Director of Public Prosecutions (Cth) v Sun
[2020] VSC 399
•24 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0134
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an appeal by the Commonwealth Director of Public Prosecutions against an Order granting Bail to Haozhou SUN
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| HAOZHOU SUN | Respondent |
---
JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June 2020 |
DATE OF JUDGMENT: | 24 June 2020 |
CASE MAY BE CITED AS: | DPP (Cth) v Sun |
MEDIUM NEUTRAL CITATION: | [2020] VSC 399 |
---
CRIMINAL LAW – Bail – Director’s appeal against Magistrate’s grant of bail – Surrounding circumstances – Insufficient regard to seriousness of offending – Appeal allowed – Bail refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Armstrong | Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Taaffe | Doogue + George, Defence Lawyers |
HIS HONOUR:
Introduction
By Notice of Application to Appeal dated 5 June 2020,[1] the Commonwealth Director of Public Prosecutions (‘the Director’) challenges the grant of bail to Haozhou Sun (‘Sun’) on the following grounds:
[1]The Notice and Affidavit in Support were filed with the Court on 10 June 2020.
1.That the learned Magistrate erred in granting bail to the Respondent in that in all the circumstances of the case the grant of bail was manifestly in error and an order refusing bail should have been made.
2.That the learned Magistrate erred in finding that, pursuant to ss 4AA(1) and 4A of the Bail Act 1977, exceptional circumstances existed that justified the grant of bail.
3.That the learned Magistrate erred in failing to find, pursuant to ss 4D and 4E of the Bail Act 1977, that there was an unacceptable risk that if released on bail the Respondent would:
(a)fail to surrender himself into custody in answer to his bail;
(b)interfere with witnesses or otherwise obstruct the course of justice in any matter; or
(c)commit an offence whilst on bail.
4.That the learned Magistrate erred in failing to have proper regard to the surrounding circumstances he was obliged to consider, as provided by ss 3AAA, 4A and 4E of the Bail Act 1977, and in particular:
(i)the nature and seriousness of the alleged offending, including that these are serious examples of the offences;
(ii)the strength of the prosecution case;
(iii)the Respondent’s personal circumstances, associations, home environment and background;
(iv)the length of time the Respondent is likely to spend in custody if bail was refused;
(v)the likely sentence to be imposed should the Respondent be found guilty of the offences with which the Respondent is charged;
(vi)the evidence of other drug trafficking by the Respondent; and
(vii)the sufficiency of the $50,000 surety.
On 22 May 2020, the respondent was granted bail by a Magistrate at the Melbourne Magistrates’ Court sitting at the Melbourne County Court in relation to two drug–related offences contrary to the Criminal Code1995 (Cth) (‘the Code’).
The allegations against the respondent are that, on 25 March 2020, contrary to ss 11.2 and 302.2(1) of the Code, he aided and abetted the trafficking of a commercial quantity of the border controlled drug methylamphetamine and, contrary to s 400.3(1) of the Code, dealt with money in an amount over $1 million, believing it to be the proceeds of crime.
The applicant was charged and remanded on 25 March 2020. The matter is next listed for committal mention on 13 August 2020.
There are two co-accused in the matter, Jintao Cai (‘Cai’) and Runxiang Shao (‘Shao’). They were also charged and remanded on 25 March 2020 on charges of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to s 307.5 and by virtue of s 11.1 of the Code. Cai is further charged with the same money laundering offence faced by the respondent. Both co-accused are presently in custody. Cai has not applied for bail, while Shao has a bail application listed for hearing on 30 June 2020 in the Melbourne Magistrates’ Court.
Director’s right of appeal under s 18A
The appeal is brought by the Director under s 18A of the Bail Act 1977 (‘the Act’). Section 18A(1) of the Act provides that the Director may appeal to this Court against an order granting bail if satisfied that the conditions of bail are insufficient, or that the decision to grant bail contravenes the Act. The Director must also be satisfied that it is in the public interest to do so.
Section 18A(6) of the Act states:
On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In summarising the principles governing a Director’s Appeal, Weinberg JA in Director of Public Prosecutions vMolinaro stated:
The principles governing the application of s 18A of the Act are discussed in a number of authorities, including Beljajev v Director of Public Prosections (Vic) and Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Johnstone, but mostly usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro. It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.[2]
[2]Director of Public Prosecutions v Molinaro [2017] VSC 624 [7] (citations omitted).
In considering the test to be satisfied on such an appeal, Weinberg JA went on to say:
It was submitted on behalf of the respondent, and not challenged by the Director, that the test on an appeal of this kind, is whether the particular finding of the magistrate that is impugned was ‘reasonably open’. Frankly, I doubt that the words of s 18A should be so construed, almost akin to having to establish ‘Wednesbury unreasonableness’. However, as both parties have proceeded upon that basis, and the grounds of appeal are specifically drawn in those terms, I shall myself decide this appeal in accordance with the test so propounded.[3]
[3]Ibid [8].
The parties agreed that I should decide this appeal on the same basis.
The respondent is charged with a Sch 1 offence within the meaning of the Act, namely, an offence against s 302.2 of the Code involving a commercial quantity of a drug of dependence, the magistrate was required to refuse bail unless satisfied by the accused that exceptional circumstances existed which justified the grant of bail.[4] Further, as in all applications for bail, the magistrate was required to refuse bail if satisfied by the prosecutor that the there was an unacceptable risk that the respondent would, if released on bail:
(a)endanger the safety or welfare of any person; or
(b)commit an offence while on bail; or
(c)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(d)fail to surrender into custody in accordance with the conditions of bail.[5]
[4]Bail Act 1977, ss 4AA(1), 4AA(1A) and (2) and sch 1, item 8 (‘the Act’).
[5]Ibid s 4E(1).
At both steps of the analysis, the magistrate was required to take into account the ‘surrounding circumstances’ as set out in s 3AAA of the Act.
The alleged offending
The charges against the respondent arise from a joint investigation, known as Operation Alleena, conducted by the Australian Federal Police, Victoria Police, Australian Border Force and the Australian Criminal Intelligence Commission into the importation of approximately 250kg of methylamphetamine from Mexico into Melbourne on 11 March 2020. The investigative methods employed throughout the investigation include physical and electronic surveillance and telephone intercepts.
On 14 February 2020, it is alleged that co-accused Cai met with [redacted] in Brisbane to discuss the pending importation of drugs, for which Cai intended to pay $3.75 million. It was agreed that, once imported, a simultaneous exchange of drugs and payment would take place at separate locations in Melbourne. During this meeting, Cai referred to himself as ‘TT’.
On 25 February 2020, the respondent met with [redacted] at the Grand Hyatt Hotel in Melbourne and confirmed that he would provide $1.82 million in cash for the delivery of 125kg of methylamphetamine. During their conversation, the respondent identified himself as ‘Howard’, and indicated that, although he was not in charge of the money, he would receive suitcases containing the cash from another person and would then deliver them to [redacted]. He advised that the cash would be in denominations of $50, wrapped in $10,000 bundles.
On 10 March 2020, Cai again met with [redacted] in Essendon and informed him that he had rented a residential property in Gowanbrae for the purposes of receiving half of the 250kg shipment, with collection of the second half to be arranged at a later date. The rental property had been booked through AirBnB in the name of Cai’s girlfriend from 9 to 31 March 2020 and citing the respondent’s mobile phone number as the contact number. Cai confirmed that, on the day of the delivery, he and another person would be present at the Gowanbrae property to receive the drugs.
On 11 March 2020, a shipping container carrying 400 black tyres arrived in Melbourne from Mexico. Concealed within 60 of those tyres were 121 vacuum-sealed packages of methylamphetamine with a total weight of approximately 250kg. The consignment was intercepted by police and the methylamphetamine substituted with another substance to allow for a controlled delivery to the intended recipient.
On 23 March 2020, Cai and co-accused Shao booked an apartment at the Empire Apartments on A’Beckett Street, Melbourne for 14 days, paying cash for the room. The respondent, on advice from Cai, similarly directed that a third person, Mengyu Bao, to book an additional room at the Fraser Place Melbourne apartments on Exploration Lane, Melbourne and pay cash.
Around 10am on 25 March 2020, the respondent collected two large suitcases containing $1.82 million in cash from a store on Collins Street, Melbourne and carried them to the Grand Hyatt hotel. He met with [redacted] and the two entered a room of the hotel, where [redacted] was waiting. The suitcases were opened and the respondent confirmed that the cash inside was divided into bundles of $10,000. In conversation with [redacted] he said he intended that the drugs be sold in bulk, that ‘TT’ (Cai) would take possession of the drugs and that ‘TT’ was a long-time friend of his since their shared childhood in China.
Shortly after at 10.15am, an authorised controlled delivery of the substituted consignment was made to Gowanbrae property nominated by Cai and unloaded into the garage. Inside the consignment was a wooden crate containing the substituted methylamphetamine packages. Investigators conducted electronic and physical surveillance of the delivery, during which Cai and Shao were allegedly observed to open the garage door of the premises wearing long black rubber gloves and each carrying a hammer before the garage door was closed again. A listening device installed within the consignment captured the sounds of the wooden crate being pried open, as well as conversations held in Mandarin and Cantonese to the effect of the packages being counted and a third person being consulted by phone.
Following notification from [redacted] that the drugs had been delivered, the respondent allegedly left the hotel room with the two suitcases, now empty. A photograph of the cash on a table within the hotel room was taken by investigators following the respondent’s departure.
It is alleged that the respondent and co-accused then met at the Empire Apartments, with Shao transporting four large suitcases taken from the Gowanbrae property and the respondent transporting the two empty suitcases. Cai was arrested while attempting to leave the apartments and Shao was subsequently arrested at his home.
The respondent was arrested on the same day at a car park in Doncaster. He had in his possession $2,000 cash in $50 and $100 denominations, an Apple iPhone and a key and key fob for the relevant apartment at the Empire Apartments. A search warrant subsequently executed at his residence at 19A Tandara Avenue, Doncaster, located an extendable baton and a pillbox labelled with the days of the week, containing a SIM card inside each of the compartments labelled Monday to Thursday. One of those SIM cards matched the telephone number alleged to have been provided by the respondent [redacted] on 25 February 2020.
During their records of interview, both the respondent and Cai declined to answer questions, whereas Shao made a number of admissions, including that he assisted Cai (known to him as ‘Tao Tao’) to rent a hotel room, was present and assisted Cai in opening a large box delivered to a property in Gowanbrae (although he did not observe its contents), transported four suitcases to Empire Apartments and left them in a room on level 27 of that building before leaving.
The respondent’s background
The respondent is a 19 year old Chinese national. At the time of his arrest, he was 18 years old. He is a permanent resident of Australia, having emigrated from China as a 10 year old with his family. Upon the separation of his parents, he remained in Australia with his mother while his father returned to Shanghai. He has travelled to China in the recent past to visit his father. His mother has since re-married.
The respondent completed Year 10 and subsequently completed a pre-vocational course at Box Hill Institute in preparation for seeking employment as an apprentice electrician. He has previously worked casually in hospitality. Prior to his arrest, the respondent was unemployed and was not studying. He was in receipt of Centrelink benefits. He resided with his mother, step-father and a housemate at 19A Tandara Avenue, Doncaster.
The respondent has no criminal history.
Bail determination the subject of the appeal
At the hearing before the Magistrate, bail was opposed by the prosecution. The informant, Federal Agent Marc Coghill, gave evidence in keeping with a filed Statement of Facts. He provided an overview of Operation Alleena, as well as a detailed summary of the evidence relied on in support of the charges against the respondent. As described by FA Coghill, this included meetings and telephone conversations conducted in preparation for the drug importation, the use of multiple telephone services (some of which were falsely subscribed), delivery of the cash payment as pre-arranged by him, statements relating to the alleged syndicate’s intention to sell the drugs ‘in bulk’ and operate a ‘drug business’, and liaising with the co-accused at the Empire Apartments following the transaction.
FA Coghill advised that the investigation is ongoing and that the results of forensic and digital analysis and transcripts relating to surveillance material remained outstanding, although he confirmed that all material would be provided by the date set down for service of the brief of evidence, being 2 July 2020 (after having been extended from 7 May 2020). He later accepted in cross-examination that the investigation may give rise to further charges being brought against additional co-accused and that this had the potential to cause further delay in the proceedings.
In outlining his concerns should the respondent be released on bail, FA Coghill noted that the respondent had a history of travelling to and from China up to four times in the last three years, as recently as February 2019, although he did not dispute that the respondent’s father resides in that country. As to the risk that the respondent would interfere with witnesses if granted bail, FA Coghill referred to telephone intercept evidence which, he said, indicated that the respondent had discussed his movements on 25 March 2020 with other persons suspected of being involved in the alleged offending, giving rise to concerns that he would continue to have contact with those people if granted bail. He further stated there was evidence obtained from the telephone intercepts indicating the respondent was involved in trafficking LSD, cannabis and, possibly, amphetamine, although he is not charged with those offences.
Mr Josh Taaffe of Doogue and George appeared for the respondent. Mr Taaffe submitted that the application for bail primarily relied on three factors: the ‘inevitable delay’ occasioned by the Court’s response to the COVID-19 pandemic; the respondent’s youth; and his lack of criminal history.
In particular, with respect to delay, Mr Taaffe relied on a protocol issued by the County Count of Victoria in response to the COVID-19 pandemic (‘the protocol’). He submitted that, under the protocol, any newly committed trials would be listed in either October 2021 or, more likely, April 2022. The Magistrate commented that, if committed, the respondent might not get a trial until 2023, to which Mr Taaffe added ‘if not 2024’. He noted the possibility that the trial might itself be of a significant duration, given the indication regarding the amount of surveillance material and possible additional co-accused. That delay, Mr Taaffe submitted, was ‘inordinate and unacceptable’, in view of the respondent’s young age. He later accepted that the exact nature of the delay was uncertain at this early stage but questioned how long the respondent should be expected to wait before the delay could be considered to have ‘crystallised’.
In respect of the informant’s concerns regarding unacceptable risk, Mr Taaffe submitted that each of those risks could be rendered acceptable through the imposition of bail conditions, including limiting the respondent’s access to electronic communication devices to one telephone service, in the primary possession of another person, for the sole purpose of contacting his legal representation or police and a no contact condition with respect to any co-accused.
Mr Daniel Johns, for the Director contended that such conditions would not lessen the risk of the respondent contacting alleged syndicate members in the context of his having been accused of possessing multiple SIM cards, obtained with false details, and taking steps to avoid those activities being detected. He further submitted there was a possibility that the respondent could contact others through the internet without the need for a SIM card.
Mr Johns relied on the seriousness of the alleged offending, noting that the allegations involve a very large commercial quantity of methylamphetamine and that the respondent appears to have held a position of some seniority within the syndicate, evidenced by him being trusted enough to have details of the incoming consignment and payment arrangements at least a month ahead of time, and to personally deliver the $1.82 million in cash. Mr Johns submitted that the prosecution case is strong, citing evidence connecting the respondent to both the delivery of the drugs at the Gowanbrae address and payment of cash at the Grand Hyatt hotel, as well as to the final meeting between all co-accused at Empire Apartments. Having regard to those factors, Mr Johns submitted that any time spent by the respondent on remand would be unlikely to exceed a sentence of imprisonment if convicted.
In response, Mr Taaffe conceded that the prosecution case was stronger with respect to the money laundering charge. As to the charge of attempted possession, he submitted that the respondent’s knowledge that the consignment contained methylamphetamine and not a precursor drug was a triable issue.
The parties addressed his Honour on the question of unacceptable risk. The Magistrate then delivered a detailed ex tempore ruling which I now set out.
This is an application for bail. Mr Sun, the applicant, is in an exceptional circumstances position. He must show exceptional circumstances to (indistinct) his release (indistinct) detention custody should be maintained. The factors relied upon are in essence delay, his youth, his lack of history and the potential to have a place to reside.
The delay that is relied upon is the delay which is affected by the court’s response to the Coronavirus event within the community. The court’s response has been to delay the hearing of, in this case, committal proceedings. They are delayed for a number of practical reasons. The first practical reason is the incapacity of the court to allow a substantial number of persons into the court; that is, because the court must comply with the State Health Officer’s directions in relation to persons within the courthouse. There must be health protections for the judiciary and for the administration.
The response of the Magistrates’ Court of Victoria is to continue hearing cases but in teams. That is, only half of the magistrates are available to hear cases; half are not available to hear cases. But those halves rotate. That means that the court dedicates itself to hearing matters of urgency, and is hearing matters of urgency. Those matters might be properly described as applications for bail in the criminal context and otherwise attendance to applications for family violence orders or orders pursuant to the Family Court (indistinct) Act.
That means that the court is not hearing committals but progressing the committal process. We are not hearing committals now until at best December but committals are now being listed for February and March of next year. Of course that is when they have gone to a committal mention. The committal mention in this particular matter is not listed until August. Unless there be a change in the environment, I anticipate that a committal would not be heard until sometime next year. It cannot be accurately identified as to when a committal might be heard. It is really an undefined delay or an indefinite delay not capable of proper estimation until a committal of this nature may heard.
If committed, a trial would necessarily follow. The trial would be in the County Court. The County Court has recently published its protocols in relation to the fixing of trials under an emergency protocol, COVID-19. The analysis of that protocol, without being able to rely upon it for the purpose of being definite in relation to when a trial may occur, indicatively it suggests that a trial may not occur until the accused had been in custody for perhaps three or four years.
I say ‘only indicatively’ because again it is reliant upon the court’s continuing response and any change in the environment in relation to the Coronavirus within the community. It is able to be said that trials are being delayed. As to the exact length of delay, it cannot be specified. But it has to be accepted that the trials currently are being substantially delayed.
If one adds the substantial delay for committal to the substantial delay of a trial, there is a backlog in both courts, the Magistrates’ Court of Victoria and the County Court of Victoria, without being able to estimate specifically or reasonably or determinatively the actual delay. It can only be said that it must be a significant delay.
It is submitted that a court should not even really consider what the delay would actually be until it becomes evident as to that time; that is, until it is clarified, until in fact the emergency no longer exists. One does not know how long the emergency will continue. One cannot predict how long that will continue. It may be to simply wait for that clearness may be such a time but it is an inordinate delay in itself. Though it might be that’ that clarity comes more quickly. It is unable to be identified.
There is material, evidentiary material, that allows this court to say that a trial, if necessary, would probably not occur until the accused has been in custody for a period of time, though not accurately able to be estimated, which may range up to three years or greater than three years. It would be very unlikely to be within two years of his arrest. But as I say, it is an indefinable time.
The applicant is 19 years old. He has no prior convictions. He has the offer of accommodation. I am not dealing with the risk factors at this stage. The Crown case is a strong Crown case and that is taking into account all the circumstances of the case when determining whether exceptional circumstances are made out.
If I could return to what I was saying, the Crown case is a strong Crown case. The Crown allegations· rely on assertion of evidence in relation to the arrangements for payment of money for a substantial quantity of drugs. By ‘substantial’ I mean of 125 kilograms of methylamphetamine of a batch of 250 kilograms. The evidence as alleged relates, as I say, to the arrangements in relation to the payment for such a consignment, the provision of the moneys to pay for such a consignment, the communication with persons who have alleged to have taken the consignment, the capacity to control or direct or make arrangements with others preliminary to the substituted consignment being delivered, the use of methodology to escape detection, and the case in fact relies upon the delivery of an amount of money referred to in taped conversations consistent with the arrangement that was being made.
It is a strong Crown case. It is a strong Crown case on both counts, though it is said that in relation to one of the counts there are issues of knowledge, issues of identification of drug which may raise an issue for the purpose of trial. Even if that be the case, in relation to the single count of the - funded by possession and transfer of money, evidentially it is a very strong Crown case.
It cannot be said that if convicted the accused might realistically expect to be sentenced to a period of imprisonment less than the time that he might otherwise be held in custody if not granted bail. But that is not the only test in relation to the issue of delay in respect of exceptional circumstances. If the delay is so inordinate but more so is so unreasonable, that together with other factors may demonstrate exceptional circumstances.
A person is considered to be innocent until convicted and entitled to that consideration. A 19-year-old should have a trial within a reasonable time. I said that he has no prior convictions. Of course it is suggested that there is evidence that he otherwise had been involved in some style of trafficking. He has not been charged in relation to that.
The combination of delay, youth, his lack of history, notwithstanding the strength of the Crown case, persuades me that exceptional circumstances are demonstrated.[6]
[6]CDPP v Xiao & Ors (Ruling) (Unreported, Magistrates’ Court of Victoria, Magistrate Goldberg, 22 May 2020).
On the appeal, much argument was addressed to the question of delay. I am prepared to accept that there will be significant delay. The way that delay was put on behalf of the respondent was that it would not be possible for a trial to commence by March 2023, or perhaps even March 2024.
That argument was sought to be supported by reference to the County Court protocol. There appeared to be two particularly relevant paragraphs of the protocol. If the protocol remains, paragraph 1.14(f)’ records, ‘New custody trials will be listed from term 4, 2021’, and paragraph 1.21 records, ‘New trial matters will be listed at the back of all existing matters’.
Assuming that committal may not take place until early 2021, at the earliest, and given the possibility that there may be other co-accused, I do not necessarily proceed on the basis that there would have to be one trial or one committal. If it did proceed as early as March 2021, one year would have elapsed between arrest and committal. That would leave open a further delay of two years for the period of three years to be reached.
I accept that this case would not go into the County Court list until after committal. It is not possible to say the number of in-custody cases progressing at the moment or where exactly in the list this case would fall. It may be that the number of in-custody committals would not be as significant as ordinarily would be the case. But that is just another of the matters of speculation arising in the present circumstances for consideration.
I proceed on the basis that it is unlikely that any trial would proceed until the early part of 2023. That delay is unacceptable. Whether the delay may be as long as four years is merely speculative. We do not know whether the list might be reduced by judge alone trials, although this trial will, of necessity, be a jury trial as I proceed on the basis that Commonwealth trials could not be heard by judge alone.
I do not regard the magistrate’s assessment of delay as amounting to error, but I would regard it in general as being somewhat generous. In these cases, as time progresses, much more will be known about the question of delay, and if circumstances change, as many applications for bail as might be necessary can be made. But for present purposes, it is sufficient to say that delay will be significant and need to be taken into consideration as part of the question of exceptional circumstances.
The respondent’s youth and lack of prior convictions are also obviously important considerations. Mr Kevin Armstrong of counsel, who appeared on behalf of the Director, submitted that the magistrate was obliged to have regard to the surrounding circumstances, pursuant to s 4A(3) of the Act. Surrounding circumstances are defined in s 3AAA of the Act. The significant surrounding circumstances relied on were:
3AAA Surrounding circumstances
(1)
If this Act provides, in relation to a matter,
that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
…
(g)the accused’s personal circumstances, associations, home environment and background;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
The Director’s submissions were that the learned magistrate had given insufficient regard to the surrounding circumstances, with a good deal of emphasis placed on the question of delay and whether His Honour was entitled to find as he did. As I say, I am not impressed by that part of the submission.
It was submitted by Mr Taaffe, who appeared on behalf of the respondent, that the findings made by the learned presiding magistrate were open to him and, in particular, that what he said about delay was supported by the County Court protocol.
With respect to the surrounding circumstances, the nature and seriousness of the alleged offending, including whether it is a serious example of the offence, is an important consideration in this case, as I regard the case as a serious example of both offences, and of offences which are themselves serious. The circumstances and seriousness of the offending were made clear before the presiding magistrate, and he referred to the seriousness in his reasons.
The production of $1.82m in cash for the purchase of 125 kilograms of methylamphetamine in circumstances where the importation had been known about by the respondent and his group, and the further commitment to the purchase of a second shipment of a further 125 kilograms demonstrates the group, in which the respondent was a significant player, were engaged in a very serious enterprise and serious drug offending.
The access to $1.82m and the potential for access to another $1.82m remains unexplained. The enterprise was plainly for gain on the whole of the evidence, and it seems reasonable to conclude substantial gain at that. I have reached the conclusion that the learned magistrate gave insufficient regard to the seriousness of the offending, and that if proper regard had been given to those matters, exceptional circumstances would not have been made out.
Although the factors of youth, lack of prior convictions and delay are important, they need to be assessed in a case such as this, in the context of the serious nature of the offending. This is a case where the degree of seriousness of the offending is more significant than the matters which his Honour found amounted to exceptional circumstances.
It follows, having regard to the grounds of appeal that have been set out, that this is a case in which I would say that ground 2 and ground 4 (insofar as it refers to s 4A rather than s 4E) have been made out. And I would, therefore, pursuant, s 18A(6) of the Act, make the following order. I set aside the order made in the court below. That leaves us with bail having effectively been revoked, and I am now obliged to proceed with a fresh hearing in relation to the grant of bail for the respondent.
A matter that was discussed very briefly when I heard the appeal, and perhaps it is set apart from the matters about which there is a fair bit of material set out in the court below, was a matter of some consequence to the respondent, which is that there is no evidence whatsoever that he has done anything other than comply with his obligations under the bail which was granted to him in the meantime. I have regard to that overall, as part of the material.
I suppose the only matter - and not much turns on it - is that an additional charge has been now laid against the respondent, but which does no more than bring his charges in the line with the charges of his co-accused. I do not think it alters the seriousness of the offending at all.
Then, since I am obliged to consider the question of bail afresh, I take into account all the matters that were set out before the learned magistrate and take into account the way that the respondent has behaved since the grant of bail to him. But for reasons which appear from those matters which I have stated on the appeal, I regard the seriousness of the offending as being such that exceptional circumstances have not been made out and bail will be refused.
---
2