Lebdeh v Gaffney
[2018] VSC 127
•22 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0059
IN THE MATTER of an Application for Bail by Bilal Lebdeh
Between:
| BILAL LEBDEH | Applicant |
| and | |
| DETECTIVE SENIOR CONSTABLE ANTHONY GAFFNEY | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2018 | |
DATE OF JUDGMENT: | 22 March 2018 | |
CASE MAY BE CITED AS: | Lebdeh v Gaffney | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 127 | |
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CRIMINAL LAW – Application for bail – Applicant, aged 26, charged with thirteen offences, including trafficking (simpliciter) in methylamphetamine, possessing a firearm as prohibited person, resisting and assaulting police and dealing with proceeds of crime – Offences allegedly committed while on bail granted two months earlier on charges including trafficking in methylamphetamine and cocaine – Applicant also subject to community correction order – Significant criminal history, including for failing to appear –Applicant in custody for over two months – Major charges to be contested – Weaknesses in prosecution case on some charges – Likely delay in contested hearing in Magistrates’ Court – Medical operations for deviated septum scheduled next week – Residential rehabilitation (for at least two months) available – Surety of $5,000 offered – Whether applicant has “shown cause why his detention in custody is not justified” – Whether applicant, if bailed, presents unacceptable risk of further offending or failing to appear – Bail granted upon a surety of $5,000 and with residential, daily reporting, curfew and other conditions – Bail Act 1977 (Vic), s 4.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C. Dwyer | Starke Westwood Lawyers |
| For the Respondent | Mr A. Singh | Victoria Police, Legal Practice Group |
HIS HONOUR:
Introduction
On 22 March 2018, I heard and granted an application for bail by Bilal Lebdeh. I gave ex tempore reasons for my decision but indicated I would publish more detailed reasons at a later time. These are those more detailed reasons.
Overview
On 19 January 2018, police attended at Mr Lebdeh’s home in Roxburgh Park, a suburb of Melbourne, where he lives with his parents and siblings, and executed a search warrant for drugs. It is alleged that the following events occurred at those premises.
After the initial search of the house, in which nothing of interest was found, and as police went to search the garage, Mr Lebdeh bolted out through a door, got into a car and attempted to start it. As police tried to prevent him from starting the car (by trying to wrest the key from him), Mr Lebdeh resisted and went to run away, but was caught after a few steps and taken to the ground, where he continued to resist arrest.
Police searched the car. In the driver’s side door, they found, concealed inside a sock, a small unloaded firearm, which appears to be home-made. In the console, they also found a zip-lock bag containing 18 grams of methylamphetamine and a small amount of cannabis. In a search of the garage, police also found, inside a safe, a zip-lock bag containing about one-and-a-half grams of methylamphetamine and a gram of cannabis and, on a coffee table, a bottle containing a small amount of gammahydroxybutanoic acid (“GHB”). In Mr Lebdeh’s wallet and on his person, police discovered a total of $680 in cash, which they believed to be the proceeds of crime.
Mr Lebdeh was arrested and charged with thirteen offences, namely trafficking (simpliciter) in methylamphetamine,[1] possessing methylamphetamine, cannabis and GHB,[2] possessing a firearm as a prohibited person,[3] dealing with $680 cash suspected of being proceeds of crime,[4] assaulting police (two charges),[5] resisting police (four charges),[6] and offending while on bail.[7] He made no comment when interviewed by police. Later that day, he was taken to the Broadmeadows Magistrates’ Court but did not apply for bail.
[1] Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[2] Each contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[3] Contrary to s 5 of the Firearms Act 1996 (Vic).
[4] Contrary to s 195 of the Crimes Act 1958 (Vic).
[5] Contrary to s 52 of the Summary Offences Act 1966 (Vic).
[6] Contrary to s 52 of the Summary Offences Act 1966 (Vic).
[7] Contrary to s 30B of the Bail Act 1977 (Vic).
Eventually, on 7 February 2018, Mr Lebdeh did apply to the same court for bail, but the application was refused. Thus, he has remained in custody since his arrest, which is a little over two months ago.
Mr Lebdeh now applies to this Court for bail. In order to succeed on that application, he must show cause why his detention in custody is not justified. He is in a “show cause position” for three reasons: first, he is charged with trafficking in drugs; second, he is charged with an indictable offence alleged to be committed while on bail for other indictable offences; and, third, he is charged with an offence against the Bail Act 1977 (Vic).[8] That same Act also provides that the Court shall refuse bail if satisfied that there is an unacceptable risk that the applicant, if released on bail, would fail to answer bail or commit an offence.[9]
[8] See s 4(4)(a), (ca) and (d) of the Bail Act 1977 (Vic).
[9] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
The informant, Detective Senior Constable Anthony Gaffney, opposes bail. It is submitted that Mr Lebdeh has not “shown cause” and that, in view of his prior convictions, his previous drug use and his already being on bail on other charges, there is an unacceptable risk that, if bailed, he would commit offences or fail to appear at court. That said, Mr Singh, who appears for the informant in this Court, concedes that the residential rehabilitation on offer and the expected delay in this matter, both of which I shall come to shortly, are matters of significance on this application. For his part, Mr Lebdeh submits that a combination of matters demonstrates that he has “shown cause” and that I should not be satisfied that there are unacceptable risks of the kind alleged.
I have considered carefully the evidence before me this morning, as well as counsel’s competing submissions and their concessions. In the end, as I indicated to the parties in the course of argument, I am satisfied that Mr Lebdeh has shown cause why his detention in custody is not justified. Further, while, given Mr Lebdeh’s drug problem and his prior convictions, there must be some risk involved, I am not satisfied that, if granted bail, he would present an unacceptable risk of further offending or of failing to appear. Accordingly, I have determined to release him on bail with a surety in the amount of $5,000 and with rather strict conditions.
The matters that have caused me to reach these conclusions are as follows.
Reasons
Residential drug rehabilitation programme
First, while Mr Lebdeh, who is aged 26, has a history of illicit drug abuse, he now has the opportunity to engage in a residential drug rehabilitation programme. Mr Lebdeh’s family have organized a place for him at The Wellbeing Planet[10] for at least the next two months and, subject to the sale of a car, possibly a third month.
[10] The Wellbeing Planet is at the premises of what was formerly the brothel known as The Daily Planet.
I heard sworn evidence from Denise Abadee, who is the proprietor of The Wellbeing Planet. Ms Abadee has worked in a variety of roles in the drug and alcohol rehabilitation field since 1990, and has various certificates and qualifications. The Wellbeing Planet – which, as a matter of happenstance, will open its doors for the first time next Monday 26 March 2018 – is presently an eight-bed facility offering a multi-disciplinary approach to inpatients with drug and/or alcohol problems. The facility is staffed by six persons during the day, and three overnight. There are numerous CCTV cameras around the facility (but not in the bedrooms), which are monitored from a central location. The doors are locked overnight. Security appears to be strict, although the staff, of course, have no authority to stop any patient from leaving.
An added virtue of the placement organized in this particular case is that, unlike a placement previously proposed at another rehabilitation facility, the programme of The Wellbeing Planet will allow Mr Lebdeh to have day surgery on his deviated septum, which is scheduled first thing next Monday 26 March 2018, and to recover, while still resident at the facility. Mr Lebdeh has had the surgery booked in for some time and has been advised that, were he to postpone it, he would lose his place in the queue and may have to wait a very long time – perhaps many months – for another place to open up.
While Mr Lebdeh has been subject to community correction orders (“CCOs”) which have included assessment and treatment conditions concerning drugs, he has never been involved in a residential rehabilitation programme. Ms Abadee has had contact with Mr Lebdeh on three occasions since his arrest. She believes that he is motivated to involve himself in the services that her organization offers. I accept Ms Abadee’s evidence.
Incentive to undertake rehabilitation
A second factor supporting bail relates to the first, both of which go to “showing cause” and to offsetting what might otherwise be unacceptable risks of the kinds alleged.
Ms Abadee also promised the Court that, if she or her staff became aware of any breach by Mr Lebdeh of any of his bail conditions (whether it be taking illicit drugs or failing to observe a curfew), that fact would be reported immediately to the informant. She has made this clear to Mr Lebdeh. He, in turn, has told Ms Abadee that he wishes to marry his fiancée and have children. Again, I accept this evidence.
The informant gave evidence that Mr Lebdeh may be charged with receiving contraband in prison through the agency of a visitor. Ms Dwyer, who appeared for Mr Lebdeh on this application, advised the Court that, as a result of the investigation into the possible introduction of contraband, for a considerable period, Mr Lebdeh endured 24-hour lockdowns, had to wear a smock instead of the usual garb, was allowed no phone calls and was isolated in his cell. Only more recently has he been allowed one phone call a day and the lockdown periods have reduced to 23-hour periods. While it is concerning that he may have received contraband in a prison, three additional observations may be made. First, the evidence suggests that it is only tobacco that was received. That is hardly a hanging offence. Secondly, there is some evidence before me, and this is confirmed by Ms Dwyer’s instructions, that Mr Lebdeh was stood over to obtain tobacco. Finally, assuming he is rational, Mr Lebdeh will have a strong incentive to comply with the strictures of any bail conditions, for, in light of the evidence of Ms Abadee, any breach will likely be detected and reported, which in turn would expose him to a substantial risk of having his bail revoked and being returned to those rather extreme conditions in which he has been housed.
Delay
A third consideration tending to “show cause” is the likely delay between Mr Lebdeh’s arrest and the conclusion of any contested hearing, and related points about the strength of the prosecution case on some charges and the sentences that might follow if he were convicted. There are four steps in my reasoning.
First, Mr Lebdeh intends to contest at least the firearm and trafficking charges. There is evidence before me that the registered owner of the car in which the firearm was found presented himself to police, claimed possession of the firearm and said that he did not tell Mr Lebdeh about the firearm when he borrowed his car. Indeed, he has even signed written police notes to that effect. Further, since there is no evidence of any sales, attempted sales or agreement to sell drugs, the trafficking charge is based purely on possession for sale, and the amount said to be in Mr Lebdeh’s possession. In the case of each of those charges, the prosecution must prove, beyond reasonable doubt, inter alia that Mr Lebdeh knowingly and intentionally possessed the firearm/the drugs and, in the latter case, that he possessed the drugs for the purposes of sale,[11] despite the assertion that he was a heavy drug user.
[11] This is so even if the prosecution successfully invokes s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) to assist in proof of possession. See, e.g., Momcilovic v The Queen (2011) 245 CLR 1 at 55[63]-59[74] (per French CJ), 97[190]-99[200] (per Gummow J), 123[280] (per Hayne J), 229[607]-230[612] (per Crennan and Kiefel JJ) & 253[697]-255[701] (per Bell J).
While there are limits on assessing the strength of any prosecution case on a bail application, in view of the foregoing, it is clear enough that there are strong arguments in favour of acquittal on the firearms charge and at least reasonable arguments in favour of the same outcome on the trafficking charge (although mere possession may not be as difficult a prospect in the particular circumstances, particularly when, as Ms Dwyer conceded, the owner of the car did not claim possession of the drugs).
The second step is that, in respect of the other trafficking charges on which Mr Lebdeh was admitted to bail on his own undertaking in November, only quite small amounts of the drugs in question (about three grams each of methylamphetamine and cocaine) are alleged. Those charges of trafficking also seem to be based only on allegations of possession for sale. Thus, it is again reasonable to expect that there may be difficulties in proof of trafficking, whereas proof of simple possession may be a somewhat easier task.
The third step is that inquiries made on behalf of Mr Lebdeh with the Broadmeadows Magistrates’ Court reveal that it is unlikely that the hearing dates for the contested matters will be any earlier than September this year. Further, given uncertainties about the timeframe for DNA and other forensic testing, the hearing dates could be a good deal further away than that.
The fourth and final step is that, by September, Mr Lebdeh will have spent eight months in custody. While estimating the sentences that another court might impose upon conviction can be fraught, it is reasonable to expect that, even if convicted of all charges laid against him by the informant in this matter, as well as those in respect of which he is already on bail, and allowing for his criminal history (which is not insubstantial and includes offences mostly of violence, dishonesty, failing to appear and driving matters, but does not involve convictions for drug trafficking), Mr Lebdeh might well receive a sentence with an imprisonment component a good deal shorter than eight months. Further, if he is acquitted of either the firearms charge or the trafficking charges or both, then, if he is not granted bail, the risk that he will have spent more time in custody than the custodial component of any total sentence on the remaining charges is extremely high.
Thus, in the circumstances of this case, the delay between arrest and the likely hearing date is another important factor pointing towards bail.
Surety
A fourth matter that goes both to offsetting the asserted unacceptable risks and to showing cause is the availability of a surety in the amount of $5,000, offered by Mr Lebdeh’s father.
While $5,000 may not seem like a great deal of money to some, it is, I accept, a substantial amount for the proposed surety himself. Mr Lebdeh’s father is a pensioner who has saved the $5,000 for his own funeral. As dark as that thought might be, I think it is significant that he is prepared to put up those funds for the purposes of his son’s bail.
Conditions of bail
Finally, the strict conditions I intend to impose – none of which is disputed by either party – give me the confidence that, while there may well be risks of the kinds alleged in this case, any such risks are reduced so as not to be at an unacceptable level.
Conclusions and orders
It seems to me that, provided the risk of offending or absconding on bail is not unacceptable (and, as I have indicated, I am not satisfied that it is), it would be in both Mr Lebdeh’s and the community’s interests to release him on bail so that he may take up the opportunity that is presented to him by his placement in the drug rehabilitation programme Ms Abadee’s organization is offering. For, even if he is ultimately convicted and sentenced to terms of imprisonment on some or all charges (and, as I understood Ms Dwyer, there will be no dispute about some charges), Mr Lebdeh will have to be released sooner or later. In my view, it is in everyone’s interests that his rehabilitation in the community starts as soon as possible. His placement at The Wellbeing Planet is potentially an important step towards ultimate reform. Not many in the community are so fortunate to have such an opportunity. In my view, it would be a great pity for that opportunity to be lost. When the likely delay between arrest and the completion of any contested hearing is added to the mix, the case for bail becomes even more compelling. It follows that bail should be granted.
As discussed with counsel, however, I shall fashion the order for bail so that Mr Lebdeh is effectively released into the custody of Ms Abadee as soon as possible, which cannot be until Monday, but so that it also accommodates his surgery, for which he will need to be released this coming Sunday evening. Thus, I shall order that Mr Lebdeh not be released until this Sunday evening, so that he spends only one night at home with his family and so that he can have his surgery the next morning and then go into the effective care of Ms Abadee at The Wellbeing Planet for the next two months (or three, if a third month is available).
So, I order that Bilal Lebdeh (“the applicant”) be admitted to bail upon there being a surety of $5,000 and with the following conditions:
1) The applicant is to be released on Sunday 25 March 2018 no earlier than 4:00 p.m. and no later than 6:00 p.m., and only then into the custody of either or both of his parents, who will collect him from the prison.
2) The applicant is to reside at:
a) 2 The Ridge, Roxburgh Park, in the State of Victoria, on the evening of 25 March 2018;
b) The Wellbeing Planet at 7/12 Horne Street, Elsternwick, in the State of Victoria, from 26 March 2018 at least until 21 May 2018; and
c) 2 The Ridge, Roxburgh Park, in the State of Victoria, thereafter.
3) Other than in case of emergency, the applicant is not to be absent from either of the abovementioned places of residence, where applicable, between the hours of 8:00 p.m. and 6:00 a.m. (“the curfew hours”) and, when residing at 2 The Ridge, Roxburgh Park, is to present himself at the front door of that residence if requested to do so by police during the curfew hours.
4) The applicant is not to leave the premises of The Wellbeing Planet between 26 March 2018 and 21 May 2018 (or while resident at those premises) except for medical reasons or when accompanied by a staff member.
5) The applicant is to abide by all lawful directions of the staff of The Wellbeing Planet while resident there.
6) The applicant is to provide two supervised drug screens per week, and any random drug screens requested, while at The Wellbeing Planet.
7) The applicant is to report:
a) to the officer-in-charge of the St Kilda Police Station once each day between 6:00 a.m. and 8:00 p.m. while resident at The Wellbeing Planet; and
b) to the officer-in-charge of the Broadmeadows Police Station once each day between 6:00 a.m. and 8:00 p.m. while resident at 2 The Ridge, Roxburgh Park.
8) The applicant is not to consume alcohol or any drugs of dependence (other than as prescribed by a medical practitioner).
9) The applicant is to have only one mobile phone and the number of that mobile phone is to be provided to the informant Detective Senior Constable Anthony Gaffney or his nominee.
10) The applicant is not to contact, either directly or indirectly, any witnesses for the prosecution other than the informant Detective Senior Constable Anthony Gaffney or his nominee.
11) The applicant is to surrender any passport or travel document in his possession to the informant Detective Senior Constable Anthony Gaffney or his nominee within 48 hours of being released on bail and is not to apply for any other such passport or document.
12) The applicant is not to leave the State of Victoria or Australia.
13) The applicant is not to attend any points of international departure.
14) The applicant is to appear at the Magistrates’ Court at Broadmeadows on 10 April 2018 and thereafter as directed by that court.
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