributed it through the Mildura area by using a number of sub-dealers. It is alleged that the applicant was a major sub-dealer in the syndicate. In particular, it is alleged that the applicant, over a course of time, trafficked methamphetamine to three persons, namely, Jeremy Meredith, Michael Barker and Beth Mayly. It is alleged that he supplied methamphetamine to Meredith in 3.5 gram deals each on five separate occasions on credit.
After supplying drugs to Meredith, Cayli then pressured him to pay for them. When Meredith was unable to pay for the drugs supplied to him, the applicant made a number of threats to seriously assault him. In November 2013, the applicant arranged for Meredith to meet with Faulkhead and Moss on a river bank. In the course of that meeting, Faulkhead, who was standing behind Meredith, king-hit him with a clenched fist and then put Meredith on a payment plan to repay the drug debt.
Following that incident, the applicant continued to make a number of threats to Meredith. In a recorded telephone conversation on 18 December, the applicant made the following threats which I quote, excluding expletives, “I won’t hit you like Josh, I’ll knock you the eff out, you understand? I’ll break your jaws in ten different places.”
The materials also contain a transcript of a recording of a telephone conversation between the applicant and Michael Barker on 10 December 2013. It is alleged that Barker also owed money to the applicant for drugs supplied to him. In the course of that conversation, the applicant made a number of threats to Barker, including: that he would knock him out; that he would cave his head in; that he would come to all his houses; that he would knock him out cold; that he would tie Barker up, put him the shed, hose him down and then torture him; that he would burn Barker with an iron; that he would chop one of his fingers off; that he would crush Barker’s face; that he would punch holes in Barker’s head and that he would pump holes all over Barker.
In addition, the prosecution has recordings of intercepts of telephone conversations between the accused and Bethany Mayly, who is also alleged to have been involved in the drug syndicate. In those conversation, the applicant made threats of violence to Mayly in relation to outstanding drug debts owed by her.
While he was in custody at the Mildura Police Station, the applicant became aware that the police held evidence of threats that he had made to Meredith, Barker and Mayly. He contacted Mayly on six separate occasions on the telephone between 3 March and 11 March. After those supervising him at the Police Station became aware of those telephone calls, they prohibited him making any further contact with Mayly. The applicant then demanded that he be permitted to call Meredith and that demand was denied to him.
The applicant is 32 years of age. He has previous convictions between 2003 and 2005 for assault, assault in company and threatening serious injury. On 8 June 2012, he was sentenced by the Mildura Magistrates’ Court to an aggregate term of three months’ imprisonment on charges of aggravated burglary and theft. The applicant is currently located at the Metropolitan Remand Centre, and he is currently awaiting a further committal mention hearing on 29 August next.
The applicant relies on a number of grounds in support of his application for bail. In particular, he has stable accommodation at his parents’ home and he has family support. His brother-in-law, Mr Tanner San, is prepared to provide a surety for him in the sum of $5000.
The applicant has no history of failing to appear on bail and he has strong ties to the Mildura area. Mr San is prepared to provide the applicant with casual employment as a labourer in his electrical business assisting with the installation of solar panels.
It is also contended that as a matter of parity, the applicant is entitled to bail because four of his co-accuseds, who have been charged with trafficking a commercial quantity of drugs and also with firearm offences, have been granted bail in the matter. Those co-accuseds are Peter Rizzica, Salvatore Rizzica, Brett Nagyidai and Anthony Ross.
It is contended that the charges against the applicant are not particularly serious as the prosecution has indicated that he would not oppose an application to a summary jurisdiction hearing if the applicant pleads guilty to the charges. The applicant also relies on the issue of delay since the time of his arrest in February and he has available on appointment for drug and alcohol counselling if he were released.
In her affidavit in opposition to the application, the solicitor for the prosecution states that if the matter remains in the indictable stream, it is likely that a committal will be held in October this year, and, if the applicant is committed for trial, the registrar at the Mildura Magistrates’ Court has advised that the trial could be heard at a Mildura County Court in the first term of 2015.
The solicitor also states that while the applicant does have ties to Mildura, a number of persons who have made statements implicating him in the offending in this case continue to reside in the same area and they are in fear of the applicant. In particular, both Barker and Meredith have made statements, or have participated in interviews with the police. They have pleaded guilty and their cases have been dealt with and on their pleas. Each of them gave an undertaking to co‑operate with the prosecution in the case against the applicant.
The prosecution also takes issue with the proposition that the applicant should be treated in the same way as other members of the syndicate who have been granted bail. In her affidavit, the solicitor states that those persons have been granted bail as a result of a number of factors, including their respective roles in the syndicate hierarchy, their previous criminal histories and because they have made statements implicating co‑accused.
The prosecution opposes the application in this case on the grounds that the applicant has not shown cause why his detention in custody is not justified. In addition, it is alleged that there is an unacceptable risk that the applicant, if released, will commit an offence on bail; will endanger the safety or welfare of members of the public; and will interfere with witnesses or otherwise, obstruct the course of justice.
On the hearing before me today, Detective Senior Constable Jepson, who is one of the informants in the matter, gave evidence. Without rehearsing his evidence at length, he expressed particular concern that if the applicant were released that he might interfere with witnesses in the case against him. He also expressed concern that the applicant might offend if he were released. He pointed out that Faulkhead and Moss have remained in gaol and that there are still drug debts outstanding to the syndicate.
Senior Constable Jepson was therefore concerned the applicant might therefore seek to recover those debts, not only those that are owed to him, but also debts that are owed to the syndicate. Detective Senior Constable Jepson also described some of the circumstances relating to the offences for which the applicant was sentenced in June 2012. In particular, it would appear that the aggravated burglary occurred when the applicant and others entered premises in order to collect a debt and in doing so, they made threats of violence to a female, who was within those premises, including a threat to slit her throat.
In cross‑examination, Detective Senior Constable Jepson acknowledged that because the ringleaders of the syndicate and many other in it had been arrested, the activities of the syndicate had been disrupted, although he disputed the proposition that the syndicate had been dismantled. He agreed that Faulkhead is a large and imposing person who had deliberately participated in acts of violence in the public in order to intimidate people with whom he might deal. He also agreed in cross‑examination that there was no evidence of any act of violence by the applicant to Meredith or to Barker.
He agreed that Salvatore Rizzica, Peter Rizzica, Nagyidai and Ross had all been charged with trafficking a commercial quantity and that each had been granted bail, but he pointed out that in each case, they had, as was required of them, demonstrated exceptional circumstances. Such circumstances included the fact that they had given statements to the police implicating co‑accused in the criminal activities of the syndicate.
In support of the application for bail, the applicant’s brother‑in‑law, Tanner San, gave evidence and he confirmed the availability of employment to the applicant if he were released, such employment would be on casual part‑time basis, working three days a week as a labourer assisting to install solar panels.
As I stated, under s 4(4)(ca) of the Bail Act, the applicant is required to show cause why his detention in custody is not justified. The applicable approach to such an application for bail has been considered by Maxwell P in Re Fred Joseph Asmar.[1] His Honour stated that such an application requires the court to address one question, namely whether the applicant has satisfied the court that his detention in custody is not justified.
[1][2005] VSC 487.
In considering that question, the court is required to have regard to the four unacceptable risk factors that are specified in s 4(2)(d) of the Act. As Maxwell P stated in Asmar, those risks must be at the forefront of the court’s consideration of the justification for the applicant’s continued detention. At paragraph 13 of his ruling, His Honour stated as follows:
“I do not see how the court could be satisfied, as s.4(4) requires it to be, that the accused person’s detention in custody was not justified unless the court was satisfied that there was no unacceptable risk on any of the four grounds.”
Based on those considerations it seems clear, particularly from the submissions before me today, that the two principal concerns with which I must deal are, first, the concern that there is a risk that if the applicant were released he would interfere with witnesses, particularly those witnesses who have either given statements or participated in interviews in which they have stated matters that are adverse to the applicant’s case, and secondly, there is a concern that if the applicant were released that he would offend while on bail.
In relation to the first concern, namely, the risk of the applicant interfering with witnesses, Mr Bayles, who appeared for the applicant, in a very thorough and persuasive submission contended that such a risk is not unacceptable. He submitted that the evidence in support of the existence of such a risk is vague and weak, and that any suggestion that the applicant might interfere with witnesses if he were released is speculative.
In particular, he submitted that the previous threats made by the applicant occurred in the context of the operations of the drug trafficking syndicate which has now been at least disrupted. The principal ringleaders, Faulkhead and Moss, are still in custody. The applicant has been in custody for six months, so that he has been removed from the activities of the drug trafficking syndicate. He submitted in those circumstances the context in which the applicant would now be released would be very different from the context in which he made the threats that are the subject of the charges against him.
In addition, Mr Bayles submitted that the police would be able to monitor the making of any such threats by keeping in contact with both Meredith and Barker.
Notwithstanding the force of Mr Bayles’ submissions, in my view the risk of the applicant interfering with witnesses if he were released is far from theoretical. It must be borne in mind that on the materials that have been put before me the applicant willingly chose to be a member of the drug trafficking syndicate. That syndicate, it would appear, operated on very specific lines. Its leaders enforced rules that had been imposed by Faulkhead, and in particular enforced the payment of debts by acts of violence and threats of violence. It was to that syndicate that the applicant willingly attached himself.
Further, as I have already noted, both Meredith and Barker were the subject of threats of violence made to them by the applicant. In Meredith’s case he was also the victim of an act of violence inflicted on him by Faulkhead after the applicant had induced him to attend a meeting with Faulkhead. The threats made to Barker were, to say the least, of extreme violence, and were calculated to intimidate Barker in the strongest terms.
The applicant is well aware that Meredith has made a statement to the police and that Barker has participated in an interview with the police in which both of them have implicated the applicant in serious offending by him. They have each given undertakings when they were sentenced to give evidence against the applicant, and their evidence, if accepted, would implicate the applicant in serious criminal offending.
Mr Bayles, as I stated, made a submission to me that the context in which those threats previously were made to Meredith and Barker has changed because the syndicate has been disrupted. But as Mr Tinney QC, who appeared on behalf of the prosecution, correctly points out, there is now another significant imperative operating on the applicant, namely, the fact that he faces serious criminal charges against him.
The applicant has demonstrated by his previous conduct that he is prepared to indulge in threats and intimidation in order to achieve the ends which suit him. In my view there is a real risk that if he were released on bail, that he would seek to indulge in the same conduct in order to avoid conviction in this case.
In considering those matters it must be borne in mind that both Barker and Meredith are to some extent vulnerable as witnesses. They have both been subjected to threats already by the applicant, and in the case of Meredith, he has been the victim of violence by Faulkhead in the presence of the applicant.
Of some further concern is the fact that while he was in custody in the Mildura police station the applicant telephoned Mayly, to whom he had also made previous threats, those telephone calls taking place after the applicant had become aware that Mayly and other were prepared to give evidence against him.
While alone those telephone calls would not persuade me that there is an unacceptable risk or would not negate Mr Bayles’ submission there is no unacceptable risk, they do add to the weight of the concerns in this regard.
Finally, the applicant does have previous convictions. The convictions for violence and threats of violence are not recent, having occurred between 2003 and 2005 but they certainly do point to a proclivity by the applicant, albeit when he was younger, to indulge in violence and to make threats. In that context, his conviction in December 2012 is of concern for, as I have already stated, on the evidence before me it appears to have been accompanied by a most egregious threat of violence to a woman and it was conducted in circumstances in which intimidation was practised towards her.
Taking all those matters into account, I am not, on the application before me, persuaded that there is not an unacceptable risk that the applicant will interfere with the witnesses if he were released from custody. In fact, to the contrary on the materials before me, I am persuaded that there is an unacceptable risk that he would interfere with witnesses.
I do not consider that the matters Mr Bayles has raised would sufficiently off-set that concern. In particular, I do not consider the fact that the police might be able to maintain some contact with both Barker and Meredith is sufficient to allay the concern that has been raised by the evidence. Indeed, given the fact that those two have already been the subject of threats, as a matter of reality it is quite possible that they might be too fearful to report to the police if any further threats were made to them.
I turn next to the question of the risk of the applicant offending if he were released on bail. In my view, again, such a risk is not theoretical. As I have already pointed out, on the materials, the applicant was a participant in an organised criminal syndicate and he acted in it as a major sub-dealer of drugs. The syndicate regularly used violence and the threats of violence and, on the evidence before me - and I stress on the evidence before me - the applicant is well implicated in that conduct. If he were released into the community he would be residing and working in the very community in which the syndicate operated itself.
As I stated, Detective Senior Constable Jepson gave evidence that he understands there is still drug debts owed to the syndicate. If the applicant were released there is some concern that he might become involved in enforcing those debts, particularly as both Faulkhead and Moss are now unavailable to do so.
The applicant’s previous convictions add further to the weight of the proposition that the applicant would be a risk of offending and, in particular, his recent participation in the aggravated burglary. In those circumstances, I am not persuaded that there is no an unacceptable risk of the applicant offending, should he be released on bail.
Having considered those matters, I turn to two other matters which were properly raised by Mr Bayles. The first is, of course, the question of delay. The applicant has now been in custody for almost six months and the committal proceeding has still not been heard. There is a committal mention hearing which is due later this month. That delay is a relevant factor. The applicant is, of course, presumed innocent of the charges brought against him and he has now been in custody for almost six months without the matter reaching committal proceeding. At present, I am not persuaded that that factor is sufficient to outweigh the risks to which I have already referred. But the issue of delay is a factor which, in all cases which come before this court, is a matter of real concern. If there was further delay beyond that currently anticipated, particularly if there was further delay of a substantial duration beyond the delay currently anticipated, then the matter may need to be revisited. I would leave that for the future.
Mr Bayles also referred to the question of parity and, as I stated, he referred to Salvatore and Peter Rizzica and Nagyidai and Ross, all of whom have been charged with trafficking a commercial quantity of drugs and each of them have been released on bail. However, as Mr Tinney and Detective Senior Constable Jepson both pointed out, under s 4(2) of the Bail Act, each of them were required to establish the existence of exceptional circumstances and it would appear that in each case each of them was able to do so. As I stated, it appears that each of them have made statements to the police implicating their co-accused in the criminal activities of the syndicate.
In my view in this case, the so-called issue of parity is of little weight. The real focus in an application such as this is on the issue of the risks of the applicant interfering with witnesses and of offending were he released on bail.
Those matters necessarily involve the assessment of matters that are particular to the case of the applicant. While equality of treatment of all accused persons might be desirable, of necessity the circumstances, which relate to each co‑offender, will differ substantially. As I say, in this case, the fact that those released on bail made statements implicating their co‑accused would, I expect, have been a very significant factor in favour of the existence of exceptional circumstances.
However, in the end I come back to the conclusion that I am not persuaded that there is not an unacceptable risk that, if the applicant were released on bail, he would re‑offend and that he would interfere with witnesses. For those reasons, the applicant has failed to show cause why his detention in custody is not justified and therefore, I refuse the application of bail before me today.
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