Pasqua v The Queen
[2013] VSC 132
•18 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0017 of 2013
IN THE MATTER of the Bail Act1977 (Vic)
and
IN THE MATTER of an Application for Bail by ROQUE PASQUA
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 7 and 18 March 2013 | |
DATE OF JUDGMENT: | 18 March 2013 | |
CASE MAY BE CITED AS: | Pasqua v R | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 132 | |
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CRIMINAL LAW – Application for bail – Drug Offences – Show cause under ss 4(4)(a) and 4(4)(ca) of the Bail Act 1977 – Delay – Possible 18 month pre-trial detention – Approved for Court Integrated Services Program – Family support – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Jassar | Malkoun & Co Lawyers |
| For the Respondent | Mr G. Hughan | Office of Public Prosecutions |
HIS HONOUR:
On 12 February 2013, Roque Pasqua filed an application in this Court for bail supported by an affidavit sworn by his solicitor Anthony Malkoun.
The applicant has been charged with a large number of offences. In relation to matters which are yet to be dealt with at the Sunshine Magistrates’ Court there are 17 offences, which include driving offences, possessing a drug of dependence, possessing a prohibited weapon, possessing methylamphetamines, dishonestly undertaking retention of stolen goods, dealing with property suspected of being the proceeds of crime, possessing methylamphetamine, possessing information to commit or facilitate the commission of an indictable offence, traffick mtheylamphetamine, possess methylamphetamine, use methylamphetamine and deal with property suspected of being the proceeds of crime. He is also charged amongst those matters with a failure to answer bail.
There are a second set of offences which are pending to be dealt with in the Melbourne Magistrates’ Court, which include offences of receiving stolen goods, possessing drugs of dependence, driving offences and breach of a suspended sentence.
According to evidence given by the informant, Leading Senior Constable Dalli, it would appear that the applicant was arrested on 13 September 2012. On that day, the police executed a search warrant on a room at the Palms Motel in Footscray which it would appear was arranged by the applicant. In that room, the applicant was with two associates and acknowledged that the drugs inside the room belonged to him. There is some uncertainty about the quantity. On one view it was 26 grams of methylamphetamine but more likely 7 grams. Certainly it was in excess of the traffickable quantity of 3 grams. There were also three mobile phones and an iPad which the police suspect of being stolen, and the sum of $10,350 in cash. The iPad tended to indicate by its contents that the applicant was trafficking in drugs. The other people present were also arrested.
In the course of interview, the accused apparently told police that the crystallised substance was speed which he had for personal use and claimed that he had bought the phones legitimately from a shop. He also claimed the $10,350 was obtained legitimately. He told the police that he had a drug habit.
He has remained in custody on four charges, in particular being that on that day he trafficked amphetamine, possessed amphetamine, used amphetamine and dealt with property suspected of being the proceeds of crime. Applications were made for bail on 13 September 2012 and refused in the Melbourne Magistrates’ Court, and on 18 October 2012 in the Sunshine Magistrates’ Court. In both cases the same magistrate presided and the second bail application was ultimately withdrawn.
As I understand it, the applicant proposes to plead not guilty to most of the offences with which he is charged. The matters listed in the Sunshine Magistrates’ Court are listed for a contest mention on 5 April 2013 and the matters in the Melbourne Magistrates’ Court are listed for a contest on 26 April 2013.
Pursuant to s 4(4)(a) and s 4(4)(ca) of the Bail Act 1977, in this application the applicant is required to show cause why his detention in custody is not justified because he is charged with an indictable offence alleged to have been committed while he was at large awaiting trial for another indictable offence and also because he is charged with the offence of trafficking under the Drugs, Poisons and Controlled Substances Act 1991.
So, the question for me to consider in this application is whether or not the applicant has satisfied the Court that his detention in custody is not justified. If he has, then bail will be granted and if he has not then bail must be refused. If there is an unacceptable risk that the accused would fail to surrender himself into custody to answer his bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or another person then the applicant will not have satisfied the Court that his detention in custody is not satisfied.[1]
[1]See s 4(2)(d) of the Bail Act 1977 and see Asmar [2005] VSC 487 at [11].
The question of the strength of the case against an applicant in the circumstances of Mr Pasqua is merely one of the factors to be considered when evaluating whether or not it is more or less likely that he would meet the conditions of bail.
As I have said, the applicant indicates that the matters with which he is charged will be contested, although significantly in relation to a charge of failing to answer bail and also a charge of breaching a suspended sentence, as I understand, he proposes to plead guilty. The drug matters are to be contested on the basis that the applicant was not trafficking as opposed to possessing the drugs found by police. There is a particular factual issue concerning his possession of a sum of $10,350.00 which I will return to shortly.
The applicant is aged 50 and had formerly worked in a family tiling business as a qualified stonemason. He has licences for various vehicles including bobcats and excavators, and also a crane operator’s licence. The applicant is apparently married though separated with three children aged in their late teens, or in the case of the eldest, in her early twenties.
The affidavit in support of the application points to marital difficulties and an introduction to drugs in the year 2000, with a spiralling series of difficulties which included loss of the matrimonial home and other personal consequences. Prior to 2000, he had not been in trouble with the law. However since then the applicant has had numerous encounters with the criminal law, all of which appear to be explicable by reason of his addiction to the drug methylamphetamine.
During the time that the applicant has been in custody most recently, difficulties have afflicted his family involving his children, one of which involved a child being expelled from school because he was in custody he was unable to participate and assist. There were also difficulties with the mother of the child.
In addition to these matters, the applicant apparently has Type 1 diabetes and is insulin-dependent, has high blood pressure, suffers from sleep apnoea and panic attacks and has developing symptoms, particularly from the diabetes.
It would appear that the applicant has an addiction to methylamphetamine and has been drug-free since his arrest because he has been in custody.
A surety is offered by the parents of the applicant, and they apparently are also in a position to provide him with residential support. A letter from the sister of the applicant sets out her commitment to assisting him, including an intention to supervise medical treatment of him, is attached to the affidavit in support of the application.
A further affidavit in support of the application for bail is sworn by Beatriz Pasqua, who is the applicant’s mother. In relation to one of the charges of dealing with property suspected of being the proceeds of crime, Mrs Pasqua deposes that $10,000 of the sum of $10,350 involved was in fact a sum of money which was provided in cash by her husband to her son for him to purchase a motor vehicle. I do not propose to deal with that issue other than to note that that is her evidence. Like the informant, I am dubious about the explanation. However, her affidavit also deposes if released on bail the applicant can reside with them in the Altona area and if that were to occur Mrs Pasqua is apparently content for it to be a condition of bail. At the hearing before me on 7 March 2013 the family and friends of the applicant were present and supportive. I do think, as I observed to Mr Hughan for the respondent, that that tends to reduce the risk of flight.
The application is opposed by the informant on the grounds that the applicant is an unacceptable risk of committing and offence whilst on bail and failing to appear. There is some considerable substance to that concern. Apart from offending whilst on bail, there have been three occasions on which the applicant has failed to answer bail after it has been ordered. In addition he also breached a suspended sentence.
The applicant has been in custody now for six months. I am told by the informant that the delay in the matter being heard could be as great as another 12 months whilst he waits for forensic analysis of what was located when he was arrested. That could mean that before his contested hearing in the Magistrates Court he could another year of pre-trial custody bringing the total to a possible 18 months. That is an extraordinary state of affairs.
During the course of the hearing on 7 March 2013, I was informed that on a previous occasion, a Magistrate had been requested to order an assessment of the applicant under the Court Integrated Services Program (CISP) but had refused. It seems to me that in the case of this applicant, as I observed in the course of argument, a way has to be found to break the cycle of offending which he considers is necessary to manage his drug addiction. As a result of my directions an assessment was carried out of the applicant with the result that he has been approved for Level 3 Intensive Case Management within the Court Integrated Services Program. This will involve intensive treatment including counselling, visiting a psychologist for treatment of depression, among other things.
A report, which I have marked as Exhibit A, was prepared by Mr Aaron Livingstone, the case manager. He was good enough to attend Court on 15 March 2013 for the purpose of offering further information in relation to the proposed program if it was necessary and I am grateful for that attendance.
It would seem to me that the use of this program and what appears to be a desire on the part of the applicant to submit himself to the program and to do something about his addition to drugs and other circumstances to which I have referred leave me in a position where although there is a risk in his release on bail, as there is in most cases, that risk can be ameliorated by conditions which will make the risk acceptable.
In all the circumstances, and albeit with some hesitation, I propose to release the applicant on bail with a surety of $20,000 and on the following conditions:
1.that the applicant attend the Magistrates’ Court of Victoria at Sunshine on 5 April 2013 for contest mention;
2.that the applicant not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself;
3.that the applicant reside at 34 Queen Street, Altona, Victoria and not change his place of residence without 7 days notice to the informant and the leave of the Court;
4.that the applicant remain within the premises at 34 Queen Street, Altona, Victoria between 8pm and 8am on each day of the week other than with the permission of the Informant;
5.that the applicant report daily to the Officer in Charge of the Police Station at Altona or his nominee between the hours of 8.00am and 6.00pm.;
6.that the applicant not contact directly or indirectly any witness for the Prosecution except the Informant or his nominee;
7.that the applicant surrender any passports which he may hold to the Informant within 24 hours of being admitted to bail and not apply for another passport;
8.that the applicant not attend any point of international departure during the period of bail;
9.that the applicant not leave the metropolitan area of Melbourne without the approval of the Informant;
10.that the applicant participate as directed in the program to be conducted by the Court Integrated Services Program according to the terms of the Report of Aaron Livingstone prepared 15 March 2013 and that he comply with the lawful directions of Mr Livingstone or his nominees; and
11.that the applicant not attend at or in the vicinity of the Palms Motel located at 50 Princes Highway, Footscray until further order.
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