Director of Public Prosecutions v Sultana No. 2

[2020] VCC 1140

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00626

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN SULTANA

---

JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2020
DATE OF RULING:	28 July 2020
CASE MAY BE CITED AS:	DPP v Sultana No. 2
MEDIUM NEUTRAL CITATION:	[2020] VCC 1140

REASONS FOR RULING
---

Subject:  CRIMINAL LAW

Catchwords:  Application for revocation of bail; Respondent contravened conduct conditions of bail by breaching curfew and using a drug of addiction; Bail revoked.

Legislation Cited:                  Bail Act 1977.
Cases Cited:  DPP v Sultana [2020] VCC 951.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Devlin	Office of Public Prosecutions
For the Respondent	Ms J. Willard	Gleeson & Associates

HIS HONOUR: 

1This is an application for the revocation of Brendan Sultana's bail. 

2On 1 July 2020, her Honour Judge Cohen granted conditional bail to Mr Sultana and in so doing gave detailed reasons[1]. These reasons should be read in conjunction with her Honour’s decision.

[1] DPP v Sultana [2020] VCC 951.

3The respondent is charged with the offences of aggravated burglary, two charges of rape and one charge of sexual assault arising out of an incident alleged to have occurred on the evening of 27 August 2019.

4Her Honour set out the circumstances associated with those allegations at [11] to [13] of her Honour’s reasons and I need not repeat them here. 

5Although the respondent was formally interviewed by police on 31 August 2019, he was not charged with these offences until on or about 27 February 2020 at which time he was remanded in custody.

6In granting bail, her Honour found that there was a compelling reason justifying the grant of bail and that the respondent did not pose an unacceptable risk if released on bail.

7Bail was granted subject to the following conditions:

·That he reside at 10 Bennett Court, Wangaratta and not leave Victoria.

·That he not leave his place of residence between the hours of 7pm and 8am each day and must attend the front door upon police request. 

·That he report to Wangaratta police station each Monday, Wednesday and Friday.  The time of attendance was between 7pm and 8am,  although that reporting was to be operational after COVID-19 restrictions had been lifted by the Victorian Government.

·He was not to enter the suburb of Broadmeadows other than to attend court or the police station.

·He was not to contact prosecution witnesses, and to provide the informant with any current or a new mobile phone number.

·He was to abide by any intervention order currently in place, and he was not to use any drug of addiction unless prescribed by a medical practitioner.

8I should make it plain that s 18A of the Bail Act 1977 (‘the Act’) confers a specific right of appeal to the Director with respect to a bail decision to the Supreme Court.  Her Honour's decision was not the subject of appeal.  The applicant now alleges, however, that the respondent has breached the conditions of his bail and as I will explain, failed to appear on summons in respect of a contravention of a Community Corrections Order (‘CCO’), and submits his bail should be revoked.

9The power to hear and determine an application to revoke bail is set out in s 18AE and s 18AF of the Act.

10Her Honour Judge Cohen retired from this Court on 3 July 2020 and it is therefore not practical to have this application determined by the same decision-maker.

11That said, I should indicate that I will adhere to the original findings of fact her Honour made in granting bail and which were the subject of detailed and published reasons.

12.This application is in no sense to be regarded as an appeal from the original decision. I am concerned with the much more narrow question as to whether the applicant can demonstrate that the accused's bail should be revoked because he has failed to adhere to the conditions of his bail.

12Mr Devlin, who appeared on behalf of the Director submitted that Her Honour had expressed some misgivings when granting bail and had accordingly imposed strict conditions which were designed to mitigate the prosecution's concerns as to the unacceptability of risk. The curfew condition and the drug condition were both cases in point.

Evidence on the application

13Mr Devlin called two witnesses on the application.  The first was Senior Constable Graham Weldon from the Wangaratta Highway Patrol. 

14Mr Weldon indicated that he was on traffic duties on 19 July 2020 in the Wangaratta area at around 7:20pm when he observed and intercepted a car driven by Mr Sultana.  He spoke to Mr Sultana who produced a valid driver's licence.  He required him to undergo a preliminary breath test which was negative, and he also required him to undergo a preliminary drug test which was positive as to the possible presence of methylamphetamine or MDMA.

15At the time Mr Weldon intercepted Mr Sultana's car, there were three other people present in the car. One of them was Ms Prince, the person referred to by her Honour Judge Cohen as Mr Sultana's current girlfriend, and also Danielle Waterson and Daniel Seiko.  Mr Weldon indicated that both Mr Seiko and Ms Waterson were people who had previous criminal convictions, in particular Mr Seiko had a history of both drug use and drug trafficking, and Ms Waterson had matters pending as to the possession of methylamphetamine.

16Mr Sultana was taken back to the police station and a further test was conducted with respect to the possible presence of drugs in his system.  That test was positive and the sample obtained was forwarded to the Victorian Institute of Forensic Medicine.  It was there analysed by a toxicologist, Ms Jessica Fernandez, who provided a report of 24 July 2020 which confirms the presence of methylamphetamine in the sample provided.

17As I have indicated, the time of interception was 7:20 pm and it followed that Mr Sultana was approximately 20 minutes outside his curfew.  He was charged in respect of not having an alcohol interlock device in his car as he was required to do and also in respect of not changing his address with VicRoads.  He will be summonsed in respect of those matters.

18In cross-examination, Mr Weldon conceded that the area where he intercepted Mr Sultana was close to Bennett Court where Mr Sultana was required to reside and that he had otherwise cooperated with Mr Weldon.

19The second witness called by Mr Devlin was the informant, Detective Stephen Harvey.  Mr Harvey indicated that Mr Wayne Hind, who had given evidence on the original application, had indicated he was prepared to notify police if Mr Sultana had not complied with his curfew. Mr Harvey said that Mr Hind had not contacted police as at 7:20pm on 19 July, that is, by the time of interception by Mr Weldon.

20In cross-examination, Mr Harvey indicated that he was aware that a number of checks had been conducted at Mr Sultana's address and that he had otherwise appeared to have been in compliance with his bail.  He could not say how many checks were actually conducted, albeit that it was a number.

Applicant’s submissions

21What flows from the evidence called by Mr Devlin is what he submits are two identifiable breaches of the conditions of the respondent's bail.  The first is the breach of the curfew by 20 minutes or so, and the second is the use of a drug of addiction, in particular the use of methylamphetamine.

22In addition, it was alleged that Mr Sultana was due to appear before her Honour Judge Cannon on 22 July 2020 and that he had failed to do so after being specifically directed to do so by his legal advisors.

23Mr Devlin also submitted that this application needed to be assessed against the respondent's background of what he contended were consistent failures to comply with court orders, such as family violence intervention orders, CCOs and two failure to appears in his prior convictions in respect of bail. Those matters are set out in Mr Sultana’s prior convictions and referred to in the original bail decision.

Respondent’s submissions

24Ms Willard, who appeared on behalf of the respondent, argued that the offending alleged on 19 July 2020 was not nearly as serious as the offending with which Mr Sultana must proceed to trial.  His curfew condition was breached, it was conceded, but only by a matter of 20 minutes or so. 

25The presence of methylamphetamine in his system was, as I understood it, acknowledged as being concerning, but it was submitted that the circumstances were such as not to warrant the revocation of his bail, particularly given that there is no evidence that he has not otherwise complied with his bail, and that given the pandemic he would likely remain in custody for a lengthy and uncertain period if bail were revoked.

26As to the failure to attend in respect of the CCO contravention hearing, Ms Willard submitted that was likely the result of a misunderstanding that came about through a miscommunication with his legal advisors.  Mr Sultana acted very quickly by attending at the police station and asking to have that warrant executed in the appropriate way.

27It was submitted that Mr Sultana’s failure to attend court at that time was not an attempt to avoid justice, nor was it a contemptuous breach of a court order of the kind that it might be suggested Mr Sultana has previously committed.

Consideration

28In considering these matters, I should say that when the respondent was granted bail on 1 July 2020 it was, I accept, with some misgivings.  Her Honour expressly stated that she was sceptical of Mr Sultana's attitude to compliance with court orders.  Indeed, her Honour said at [56]:

In considering the evidence before me, I have some concern that the applicant may commit further offences, but not of a serious enough nature to warrant depriving him of his liberty for the uncertain time involved until his trial, when there can be conditions imposed to limit the prospect of further offending generally, and also the prospect of his contacting witnesses in the trial.

29The misgivings, scepticism and concern referred to by her Honour resulted in the imposition of bail with strict conditions that necessarily demanded strict compliance.  Unfortunately, the respondent has failed to strictly comply.

30I would be loath to revoke Mr Sultana's bail simply on the basis that he was 20 minutes outside his curfew.  In my view it is of no moment that Mr Hind had not contacted police by that time. There is no evidence that Mr Hind was even aware that the respondent was late. It is also of some significance that the respondent does not seem to have been asked why he was late and whether, in the circumstances, he had a reasonable excuse.

31I would also be loath to revoke his bail on the strength of what might well be a misunderstanding with his legal advisors as to the contravention hearing. Moreover, steps were immediately taken to rectify the situation.

32On the evidence before me, the breach of curfew condition, such as it is, and the failure to attend the contravention hearing do not justify the revocation of the respondent’s bail.

33The presence, however, of methylamphetamine in the respondent’s system is a different matter.  Ms Willard indicated that Mr Sultana has an appointment to have an alcohol and drug assessment on 12 August 2020.  In my view, having regard to Mr Sultana’s history, that really is too little, too late.

34Although there is no obvious connection between methylamphetamine use and the rape allegations that give rise to the trial, there is, in my view, a very real risk now that the respondent will continue to use methylamphetamine and commit further offences on bail. He has a ten year criminal history consisting of violence, family violence, serious driving offences, bail offences and abject failures to comply with Community Correction Orders.

35Now he has used methylamphetamine only a short time after being released on bail. Ms Willard characterised the breach as a relapse. However it is characterised, it is, in my view, a recipe for disaster and constitutes an unacceptable risk to the community.

36I have no doubt that if it had been suggested to her Honour at the time of the original bail application, that Mr Sultana was using methylamphetamine, he would have been found to have been an unacceptable risk. Her Honour sought to mitigate that risk through a specific condition – the breach of that condition renders revocation of his bail necessary.

37Accordingly, I am satisfied that the application should be granted and that Mr Sultana's bail should be revoked. 

38Mr Sultana will be remanded to appear before her Honour Judge Cannon on 6 August 2020 at 10:30am in respect of the contravention. 

39The nominal date for this matter remains in place, being 3 May 2021, but I note that it is subject to case management and should be before this Court well before that time for the purposes of pre-trial applications. If it is at all possible to hold the Special Hearing in this matter in the near future that would be in everyone’s interests.

40The matter regarding Judge Cannon is the subject of a separate bail undertaking.  In the ordinary course I would not revoke that, Ms Willard, but I wonder whether it is in your client's interest that that be done.  Do you want to say anything about that.

41MS WILLARD:  It would be in his interests to revoke the bail in respect of that matter.

42HIS HONOUR:  Yes, all right.  Well having regard to that I will also revoke his bail with respect to the contravention hearing that is listed on 6 August.

43The effect I think of all of that, Mr Devlin and Ms Willard, is that both matters come before Judge Cannon on 6 August, that is to say, there will be the contravention, but this matter will be there also.  I think that is best in the sense that her Honour can make orders with respect to the trial matter if any opportunity opens to manage the trial matter.  Otherwise, on 6 August, it can be simply adjourned to that administrative date on 3 May 2021.

‑ ‑ ‑