DPP v Koumis
[2006] VSC 416
•5 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1541 of 2006
| IN THE MATTER of an Application for Bail : |
| THEODOSIS KOUMIS |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 OCTOBER 2006 | |
DATE OF RULING: | 5 OCTOBER 2006 | |
CASE MAY BE CITED AS: | DPP (VIC) V KOUMIS | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 416 | |
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Criminal Law – Bail – Previous unsuccessful applications for bail - Consideration of exceptional circumstances – Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Cooper | Solicitor for the Office of Public Prosecutions |
| For the Applicant | Mr S. Cash | C Marshall & Associates |
HIS HONOUR:
The applicant (Theodosis Koumis) who is a 58 year old married man with four adult children and is a tiler by occupation, was arrested on 11 April 2006 and charged with a number of drug offences. These included offences committed between 3 March and 11 April 2006 which allegedly involved trafficking in a large commercial quantity of heroin and amphetamine; trafficking in a commercial quantity of heroin; and trafficking in both heroin and amphetamine.
As part of the police investigation, code named "Wahoo" a telephone intercept warrant applicable to the applicant's mobile phones was obtained.
As a result, according to a police report prepared by the informant, Senior Constable Timothy Hayward, a drug network was exposed. It was alleged that two other persons arrested at this time, Tuan Le and Mili Bala, were suppliers of these drugs to the applicant.
Additionally, according to the police report, some eight persons from locations as disparate as the Western suburbs, Geelong, Portland, Hamilton, Ballarat and Mildura were supplied with drugs by the applicant in varying quantities and for varying costs.
The telephone intercepts indicate that codes were being employed by the applicant and the alleged co-offenders in discussing quantities and money.
It is not necessary to detail the individual dealings alleged. At the time of his arrest the applicant and his house were searched. Various drugs and some $1600 in cash were located.
When interviewed by investigating police the applicant denied purchasing drugs from Le and Bala, or supplying drugs to four other alleged co-offenders. He stated that he only supplied a small amount of drugs to help out a few female friends. He also told police that he did not, himself, have a drug habit.
For completeness one other factual matter should be mentioned. On 29 March 2006 the applicant was a victim of an armed robbery perpetrated by his nephew, Con Koumis, and another person, Adam Borg, at premises in St Albans. This was recorded on a telephone intercept applicable to Operation Wahoo.
On 30 March the applicant reported the theft of his mobile phone, wallet and jewellery to Keilor Downs Police. He did not mention two ounces of amphetamine and a quantity of heroin which the police allege was also stolen. The court was informed that the applicant intended to give evidence for the Crown in this matter.
Since his arrest the applicant has on two occasions, namely 27 April and 23 June 2006, unsuccessfully sought bail at the Magistrates' Court.
Having been charged with an offence involving a commercial quantity of a drug of dependence the applicant must, pursuant to s.4(2)(ia) of the Bail Act 1977 satisfy the court that "exceptional circumstances exist which justify the grant of bail."
In seeking to do so, Mr Cash, who argued this application ably on behalf of the applicant, pointed to a number of factors which, it was submitted, constituted exceptional circumstances in this case.
First it was argued, on instructions from the applicant, that the amount of drugs involved in any trafficking did not, in fact, amount to a large commercial quantity.
As Mr Cooper, who appeared on behalf of the Director of Public Prosecutions pointed out, this assertion could be tested upon an analysis of the evidence emerging from the committal proceedings which were scheduled for 20 November 2006. In the meantime the prima facie evidence indicated well organised trafficking of an ongoing nature on a geographically large scale.
Moreover, it was submitted, given the taped intercepts and the partial admissions of the applicant in his record of interview, the Crown case may be categorised as a strong one. Further, this was a case of trafficking in which the applicant played a central role.
In my view the present pre-committal state of the material suggests a strong Crown case of trafficking in a commercial quantity of drugs of dependence.
The nature of the drugs allegedly involved adds to the gravity of the offences, and the material does suggest a well organised central role played by the applicant.
The second point advanced on behalf of the applicant was that he was assisting the police in their inquiry into an armed robbery and would ultimately give evidence for the Crown against the perpetrators. However, the fact is that the applicant is doing no more than providing assistance in a case in which he
was the victim and in which he, perhaps boldly in the circumstances, chose to report to the police.
Thirdly, and linked to the previous submission, it was put that the applicant was suffering the disability of incarceration in a protective environment. Apparently the applicant had reported to authorities at the Metropolitan Remand Centre threats made against him emanating from his nephew Con Koumis and his co-offender, Borg. (The latter has apparently been released from custody, the former is in Port Phillip Prison.)
On the basis of the applicant's assertions, the prison authorities have placed him in protection in Deakin Unit. Evidence of this was given by the prison officer in charge of that unit, Mr Bruce Polkinghorne. The witness also informed the Court that the applicant was one of 100 inmates in the same situation. It transpired that these prisoners were out of their cells for 12 hours each day, had access to an exercise yard, prison industries, a canteen and visitors.
Whilst the applicant may be concerned at his custodial situation, it could not be characterised as extremely or uniquely onerous. Moreover, the Court should not assume that the prison authorities are unable to effectively and efficiently provide for him the protection for which the unit has been created.
Fourthly, a parity issue was faintly raised on the applicant's behalf. It was put that a fellow trafficker, Mili Bala had been granted bail and that his level of culpability was of a similar nature to that of the applicant.
The response of the DPP was to the effect that Bala had only been charged with trafficking simpliciter and that a lesser quantity of drugs were involved.
It is impossible for this Court, on the current state of the material, to determine whether a genuine issue of parity exists.
The applicant took issue with the claims in the police report that there was an unacceptable risk of the applicant not answering his bail and that there was a similarly unacceptable risk that he would commit an offence whilst on bail. (See s.4(2)(d) of the Act.)
Given the applicant's ties to Victoria, through family and property; the support of his family; his offer to surrender his passport and the freezing of a local Bank of Cyprus account holding $14,000, I do not regard the former of the prosecution assertions as being made out.
Nor, in light of the inevitable future police scrutiny, the applicant's lack of significant prior convictions and his capacity to obtain work, am I satisfied of the latter submission.
In DPP v. Cozzi[1], I expressed the view that in considering exceptional circumstances lack of any positive findings in relation to the factors listed in s.4(2)(d) of the Act could be taken into account. However, as is clear in the scheme of the legislation, more is required than the lack of findings of an unacceptable risk before exceptional circumstances may be regarded as having been demonstrated.
[1][2005] 12 VR 211
In Cozzi's case, which was, incidentally, a Director's appeal, questions of the considerable delay before any trial and the role of Mr Cozzi as primary carer for his wife in a post cancer treatment phase were among the pertinent factors taken into account by the Magistrate.
By contrast, in the instant case, there are no such factors which, taken either singly or in combination, would constitute exceptional circumstances.
It may be that, at the committal proceedings, clarification will occur as to the exact nature of the charges the applicant will face at trial and as to the amount of time which may elapse before such trial is likely to commence. These factors in turn may affect the issue of exceptional circumstances.
However, at this early stage of the proceedings this application must be refused.
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