Bail application by Fadi Haddara
[2014] VSC 284
•18 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No SCR 2014 0062
| IN THE MATTER of an application for bail under the Bail Act 1977 | |
| FADI HADDARA | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2014 | |
DATE OF RULING: | 18 June 2014 | |
CASE MAY BE CITED AS: | Bail application by Fadi Haddara | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 284 | |
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CRIMINAL LAW – Bail – “Exceptional circumstances”– Delay, availability of appropriate treatment, provision of substantial surety – Risks of re-offending, endangering the safety or welfare of others, and interfering with witnesses – Risks not unacceptable while residing in drug treatment facility – Bail granted on conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Dane QC | Garde-Wilson Lawyers |
| For the Respondent | Mr P Rose QC | Solicitor for Public Prosecutions |
HER HONOUR:
Introduction
The applicant is one of 15 co-accused, charged as part of a police investigation into the trafficking of methylamphetamine (“ice”) and firearms in the western suburbs of Melbourne. The police investigation involved the use of telephone intercepts, purchases of methylamphetamine and firearms by covert police operatives, and the installation of listening and optical devices.
The applicant is currently facing 25 charges, which include: drug trafficking; violence offences, including intentionally or recklessly causing serious injury in circumstances of gross violence, and affray; attempted armed burglary; and numerous firearms offences. He was charged with 17 offences on 18 March 2014, and the remaining 8 offences on 10 April 2014.
Because he is charged with trafficking in a drug of dependence (methylamphetamine) in not less than a commercial quantity, the applicant needs to establish the existence of “exceptional circumstances”, before bail can be granted.
On 9 May 2014, the applicant was refused bail before the Melbourne Magistrates’ Court. Magistrate Harding held that the applicant had not demonstrated exceptional circumstances, and that there was an unacceptable risk of him committing an offence while on bail, or interfering with witnesses.
By notice filed in this court on 12 May 2014, the applicant seeks bail.
The applicant argues that exceptional circumstances are shown because of the following matters:
(a) The nature of the prosecution case;
(b) The likely delay before trial;
(c) The availability of an intensive residential rehabilitation program to address his methylamphetamine usage;
(d) The support of his family, including in the provision of a substantial surety; and
(e) The need for parity with his co-accused.
The DPP disputes that exceptional circumstances have been shown. The DPP also opposes bail on the basis that the applicant presents an unacceptable risk of interfering with witnesses, endangering the safety or welfare of others, and committing further offences while on bail.
The applicant submits that any such risks are not unacceptable, if appropriate bail conditions are imposed, having regard to the following matters:
(a) His limited prior convictions;
(b) His bail history;
(c) His lack of prior convictions for interfering with witnesses;
(d) The availability of 24 hour supervised intensive drug rehabilitation;
(e) The availability of a substantial surety; and
(f) The applicant made himself available for interview with the informant since November 2013 in relation to the incident the subject of the violence charges, and the informant declined to speak to him.
Exceptional circumstances
The Bail Act 1977 does not specify what considerations may be relevant to establishing exceptional circumstances. It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it “should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.”[1] Exceptional circumstances may be established by one particular factor, or (more usually) a combination of factors.
[1]Whiteside [1999] VSC 413 at [10] (Warren J).
The applicant relies on the following matters.
The nature of the prosecution case
There is no doubt that the strength or weakness of the prosecution case may be taken into account, in considering whether exceptional circumstances are established. However, in many cases, it may be difficult for the court to evaluate the strength of that case, given the limited amount of material available at the time of the bail application.
For the purposes of the bail application, the applicant does not really dispute the strength of the prosecution case on the drug trafficking charges, but rather “the size of the case.” He relies upon the fact that only one of the charges places him in an exceptional circumstances situation (being the charge of trafficking a commercial quantity of methylamphetamine),[2] and says that the alleged offending is at the lower level of that offence.
[2]The applicant is in a “show cause” situation in respect of the attempted armed robbery in February 2013, in which he is alleged to have used a knife. The remaining charges all fall within the presumptive entitlement to bail category.
As far as the commercial trafficking charge is concerned, the prosecution case is that the applicant was, either directly or indirectly, involved in the sale of just over 160 grams of methylamphetamine (of 80% purity) to covert operatives during the period from 13 July 2013 and 18 April 2014. The fact that he is alleged to have sold only 7 grams directly, and the remaining 154 grams through associates working under his direction, does not diminish the seriousness of the charge.
A “commercial quantity” of methylamphetamine is anything over 100 grams. A “large commercial quantity” of that drug is anything over 750 grams. I accept that, as far as the sales to covert operatives are concerned, the applicant’s alleged offending is towards the lower end of a “commercial quantity”, and he is not in the same class of offending as somebody charged with trafficking a large commercial quantity. But the fact remains that any amount over 100 grams puts him in an “exceptional circumstances” situation. Further, there is surveillance evidence of his communicating on a daily basis with various drug customers, and of his selling drugs to persons other than covert operatives; that is to say, the specific sales to covert operatives only form part of his alleged drug trafficking.
In the circumstances, I would give little weight to the applicant’s argument about the size or nature of the case, in determining whether exceptional circumstances have been established.
Delay
The likely period that an applicant would spend remanded in custody prior to trial may be relevant to a bail application in a number of ways:
(a) Inordinate delay may constitute exceptional circumstances in itself. There is no point in time at which delay necessarily becomes inordinate or unreasonable; each case turns on its own facts;
(b) Something less than inordinate delay may, in combination with other matters, constitute exceptional circumstances;
(c) It is also well-established that if the time spent on remand is likely to exceed the total effective sentence which would be imposed if the applicant was convicted, that may also be relevant to establishing exceptional circumstances;
(d) The applicant referred to a decision of Nettle JA in Hanna v DPP,[3] which put a further gloss on the principle stated in (c) above. In that case, his Honour commented that “there may … be cases in which a grant of bail is warranted for no more reason than that the likely period of delay is as much or even a significant fraction of the likely non-parole period.”[4] In that case, his Honour found that the time on remand (2 ½ years) was likely to exceed the non-parole period which would be set on conviction, so it was not necessary for him to expand on what a “significant fraction” would be.
[3]Unreported, Supreme Court of Victoria, 9 May 2008.
[4]At [14].
The applicant was remanded in custody on 18 March 2014. The brief of evidence was ordered to be served by 10 June 2014.
The Crown says that most of the brief will be served by that date. The primary evidence to be relied upon by the Crown is statements from covert police operatives, together with telephone intercept, optical and listening device recordings, all of which are expected to be served on 10 June. However, DNA and fingerprint test results, and the transcript of the various audio recordings (some of which will also require translation), will not be available by that date.
A committal mention has been listed for 22 July 2014.
Both counsel accepted that a committal hearing would be likely to occur later this year, with a County Court trial possibly being held in or around September or October 2015. That would be a period of some 18 months since the applicant was arrested.
The applicant says that a “best case scenario” of at least 18 months between arrest and trial amounts to exceptional circumstances, either in itself, or in combination with the other matters relied upon by him. The applicant does not suggest that he might receive a total effective sentence less than that period, but he does argue that such a period would represent a very substantial portion of any non-parole period which he might be ordered to serve.
I do not accept that a period of 18 months is so inordinate as to amount to exceptional circumstances in itself.
I am also not persuaded by the applicant’s alternative argument, based on a comparison between the likely time on remand and the likely length of any non-parole period, for the following reasons.
Even accepting that the final number of charges may well be reduced prior to trial, and that some of the offences are alternatives (for example, the two causing serious injury charges), the applicant faces the prospect of a very substantial period of imprisonment if convicted at trial.
The applicant’s counsel suggested that the total effective sentence which the applicant would be likely to receive if convicted of these offences was 7 years. I agree with the prosecution that, given the number and nature of the current offences, and the applicant’s criminal history, 7 years seems likely to be at the low end of the possible sentence range. But, without a detailed examination of each of the alleged offences and possible sentences, it is not possible to be more precise about the likely total effective sentence. Accordingly, for the purposes of this application, I proceed on the basis suggested by the applicant, namely, that the likely total effective sentence for these offences would be 7 years, with a non-parole period of 5 years.
I am not persuaded that a period of at least 18 months on remand would represent such a significant proportion of a 5 year non-parole period, as to amount to exceptional circumstances in this case.
Although I am not persuaded that a period of at least 18 months is sufficient to amount to exceptional circumstances in itself, such a delay is nevertheless relevant when taken in combination with other factors.
The availability of residential treatment
The prosecution accepts that the applicant is addicted to drugs; he smokes methylamphetamine on a daily basis, and is an occasional user of GHB.
There is evidence that the applicant underwent drug treatment in 2010 and 2011 with St Paul’s Drug and Alcohol rehabilitation services, while on remand for other charges. He has clearly resumed drug usage since that time.
The applicant has been accepted for admission into the Raymond Hader Clinic in St Albans Park, Geelong. It is a private clinic, which offers an intensive 24 hour residential treatment program for persons with substance abuse problems. Some of its patients are there as a condition of bail, most are there voluntarily. The program includes a range of therapeutic activities, from early in the morning until late in the evening. Voluntary patients are permitted to go home on weekends; patients on bail are not. The duration of an initial course of residential treatment is usually 90 days; whether or not treatment continues after that time (either at the clinic, in other supported accommodation, or in the community) depends on the patient’s progress.
The clinic is not a secure facility, in the sense that patients are not physically restricted from leaving. Motion detector cameras record people coming and going from their rooms or the clinic, but the cameras are not monitored around the clock. Patients are not permitted to have phones with them, have no internet access, and may not receive incoming phone calls. Short, outgoing calls to approved numbers have to be placed through staff.
The applicant’s counsel proposed that there be conditions of bail that the applicant reside at the clinic, and abide by all lawful directions of clinic staff. In the event that the applicant was no longer able to reside at the clinic (for whatever reason), he would come back to court and seek a variation of bail (based on the evidence then available to the court).
The prosecution rightly points out that there is no evidence to suggest that the applicant had voluntarily sought treatment for his drug addiction prior to his arrest. But it is not unusual for an accused person’s arrest to be a trigger for their seeking such treatment.
While there is little evidence before me as to the precise relationship between the applicant’s drug usage and his offending, the prosecution does not suggest that it would not be beneficial to the applicant, or to the community, for him to undertake intensive treatment for his drug addiction. Rather, the prosecution’s submissions focussed on the suitability of the clinic as a place of residence for the applicant, because of what happened in another, unrelated case.
Mr Jackson Oppy, the general manager of the clinic, gave evidence of the clinic’s policies in relation to patients who are on bail and breach their bail conditions by leaving the clinic. He said the clinic had a “zero tolerance” policy, and would call police if a patient breached their conditions.
The occasion which is of concern to the prosecution occurred in November 2013. A patient who was on bail absconded from clinic staff, while on a community outing to attend a Narcotics Anonymous meeting. A staff member who was accompanying the group of patients immediately contacted the nearest police station, to notify of the absconding. The staff member did not have the informant’s details with her, which is why she went to the nearest station. The staff member says she understood the police officer to whom she spoke would pass on the information to the informant; the police officer says he was not asked to do that, and did not tell her that he would do so.
As things turned out, Mr Oppy informed the patient’s solicitors of the absconding, but the informant in that case did not learn what had happened for some three months.
In that case, Mr Oppy had undertaken to the court to notify the informant if the patient in question breached their bail conditions. The only explanation Mr Oppy could offer for his failure to contact the informant was the volume of calls he receives in a day, and some apparent confusion about whether the staff were notifying police or he was to do so. I accept that this was a most unsatisfactory incident, but there is no evidence of any similar episodes in the history of the clinic (which has been operating since 1998).
I am going to require Mr Oppy to give an undertaking to the court to personally notify the informant of any breach by the applicant of his bail conditions. If Mr Oppy breaches his undertaking in relation to the applicant, that may well have a serious impact on the clinic’s future suitability as a facility for clients on bail.
Family support and jurisdictional ties
The applicant was born in Lebanon and migrated with his family to Australia in 1984, when he was 6 years old. His mother, sister and two brothers live in Melbourne.
The applicant married his wife in 2001. She lives with their four children at a home in Altona North, which she owns. She is prepared to offer a surety of $200,000, secured by the equity in the family home.
The applicant has a son with his girlfriend, who also lives in Melbourne.
The fact that the applicant has strong family ties to the jurisdiction, and is prepared to risk losing the family home if he breaches his bail, seem to be relevant to the prosecution’s acceptance that he is not a flight risk. They are also relevant, in combination with delay and the availability of treatment, in establishing exceptional circumstances.
Since late 2013, the applicant has been the sole operator of a business called “Melbourne A Class Smash Repairs”. The police allege that he used the business premises as the place from which he sold drugs and firearms. However, it seems that some sort of car repair business is also conducted there. There is no evidence before the court as to the size or income of the business, the number of employees, the applicant’s role in the business, and the like. In the circumstances, I would not treat the possibility of employment in the business as having any particular significance in this bail application.
Parity
The principle of parity is based on the concept of a justifiable sense of grievance, due to the appearance of injustice resulting from different treatment of co-accused. In the context of this bail application, it may be relevant both to the questions of exceptional circumstances and unacceptable risk factors. The principle requires that “where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail application may be dealt with differently.”[5]
[5]DPP vAbbott (1997) 97 A Crim R 19 at 29 (Gillard J).
The court has very little information before it in relation to the custody status of the numerous co-accused.
Although I was told that one of the co-accused, the applicant’s cousin, Zaid Haddara, has been granted bail, I know nothing of the specific charges he was facing or the reasons why bail was granted.
I was told more about another of the co-accused, Khaled Kaddour, who was granted bail by Magistrate Garnett on 30 April 2014. The applicant relies upon this fact to argue that he should be granted bail as a matter of parity.
Like the applicant, Mr Kaddour was in an “exceptional circumstances” situation, because one of the charges involved trafficking in a commercial quantity of methylamphetamine.
The magistrate’s brief order noted that – like the applicant – Mr Kaddour had ties to the jurisdiction, family support, a stable residence, and some sort of (unspecified) treatment available to him.
There is no evidence before me as to the strength of the prosecution case against Mr Kaddour, the precise role he is alleged to have played in the syndicate, or whether it was alleged that there was any relevant unacceptable risk.
However, the limited evidence before me in relation to Mr Kaddour discloses the following significant differences between the applicant and Mr Kaddour:
(a) Mr Kaddour was only charged with a total of 8 drugs and firearms offences (compared with the applicant’s 25 charges);
(b) Mr Kaddour was not charged with being involved in the violence incident, and there is nothing to suggest that there was any evidence of a risk of him potentially interfering with witnesses; and
(c) Mr Kaddour’s prior criminal history was substantially less, both in terms of the number of convictions and the nature and seriousness of offending, than the applicant.
There is nothing in the magistrate’s order to suggest that delay played any role in his decision to grant bail.
In the circumstances, I would give very little weight to the principle of parity in this case.
Conclusion on exceptional circumstances
In coming to the conclusion that the applicant has just made it over the hurdle of “exceptional circumstances”, I have been particularly persuaded by the availability of the intensive, supervised, residential drug treatment program at the clinic. Without that program, the remaining factors (delay, substantial surety and family support) would not have been sufficient to get the applicant anywhere near persuading me that exceptional circumstances exist.
Unacceptable risk factors
The prosecution does not suggest that there is a risk that the applicant would fail to answer bail. However, it argues that there is an unacceptable risk of him:
(a) Re-offending;
(b) Endangering the welfare or safety of members of the public; and
(c) Interfering with witnesses.
There is always some risk if an applicant is released on bail, but the question is whether that risk is so unacceptable that bail ought to be refused. In considering the issue of risk, the court is required (by s 4(3)) to have regard to all relevant matters, including:
(a) The nature and seriousness of the alleged offences;
(b) The applicant’s character, antecedents, associations, home environment and background;
(c) The history of any previous grants of bail to the applicant;
(d) The strength of the evidence against the applicant;
(e) The attitude, if expressed to the court, of any alleged victim of the offence(s) to the grant of bail; and
(f) Any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
The applicant is now 36 years old. He has no history of failing to answer bail.
He has a reasonably lengthy list of prior convictions, commencing in May 2000, when he was 22 years old. However, the vast majority of his convictions are for driving offences. His only prior conviction in relation to drugs was for possessing cannabis, in November 2007.
In May 2000, he was convicted of intentionally causing injury, after punching somebody to the face and head during a fight outside a nightclub at the Crown Casino. He failed to pay the fine of $1,000, and was subsequently placed on a community based order. When he failed to comply with that CBO, he was imprisoned for 10 days.
The applicant’s next conviction for violence was in December 2011, when he received a 6 month suspended sentence for recklessly causing injury. This related to an incident in October 2009, in which the applicant punched a woman with whom he had been having a relationship. She apparently declined to make a statement to police, expressing her belief that the applicant would kill her if she did so.
In March 2012, he received a 4 month suspended sentence for his part in an affray. On that occasion, the applicant went with some friends to a house in Coolaroo, to “rescue” a friend who was allegedly being detained there by the occupants of the house. After an exchange of words between the two groups, shots were fired from inside and outside the house, and several people were shot during the incident. The applicant was not said to have discharged any weapons, or to have known in advance that firearms were likely to be taken to the scene. Nevertheless, he participated in what was a serious affray.
Finally, in November 2012, the applicant was given a 2 month suspended sentence for harassing a witness. This related to an incident in November of the previous year, when the applicant had been applying for bail. After bail was refused, he yelled obscenities and threats to the police informant.
The current violence charges arise out of an incident alleged to have occurred on 23 November 2013, in which the applicant and two other men are alleged to have seriously assaulted Tarek El Houli, the driver of a car which collided with the rear of their vehicle. Mr El Houli has declined to make a victim statement in relation to these matters, or to identify his assailants. I accept that there is strong evidence linking the applicant with this attack. There is also evidence that he asked an acquaintance of his to go to the hospital, to find out whether Mr El Houli had made a statement to police, and that he was aware that Mr El Houli had not done so. Although he has not been charged in relation to any threats to Mr El Houli, I accept for the purposes of this application that he may well have been involved in persuading Mr El Houli not to make a statement.
As far as the risk of threatening other witnesses is concerned, the nature of the current drug trafficking and firearms charges is such that the key witnesses are all covert operatives. There is no suggestion of any unacceptable risk of him threatening those witnesses.
The prosecution has not really put forward any evidence of risk of interfering with any civilian witnesses to the few remaining offences not already referred to.
As mentioned earlier, unlike in some cases involving methylamphetamine addicts, there is no evidence that the applicant goes off and offends spontaneously in an ice-induced state.
Whilst it cannot be said that there is no possible risk of the applicant committing further offences, interfering with witnesses, or endangering the safety and welfare of members of the public, while on bail, I am satisfied that those risks are not unacceptable while the applicant is residing at the Raymond Hader Clinic on strict bail conditions.
For these reasons, I propose to grant bail.
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