Applications for bail by Mahoney and Gomide
[2018] VSC 66
•19 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0009
S CR 2018 0017
| IN THE MATTER of an application for bail by Martin MAHONEY |
| IN THE MATTER of an application for bail by Pedro GOMIDE |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 February 2018 |
DATE OF JUDGMENT: | 19 February 2018 |
CASE MAY BE CITED AS: | Applications for bail by Mahoney and Gomide |
MEDIUM NEUTRAL CITATION: | [2018] VSC 66 |
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CRIMINAL LAW – Applications for bail – Co-applicants – Show cause situation – Drug trafficking offences – Applicants alleged to be in possession of illicit drugs while travelling to a music festival together – Bail refused to Mahoney but granted to Gomide.
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APPEARANCES: | Counsel | Solicitors |
| For Mahoney | Mr J Cantor | Ellinghaus and Linder |
| For Gomide | Mr T Lavery | MG Wardell Barrister & Solicitor |
| For the Respondent | Mr M Aitken | Victoria Police |
HIS HONOUR:
On the 9 February 2018 I heard applications for bail by Martin Joseph Mahoney and Pedro Gomide. I refused Mahoney’s application but granted Gomide bail. I said I would provide written reasons later and I do so now.
Alleged Offending
On 17 January 2018, the applicants were approached by police investigators at a service station in Warrenheip. Mahoney advised investigators that he and Gomide were on their way to the ‘Rainbow Serpent Festival’, and that he was engaged as a contractor for the event to supply tents and equipment through his business ‘Psyclone Tents’.
A search of Gomide located a zip-lock bag containing brown powder, two tablets and $1,369.25 cash. A spot test of the tablets and brown powder indicated that they were both amphetamine.
A search of Mahoney located a zip-lock bag containing white powder, a folded up business card containing white powder, $189.80 cash and what the prosecution alleges is a ‘tick-list’ setting out various names and corresponding amounts of money.
A search of the vehicle, which was registered to Mahoney’s business ‘Psyclone Tents’, located, inter alia, the following:
· Four envelopes containing zip-lock bags with large quantities of white powder;
· Two zip-lock bags containing white powder;
· Two zip-lock bags containing a black crystal-like substance;
· Two zip-lock bags containing a brown substance (alleged to be ‘hashish’);
· Two drink bottles containing a liquid substance (alleged to be ‘GHB’);
· 84 grams of cannabis;
· Two boxes of zip-lock bags;
· One set of electronic scales;
· $10,705.00 cash (Australian currency);
· A pouch containing identification for Gomide and $187.40 cash; and
· $6,200.00 cash (US currency).
The applicants were arrested and remanded in custody and charged with the following offences:
· Trafficking cocaine
· Possessing cocaine
· Trafficking amphetamine
· Possessing amphetamine
· Trafficking MDMA
· Possessing MDMA
· Possessing cannabis
· Possessing hashish
· Dealing with property suspected of being proceeds of crime
On 31 January and 1 February 2018, the following additional charges were laid against both applicants:
· Trafficking ketamine
· Possessing ketamine
· Trafficking LSD
· Possessing LSD
Mahoney made a no comment interview.
Gomide advised police he had no knowledge of any drugs in Mahoney’s vehicle and had only been in the vehicle because he was getting a lift to the event. Gomide advised police that he paid $400 for the brown substance in his pocket, that the tablets were vitamins, that the US currency was his, and that the money found on his person was payment for a gig he had worked at on 1 and 2 January 2018.
Personal backgrounds
Mahoney
Mahoney is 35 years old and prior to his remand, resided in Carlton, with his long-term partner, Lisa Ariganello at a property owned by Mahoney’s mother, Janet Mahoney.
Janet Mahoney received a kidney transplant on 29 January 2018. Ms Ariganello has been her primary carer since the operation, a role which Mahoney intended to take over if granted bail.
Mahoney has a strong employment history, and prior to his remand, was operating a business, ‘Psyclone Tents’, in conjunction with a business partner.
On 6 May 2011, Mahoney was convicted at the Melbourne Magistrates’ Court of trafficking cocaine, trafficking a drug of dependence (2 counts, drug not named), cultivating cannabis, possessing a drug of dependence (drug not named), possessing cannabis, possessing ecstasy, possessing amphetamine, possessing ketamine, possessing a prohibited weapon without exemption/approval, storing an unauthorised explosive without approval and dealing with property suspected of being proceeds of crime.[1] The applicant received a three-month suspended sentence and a fine.
Gomide
[1]Exhibit JSD-2 to Affidavit in Support, 25 January 2018.
Gomide is a 36-year-old Brazilian national who is a permanent resident of the United States. He has been in Australia on a temporary entertainment visa since 26 December 2017. That visa expires on 26 February 2018. Whilst in Australia, Gomide has been engaged in work as a DJ and has been residing with a friend, Matthew Bonner, in Brunswick. Gomide and Mahoney have known each other since meeting at a music festival in America in August 2017. No criminal history is alleged against Gomide.
Applicants’ cases for bail
Mahoney
Mahoney submitted that cause was shown, and that with appropriate bail conditions, he was not an unacceptable risk based on:
(a) Availability of drug counselling – Mahoney, who admitted to having been a long term polysubstance drug user prior to his arrest, could receive drug and alcohol counselling from Denise Abadee of ‘AOD Assessment, Referral, Counselling and Treatment’, if granted bail.[2] Ms Abadee gave evidence that the treatment regime would include referral to a psychologist and a pain and addiction specialist,[3] random supervised urine screens, and bi-weekly counselling, with a focus on maintaining abstinence, harm minimisation and relapse prevention.[4] When asked whether it would be preferable that Mahoney be placed in an in-house service, she said there are long waiting lists for places like Odyssey House and Windana.[5] Ms Abadee said she would be able to provide the structure and the support that Mahoney needs whilst he is providing his mother support as well. She also said that in-house services are typically of a 1-3 month duration but are not terribly effective after one month.[6]
[2]Ibid [27].
[3]Ms Abadee said Mahoney was self-medicating with marijuana for an arthritic condition.
[4]Exhibit JSD-2 to Affidavit in Support, 25 January 2018 at [27]–[28].
[5]Transcript of Proceedings, 9 February 2018, 52.
[6]Transcript of Proceedings (‘Transcript’), 9 February 2018, 53.
(b) Carer responsibilities – Mahoney’s mother has recently been discharged from hospital after having undergone surgery for a kidney transplant.[7] Currently, Mahoney’s partner, Ms Ariganello, is undertaking the carer responsibilities, which involves taking Dr Mahoney to her appointments each morning at hospital. Ms Ariganello gave evidence that this has taken its toll on the family, it being difficult for her to manage her business, ‘Mosaic Productions’, while also undertaking carer responsibilities.
[7]See Affidavit in Support of Jack Scott Dalziel, 2 February 2018.
(c) Ties to the jurisdiction – Mahoney’s partner and mother live in Victoria and he operates the business ‘Psyclone Tents’.[8]
[8]Ibid [11](a).
(d) Suitable accommodation – Mahoney is able to continue residing at the Carlton property owned by his mother.[9] Prior to her hospitalisation, his mother did not reside at this address.[10]
[9]Ibid [16].
[10]Ibid [21].
(e) Family support – Mahoney has a good relationship with his mother, who is strongly motivated to support and encourage him to receive assistance in the community.[11] The applicant’s partner of seven years, Lisa Ariganello, who gave evidence, is also committed to assisting the applicant.[12]
[11]Ibid [17].
[12]Ibid [18]–[19].
(f) Availability of employment – Mahoney has a strong employment history, including working for several years with a removalist business ‘Man with a Van’, and also working in logistics and coordination at various music and lifestyle festivals. Prior to his remand, Mahoney and his business partner, Toulose Tranks, were operating the business ‘Psyclone Tents’.[13] Mahoney would be able to continue co-running this business, if bail was granted. He submitted that continuing to take on the sole responsibility of operating the business is too onerous for Mr Tranks.[14]
[13]Ibid [24]–[25].
[14]Ibid.
(g) Provision of a surety – Mahoney’s mother is able to provide a surety of up to $300,000.00.[15]
[15]Ibid [34].
(h) Medical condition – Mahoney suffers with ankylosing spondylitis, which is a form of chronic inflammation of the spine and sacroiliac joints.[16] However, it was not submitted that he is foregoing necessary care for this condition whilst in custody.
[16]Ibid[11](h).
(i) Compliance with court orders – Mahoney has no history of breaching court orders, and has previously successfully complied with bail conditions.[17]
(j) Issues with prosecution case – Mahoney submitted that the following matters are in issue: the nature and quantity of substances located by police, trafficking, and the origin of other items located in the vehicle forming the basis of charges.
(k) Likely delay – Mahoney submitted that forensic testing was likely to cause significant delay in the preparation of the prosecution brief.[18] The Informant gave evidence that once the applicant indicates a plea of not guilty at the contest mention, which is unlikely to be held for at least the next two months, the items will then be sent for fingerprint, DNA and drug analysis. Fingerprint testing would then take 2–3 weeks, while DNA and drug analysis would take 3–4 months.[19]
[17]Ibid [11](e) and [32].
[18]Ibid [26].
[19]Transcript, 6.
Mahoney proposed a number of bail conditions with which he was willing to comply. These included reporting to police, submitting to drug and alcohol treatment, the surrender of any passports and not attending any international points of departure.[20]
[20]Ibid [39].
Gomide
I now turn to Pedro Gomide’s case for bail. He submitted that cause was shown and that with appropriate bail conditions he was not an unacceptable risk based on:
(a) Weak prosecution case – there is currently no evidence in support of the proposition that Gomide knew about the drugs that were found in the car.[21] It was submitted that the ‘deeming’ provisions in s 5 of the Drugs, Poisons and Controlled Substances Act 1981 do not, on their face, apply to Gomide as a passenger of the vehicle.
[21]Ibid, [12](k).
(b) Suitable accommodation – Before his remand, Gomide had been living at the house of Matthew Bonner, a music festival organiser, in Brunswick. Bonner gave evidence at the proceeding that he arranged for Gomide to come to Australia to work at the ‘Let them Eat Cake’ festival in early January 2018, and that Gomide could reside at his house should he be granted bail.
(c) Availability of employment – Gomide would be able to continue working if bail was granted.[22] I note, however, that Gomide’s working visa expires on 26 February 2018.
[22]Affidavit in support of Pedro Gomide’s application for bail, 2 February 2018, [12](q).
(d) Flight risk – Gomide submitted he was not a flight risk as he has surrendered his passport to police.[23]
[23]Ibid, [10](f).
(e) Criminal history – Gomide submitted that he has no criminal history, either in Australia or internationally.[24] The Informant gave evidence that criminal history checks with Interpol for Brazil and the United States were pending but, on the application, did not allege that Gomide has a criminal history.
(f) Likely delay – There is a likely delay in the matter because drug and DNA analysis is to be conducted.[25]
(g) Time spent on remand may exceed any sentence imposed – Gomide contended that, given his lack of criminal history, it is possible that even if he pled guilty, he would not receive a custodial sentence.[26] He relied on Gray v DPP [2008] VSC 4, where Bongiorno J stated at [12]: ‘That a person may serve more time on remand than his ultimate sentence is a significant matter on any consideration of bail at common law’.[27]
[24]Ibid, [12](b) and (j).
[25]Ibid, [12](a), (g) and (h).
[26]Ibid, [12](b).
[27]Ibid, [12](f).
The prosecution’s case
The Prosecution opposed both applications on the grounds that the applicants present an unacceptable risk of committing offences whilst on bail, absconding and endangering the safety and welfare of members of the public.
Mahoney
With respect to Mahoney, the prosecution submitted that he has relevant criminal history, being the May 2011 matters that include trafficking offences. Additionally, his current drug use and ties to the entertainment industry through his business Psyclone Tents mean he could continue to commit offences. As for the medical needs of Mahoney’s mother, the prosecution contended that there is a system in place within the family to assist with her medical needs, meaning she will still receive the necessary support if bail is refused.
Gomide
The prosecution submitted that Gomide has no ties to the jurisdiction and is at risk of absconding, despite having surrendered his passport to police. This risk is particularly aggravated, according to the prosecution, by Gomide’s demonstrated access to large amounts of cash. The prosecution also expressed concern, that should bail be granted, Gomide would be able to traffick drugs at various music events he intends working.
Analysis
Mahoney
With respect to Mahoney, I was not satisfied that he had shown cause why his further detention is not justified. I also considered that he posed an unacceptable risk of committing further offences if granted bail.
I gave particular weight to his prior matters, which are of a similar nature to these charges, and include trafficking offences.
Also of serious concern is Mahoney’s long‑standing polysubstance drug abuse. Ms Abadee, the drug counsellor, noted that Mahoney relapsed into drug use about three years ago, and, up until his arrest, was using cocaine, amphetamines, MDMA, ketamine, DMT, hashish and cannabis. He did not seek drug counselling during that period. While it is a step in the right direction that Mahoney now expresses a willingness to deal with his drug addiction, I consider the risk of Mahoney committing further offences remains unacceptably high.
It is apparent that Mahoney’s continued detention will create hardship for his family, given the current care needs of his mother, Janet. However, support is being provided by Mr Mahoney’s long‑standing partner, Ms Ariganello, and this goes some way to ameliorating the difficulties.
Accordingly, I refused bail.
Gomide
With respect to Gomide, I was satisfied that cause had been shown why bail should be granted and that he is an acceptable risk.
There was force in his counsel’s submissions regarding the weaknesses in the prosecution case against him. Gomide was a passenger in the car. Without being linked to the drugs in the car by DNA or fingerprints, it is difficult to see how he could be found guilty of possessing (and therefore trafficking) those substances. The informant gave evidence that forensic testing will take place if and when Gomide formerly enters a plea of not guilty at the contest mention hearing. However, it is not appropriate to proceed on the basis that further incriminating evidence may come to light. In those circumstances, and having regard to the fact that it is not alleged that he has any prior convictions, I considered it appropriate to release him on bail, subject to the following conditions:
1.Attend at the mention hearing at the Magistrates’ Court at Ballarat on 8 March 2018 at 9.00 am, or on an alternate date and time, if so advised by the Office of Public Prosecutions.
2.Reside at [an address in], Brunswick, Victoria.
3.Report to the Officer In Charge of the watch house Brunswick police station daily between 6.00 am and 9.00 pm.
4.Surrender any passport to the Informant within 24 hours of release on bail.
5.Not apply for any passports.
6.Not leave the state of Victoria or attend any international points of departure.
Not contact any witnesses for the prosecution other than the Informant.
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