DPP v Shentzer
[2002] VSC 217
•12 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 1454 of 2002
IN THE MATTER OF SECTION 18A OF THE BAIL ACT 1977
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v. | |
| YAAKOV SHENTZER | Respondent |
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JUDGE: | BEACH J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 JUNE 2002 | |
DATE OF JUDGMENT: | 12 JUNE 2002 | |
CASE MAY BE CITED AS: | D.P.P. v SHENTZER | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 217 | |
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CATCHWORDS: Appeal against grant of bail by D.P.P. – Section 18A of the Bail Act 1977 – No exceptional circumstances – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. W. Morgan-Payler QC | Solicitor for Public Prosecutions |
| For the Respondent | Mr. N. Clelland |
HIS HONOUR:
This is an appeal by the Director of Public Prosecutions pursuant to s.18A of the Bail Act 1977 against the order of the Melbourne Magistrates' Court made on 15 May 2002 whereby the respondent Yaakov Shentzer was released on bail in respect of three counts of trafficking in a drug of dependence, two counts of conspiracy to traffic in a drug of dependence, and one count of possession of a drug of dependence.
There are three co-accused, a former police officer named Malcolm Rozenes, Shemuel Ohaion and Claude Vanounou.
All accused have been committed to stand trial in the County Court at Melbourne. A case conference date has been set for 30 August 2002.
The Director appeals to this Court on the following grounds:
"1.THAT the learned Magistrate in proceeding to grant bail to the respondent erred in failing to find, pursuant to s.4(2)(aa)(i) of the Bail Act 1977 that exceptional circumstances had not been shown.
2.THAT the learned Magistrate in proceeding to grant bail to the respondent erred in finding pursuant to s.4(2)(d) of the Bail Act 1977 that the respondent was not an 'unacceptable risk' in all the circumstances.
3.THAT in granting bail to the respondent the learned Magistrate afforded too much weight to:
(a) the anticipated delay before trial;
(b) parity with the co accused Rozenes;
(c) the alleged defence of the respondent
(d) alleged family ties to the jurisdiction.
4.THAT in granting bail to the respondent, the learned Magistrate failed to accord sufficient weight to:
(a) the strength of the prosecution case;
(b)the risk that the respondent will fail to appear in answer to his bail;
(c) the combined effect of the above factors."
The background to the charges being laid against the respondent may be summarised as follows.
In June 2001 police commenced an investigation into the trafficking of ecstasy in Melbourne. The investigation targeted the activities of Rozenes who at that time was a Detective Sergeant of Police attached to the Drug Squad.
Using a registered informer who was at all times fitted with a tape recording device a series of meetings was arranged with Rozenes. At a meeting on 2 July 2001 Rozenes told the informer that an associate of his named Jacob had a friend who had 500,000 ecstasy tablets for sale and that he could supply them to the informer for about $18.00 a tablet. Jacob is in fact the respondent.
On 10 July 2001 Rozenes supplied the informer with six sample tablets which were subsequently tested and found to be 25% pure.
On 13 July the informer was provided with $18,000 by the police for the purchase of 1,000 tablets. The transaction ultimately took place on 15 July when 1,500 tablets were handed over by Rozenes.
Later that same evening the informer was provided with a further $32,000 for the purchase of a further 1,000 tablets and to pay for the extra 500 tablets he had received earlier in the day. The informer then proceeded to drive towards a park in the Balaclava area. On the way Rozenes contacted the informer on his mobile phone and told him not to go directly to the park but that he would see him as he approached the vicinity.
As the informer drove towards the location he observed Rozenes stopped on the side of the road in Balaclava Road, Caulfield. As the informer approached Rozenes drove off. The informer followed him to Halstead Road, Caulfield where they stopped.
The informer then handed Rozenes the $32,000 cash, who placed it inside his vehicle behind the seat. Rozenes then told the informer that he would go and meet the respondent and obtain the ecstasy. He then left. The informer watched Rozenes drive away and at the same time saw a silver Honda Accord driving in the area.
A short time later Rozenes returned and provided the informer with 1,000 tablets in a "Kellogs" Crunchy Nut box. Rozenes informed the informer that he had to wait for another half hour to get a further 300 tablets.
A short time later Rozenes drove off to get the extra tablets. The informer walked to Bambra Road which was nearby and saw Rozenes' vehicle stop near the corner of Northcote Avenue. A short time later the informer saw a silver Honda Accord numbered OLF 685 stop in the vicinity of Rozenes. The Honda was driven by the respondent who was known to the informer.
A later check of the registration number of the Honda revealed that it is registered in the name of the respondent's wife. The driver of another car at the scene of the meeting between Rozenes and the respondent was the accused Ohaion.
After Rozenes met with the respondent and Ohaion he returned to where the informer was waiting and handed him a further quantity of ecstasy tablets.
On 26 July 2001 the informer contacted Rozenes regarding the purchase of a further 10,000 tablets. Subsequently an agreement was made to purchase 12,500 for $225,000.
On the evening of 29 July 2001 Rozenes was arrested as the transaction was to take place. He was then requested by police to contact the respondent on his mobile phone and tell him that the informer had arrived with the money to purchase the ecstasy. Rozenes was then accompanied by police to the location of the transfer. Shortly afterwards two of the co-accused, Ohaion and Vanounou arrived. They were arrested and searched and found to be in possession of 150,000 ecstasy tablets.
A subsequent search of the respondent's home address located six $50 notes in the respondent's wife's handbag. The serial numbers on the notes matched those on the notes used by the informer to purchase the ecstasy tablets.
When interviewed following his arrest the respondent made a "no comment" record of interview.
Having regard to the nature of the offences with which he has been charged there was an onus on the respondent to demonstrate that there were exceptional circumstances in his case which justified his release on bail before the learned Magistrate was entitled to make the order he did in the matter.
In his reasons for the bail order he made, the learned Magistrate identified the following major factors which he held when looked at together amounted to exceptional circumstances:
(a) The respondent has no prior convictions;
(b)The respondent has lived in Australia for a period of 29 years, has a family including three children although at the date of his arrest he and his wife were not living as a husband and wife normally do;
(c)The respondent has a residence for him to go in Caulfield although that is subject to a contract of sale and the residence must be vacated on 5 July;
(d)The respondent has been in custody for some 10 months and could well be in custody for another 10 months awaiting trial;
(e) The respondent's health is not good;
(f) The respondent can supply a surety of $300,000;
(g) One co-accused has already been released on bail;
(h)The respondent conducts a business in the Hallam area and had an offer of other employment.
(i) The case against the respondent is not bound to succeed.
In regard to sub-paragraph (i) at the hearing of the committal evidence was adduced on behalf of the respondent to the effect that at the time of his arrest and for some time previously the respondent had himself been an informer, his handler being the co-accused Rozenes.
Pursuant to s.51 of the Drugs Poisons and Controlled Substances Act 1981 (the Act) on 3 April 2000 the respondent had been given an immunity in respect of obtaining evidence which indicated the commission of any offence against the Act in respect of the particular case of:
"An investigation of illicit drug trafficking by X and divers other associates."
During the course of his ruling the learned Magistrate said:
"It is relevant as claimed by (his counsel) that the whole tenor of the defence unless I have completely missed the point, will be directed in the main to the issue of indemnity and the s.51 notice."
I shall return to that latter aspect shortly.
The principles which I am required to apply in considering appeals of this nature were considered by the Full Court of this Court (Young, C.J., Crockett and Ashley, JJ.) in Beljajev and Another v. Director of Public Prosecutions (unreported, 8 August 1991). At p.29 the Court said:
"It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure."
With those principles in mind I turn to the reasons for decision of the Magistrate.
The co-accused who has been released on bail is Rozenes. That was done after evidence was given at his application for bail that specific threats had been made against him, his wife and family after it became apparent prisoners had gained access to his personal identification number and discovered his personal details. In that situation I do not consider Rozenes' release is a factor of significance so far as the applicant is concerned.
Whilst undoubtedly the learned Magistrate was entitled to the view that the factors he identified were factors to be taken into account by him in favour of releasing the respondent on bail can it be said that they constitute exceptional circumstances that is, circumstances which can properly be described as unusual or out of the ordinary.
In my opinion they cannot.
The respondent has been charged with playing a major role in what on any view of the matter was a large drug trafficking operation.
If the applicant is convicted of one or more of the more serious charges he can expect to be sentenced to a lengthy term of imprisonment.
In my opinion the Crown case against the respondent is strong.
The respondent has dual Australian and Israeli citizenship. He has a strong infrastructure of family and community support within Israel having returned there in April, May and June 2001.
When spoken to at the Melbourne Assessment Prison the respondent stated that he has the capacity to live in Israel. He also told police investigators that when he was last in Israel he had considered not returning to Australia.
If the respondent was to obtain a false passport through his known connections in Israel and flee to that country it would be difficult, if not almost impossible, to have him extradited to Australia.
As to the fact that the respondent was given a s.51 indemnity certificate on 3 April 2000 is concerned, there is no evidence whatsoever that at the time the respondent was supplying the ecstasy tablets to Rozenes he was acting pursuant to the certificate. One would have thought that had he been he would have raised the matter at the time of his arrest.
As I have previously stated, I do not consider that the matters relied upon by the respondent constitute exceptional circumstances and in my opinion the finding by the learned Magistrate that they do is erroneous.
The appeal will be allowed. The order of the Melbourne Magistrates' Court made on 15 May 2002 whereby the respondent was granted bail will be set aside.
The respondent's application for bail is dismissed.
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