R v Falanga
[2014] SADC 21
•14 February 2014
District Court of South Australia
(Criminal: Application)
R v FALANGA
[2014] SADC 21
Judgment of The Honourable Justice Bampton
14 February 2014
CRIMINAL LAW - PROCEDURE - BAIL - RECOGNISANCES - FORFEITURE AND ESTREATMENT - GENERALLY
Application to revoke bail agreement and forfeit guarantees of bail. Director of Public Prosecutions seeks orders that the pecuniary forfeiture stipulated in Mr Falanga’s bail agreement and the four guarantees be carried into effect. The guarantors are Mr Falanga’s parents and his two brothers-in-law.
Mr Falanga’s parents contest the validity of their guarantees of bail on the basis that they did not understand their obligations under the guarantees and the potential consequences of failing to comply with those obligations. The guarantors submit that they took reasonable steps to ensure Mr Falanga’s compliance, and that they will suffer financial hardship if forfeiture is ordered. Mr Falanga also made an application to be relieved from forfeiting the pecuniary sum on the basis that he has no means to pay the amount.
Held:
(1) Mr Falanga’s parents’ guarantees of bail are valid (at [54]).
(2) The guarantors failed to meet their obligations under the guarantees; as such, the pecuniary forfeiture of the amount stipulated in the guarantees should be carried into effect (at [70], [73] & [76]).
(3) It is fair and just to reduce the amount to be forfeited in respect of each of Mr Falanga’s parents on the grounds of financial hardship (at [70]).
(4) Mr Falanga’s brothers-in-law failed to establish financial hardship such as to reduce forfeiture (at [73] & [76]).
(5) The pecuniary forfeiture stipulated in Mr Falanga’s bail agreement is carried into effect. It would undermine the Courts power to grant bail and render the deterrent effect of stipulating a pecuniary order meaningless to do otherwise (at [80]).
Bail Act 1985 (SA) s 19, s 7, s 17A, referred to.
R v Jones [2005] SASC 183; R v Rigney (No 2) (1988) 49 SASR 389; Mokbel v Director of Public Prosecutions (2006) 14 VR 405; R v McKinnon (1988) 146 LSJS 339; Uxbridge Justices; Ex parte Heward-Mills [1983] 1 All ER 530; [1983] 1 WLR 56; R v Vella (Unreported, District Court of South Australia, Judge Lunn, 9 November 1994); R v Agius [2012] SASC 136, considered.
R v FALANGA
[2014] SADC 21Criminal: Application for Estreatment
BAMPTON J.
This is an application by the Director of Public Prosecutions pursuant to s 19 of the Bail Act 1985 (SA) (the Act) (the application) to revoke the prisoner Carmelo Falanga’s (Mr Falanga) bail agreement entered into by him on 5 November 2010 and for:
1.an order that the pecuniary forfeiture stipulated in Mr Falanga’a bail agreement be carried into effect; and
2.orders that the pecuniary forfeitures stipulated in the guarantees of Mr Falanga’s bail given by Mr Antonino Falanga (Mr Falanga Senior), Mrs Angela Falanga, Mr Blake Kempin and Mr Adam Treacher be carried into effect.
Background
On 8 May 2009, Mr Falanga was arrested and charged with firearm offending committed in February 2008. He was released on simple bail.
On 21 August 2008, Mr Falanga was arrested, charged and bailed with a surety of $300,000 in Victoria for Commonwealth offending relating to the alleged importation of MDMA. The conditions of his bail permitted him to reside in South Australia.
On 15 August 2010, Mr Falanga was charged with further firearms offences and drug offending. He was refused bail and remanded in custody.
The bail agreement
Mr Falanga made an application to the Magistrates Court for bail. During the contested hearing on 5 November 2010 the court received a Bail Enquiry Report and a Bail Enquiry (Home Detention) Report, both dated 5 November 2010. The Bail Enquiry Report records that Mr Falanga Senior said he owned his house and that he could manage a surety of $50,000. Mr and Mrs Falanga told the report writer, Ms Skewes, they had the respect of their son and he would follow their house rules but that they cannot control the behaviour of a 45 year old man. The Bail Enquiry (Home Detention) Report concluded home detention was appropriate for Mr Falanga and it was noted that he was a drug user. Appendix A is a copy of these reports.
Mr Falanga was released on home detention bail, in his own recognisance in the sum of $20,000. In signing the bail agreement (Appendix B is a copy of the bail agreement) Mr Falanga agreed in particular to:
·Condition 3, to reside at 19 Brooker Court, Woodville Park, the home address of his parents; Antonio and Angela Falanga.
·Condition 7, to be of good behaviour and commit no violation of the law.
·Condition 9, to refrain from consuming alcohol and drugs not medically prescribed and to submit to random breath or urinalysis.
·Condition 13, to “obtain a guarantee in the sum of $25,000. Guarantor Angela Falanga, 19 Brooker Court, Woodville Gardens, SA 5011. Provision of title to their home to the Registry”.
·Condition 14, to “obtain a further guarantee in the sum of $5,000. Guarantor. Adam Treacher, 78 Brighton Road, Glenelg East, SA 5045. $5,000 in cash”.
·Condition 15, to “obtain a further guarantee in the sum of $4,000. Guarantor Blake Kempin, 3/27 Airdrie Avenue, Seaton, SA 5023. $4,000 in cash”.
·Condition 16, to “obtain a further guarantee. Guarantor Salvatore Guida, 62 David Terrace, Kilkenny, SA 5009. Title of the home to be provided to the Registry”.
·Condition 17, to “obtain a further guarantee. Guarantor Saveria Guida, 62 David Terrace, Kilkenny, SA 5009. Title of the home to be provided to the Registry”.
·Condition 18, to “obtain a further guarantee in the sum of $25,000. Guarantor Antonino Falanga, 19 Brooker Court, Woodville Gardens, SA 5011. Title of the home to be provided to the Registry”.
Appendix C is a copy of the Guarantees of Bail. In the Guarantees of Bail each of the guarantors acknowledged they had been given a copy of the Mr Falanga’s bail agreement and that they “will ensure that Carmelo Falanga will comply with the terms and conditions of the bail agreement in relation to which this guarantee is given”.
Relevantly, the guarantors also acknowledged the understanding that:
1.that if I know, or have reasonable grounds to suspect, that Carmelo FALANGA has failed to comply with a term or condition of the agreement in relation to which this guarantee is given, then I am required to take reasonable steps to inform a member of the police force that the failure has, or may have, occurred, and that if I fail to do so then in addition to the amount I have undertaken to forfeit to the Crown, I may also be liable to a fine of up to $1,250.00; and
2.that this guarantee is in force for so long as Carmelo FALANGA is on bail, subject to the terms of this guarantee being varied or the guarantee being revoked.
The application originally sought estreatment of Mr Salvatore Guida and Mrs Saveria Guida’s guarantees. Mr Falanga is the nephew of Mr and Mrs Guida. Ms Ingleton who appeared for the Director at the hearing of the bail application submitted that it was the intention of the Magistrate when granting bail that the pecuniary sums attached to the guarantees of Mr Falanga and his parents, Mr Falanga Senior and Mrs Falanga, be secured using the property owned by Mr and Mrs Guida. The title of the Guida’s property was lodged with the Registrar of the Magistrates Court.
However, the pecuniary sum stipulated in the Guidas’ guarantees is “$0.00”. The Director conceded that the Act only permits estreatment of a pecuniary sum and, accordingly, I struck out the summons issued to Mr and Mrs Guida.
The breaches of the bail agreement giving rise to application
On 14 July 2011, whilst on Home Detention Bail and subject to earlier bail agreements, and the Victorian bail agreement, Mr Falanga committed the following offences (the Woodville Park offending);
·manufacturing a controlled drug for sale;
·aggravated possession of a class H firearm without a licence;
·aggravated create risk of serious harm; and
·two counts of simple possession.
He was arrested, charged and remanded in custody.
Revocation of bail
On 10 November 2011, I revoked Mr Falanga’s bail agreement dated 5 November 2010.
Mr Falanga’s sentence
On 30 August 2012, I sentenced Mr Falanga to nine years’ imprisonment with a non-parole period of four years and six months’ imprisonment for offending which occurred between February 2008 and July 2011.[1] Appendix D is a copy of my sentencing remarks setting out the salient features of the offending. In particular, under the heading “Woodville Park Offending”, I have described the offending committed on 14 July 2011 that occurred while Mr Falanga was living at his parents address pursuant to home detention bail conditions.
[1] DCCRM-10-434; DCCRM-11-297; DCCRM-11-1099; DCCRM-11-2110.
The application
The application is based on two breaches of Mr Falanga’s home detention bail agreement, namely:
·Condition 7, “That you be of good behaviour and commit no violation of the law”; and
·Condition 9, “You refrain from consuming alcohol or any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages. You will submit to any breath test or urinalysis as directed by your supervisor”.
It is submitted that Mr Falanga breached conditions 7 and 9 by committing the Woodville Park offending and by returning a positive results for the presence of amphetamine and methylamphetamine in his urine on 4 May 2011.
The application for estreatment was opposed by Mr Falanga and all his guarantors. Mr Falanga Senior and Mrs Falanga challenged the validity and enforceability of their guarantees on the grounds that they did not properly understand their obligations and the potential consequences of their son failing to comply with his bail agreement.
Mr Falanga’s parents and Mr Treacher gave evidence on oath in relation to their understanding of their obligations pursuant to their guarantees and the efforts they made to fulfil those obligations.
Mr Kempin did not attend at the hearing but forwarded a handwritten statutory declaration to the court.
Finally, submissions were made by counsel on behalf of Mr Falanga.
The Bail Act
Before considering the evidence and submissions, it is convenient to set out the relevant provisions of the Bail Act 1985 (SA). Section 7 of the Act provides:
7—Guarantee of bail
(1)A guarantee of bail is an agreement with the Crown under which a person—
(a) guarantees that a person released under a bail agreement will comply with—
(i)all the terms and conditions of the agreement; or
(ii)such of the terms and conditions of the agreement as are specified in the guarantee; and
(b) undertakes that, if that person fails to comply with a term or condition of the bail agreement to which the guarantee relates, he or she (the guarantor) will forfeit to the Crown the sum (if any) specified in the guarantee.
(2)A guarantee of bail must be in the prescribed form.
(3)A guarantee of bail may be entered into before the bail authority granting bail or, unless the bail authority otherwise directs, before—
(a) a justice; or
(b) a member of the police force of or above the rank of sergeant or in charge of a police station; or
(c) if the person who is to be released on bail is in prison—the person who is in charge of the prison; or
(d) any other person specified by the bail authority or any other person of a class specified by the bail authority.
(4)A bail authority may for any sufficient reason, on the application of a guarantor, vary the terms of the guarantee or revoke the guarantee.
(5)Where a bail authority varies or revokes a guarantee, the bail authority may make such consequential variation of the terms of the bail agreement, or revoke the bail agreement, as appears appropriate in the circumstances.
(6)A guarantor of bail must be of or above the age of 18 years.
Section 17A of the Act imposes criminal liability on a guarantor who fails to inform police if the person on bail fails to comply with a term of the bail agreement. It states:
17A—Guarantor must inform member of police force if person fails to comply with bail agreement
Where a guarantor knows, or has reasonable cause to suspect, that the person released under the bail agreement has failed to comply with a term or condition of the agreement in relation to which his or her guarantee has been given, the guarantor must take reasonable steps to inform a member of the police force that the failure has, or may have, occurred.
Maximum penalty: $1 250.
Section 19 of the Act deals with estreatment. It provides as follows:
19—Estreatment
(1)Where a person who has been released in pursuance of a bail agreement contravenes or fails to comply with a term or condition of the agreement—
(a) the court before which that person is bound to appear; or
(b) the Magistrates Court,
may on the application of the Crown, or on its own initiative, order that a pecuniary forfeiture stipulated in a bail agreement or a guarantee be carried into effect.
(2)An order for pecuniary forfeiture under subsection (1) may provide that the order is not to be carried into effect until a subsequent day to be fixed by the court making the order.
(3)Where a court makes an order under this section, the court may at any time for any sufficient reason on the application of the person in relation to whom the order is made, or on its own initiative—
(a) reduce the amount of the forfeiture as stipulated in the bail agreement or guarantee; or
(b) rescind its order.
(3a)A court that makes an order under this section may allow time for payment of the amount forfeited and, if appropriate, direct that the amount be paid in instalments.
(4)The amount of a pecuniary forfeiture that is carried into effect pursuant to an order under this section may be recovered as a fine.
Evidence of Mr Falanga Senior
Mr Falanga Senior is now 78 years of age. His only criminal antecedents are traffic infringements. He required an interpreter while giving evidence. He was born in Sicily, Italy. He came to Australia by himself in 1959, He met Mrs Falanga and they married in 1965. They have three sons. Mr Falanga is the eldest and is aged 47 years. Their middle son, Dominic, is 45 years of age and their youngest son, Giuseppe, is aged 37 years. At the time of Mr Falanga Senior’s evidence, Giuseppe was serving a term of imprisonment.
Mr Falanga Senior returned to Italy with Mrs Falanga for around eight years between 1972 and 1980. Upon their return to Australia they purchased their home at Woodville Park and have been living there for the past 32 years. The Woodville Park property was, until 2003, unencumbered. Around that time, Mr Falanga Senior and Mrs Falanga invested in a scheme which suffered a highly publicised collapse. They lost over $200,000 and were forced to mortgage the property.
Mr Falanga Senior was employed at Holden and later John Shearer, before retiring at the age of 65. Since that time he has received the aged pension. He also receives a pension from Italy. Financial documents tendered at the hearing show that as at June 2012, Mr Falanga Senior and Mrs Falanga owed around $260,000 on the mortgage. Their joint income is around $2,500 per month, of which approximately $1,850 is used to service the mortgage. It was submitted that enforcement of the guarantees would require Mr and Mrs Falanga to sell their home at Woodville Park.
In evidence-in-chief, Mr Falanga Senior said that he had never been guarantor for a bail agreement prior to guaranteeing Mr Falanga’s bail on 5 November 2010. He said that if he did not help Mr Falanga nobody else would have. He gave evidence that he understood that his obligation under the guarantee was to prevent Mr Falanga from running away. He said that Mr Falanga initially resided in the house of the Woodville Park property. Mr Falanga later moved into the rear shed which he converted into a bedroom. Mr Falanga Senior said that he never saw Mr Falanga use drugs and had no cause to ask him if he was taking drugs. He stated that he did not ever see guns in the shed.
Mr Falanga Senior said that he had no other assets other than the Woodville Park property and would not be able to borrow money from friends or relatives to pay the surety. He said that if he sold his house he would need to ask the Housing Trust to find him accommodation.
Under cross-examination, Mr Falanga Senior accepted that he spoke to a community corrections officer prior to Mr Falanga’s release on home detention. However, he said that he did not tell anybody that he could manage a surety of $50,000. He said that he could not read English and that his son, Dominic, was present when he signed the guarantee. He said that Dominic did not translate the document and simply told him where to sign the document if he wanted Mr Falanga to be released. He said that he did not have $50,000 available, but signed the guarantee because he was sure that Mr Falanga would not run away.
Mr Falanga Senior was asked about the amount of interaction he had with Mr Falanga. He said that he went out to the shed two or three times a day and saw him all the time. He said that he would bring Mr Falanga a coffee each morning.
Mr Falanga Senior gave evidence that he did not know why Mr Falanga was in prison or what he had been charged with. He said that at the time he entered into the guarantee he was not aware that Mr Falanga had been charged with manufacturing drugs or possession of firearms.
Mr Falanga Senior was questioned in relation to the statement of Mr Peter Venn, dated 27 September 2011, the manager of Scotcher Race Fuels at Wingfield. Mr Venn states that a person matching the description of Mr Falanga Senior purchased approximately six 20 litre drums of Toluene, a chemical used in the manufacture of amphetamine, over a 12 month period. Toluene is not a prescribed chemical and can be purchased over the counter. Mr Falanga Senior said that Mr Falanga asked him to purchase the chemical for the purpose of cleaning his motorbike. There are no charges against Mr Falanga Senior relating to the Toluene purchase.
Evidence of Mrs Falanga
Mrs Falanga is now 71 years of age. She has no criminal antecedents and also required the assistance of an interpreter while giving evidence. She was born in Italy and moved to Australia in 1961. She also receives the aged pension.
Mrs Falanga said that she had never previously guaranteed a bail agreement. She was not aware of the charges Mr Falanga was facing at the time she entered into the guarantee. She said that she was not aware that Mr Falanga was using drugs. She said that she entered into the guarantee because Mr Falanga was her son. She said that she did not know what her obligations were under the guarantee, including the obligation that Mr Falanga attend court as required.
Mrs Falanga said that she saw Mr Falanga every day, would cook him meals, and do his laundry and cleaning. She said that she often went into the shed to bring Mr Falanga meals. She said that she never saw any guns, drugs or equipment for manufacturing drugs.
Mrs Falanga gave evidence that she did not have any cash or assets besides the Woodville Park property. She did not have any friends or relatives to borrow the money from.
During cross-examination, Mrs Falanga said that no one explained to her what it meant to be a guarantor. She conceded that she knew it was a serious matter entering into a guarantee and that she was entering into a promise with the Court. She said that she was not aware that Mr Falanga had a drug problem.
She said that as at 5 November 2010, she did not have the financial capacity to pay $25,000 to guarantee Mr Falanga’s bail. She said that she didn’t expect that Mr Falanga would commit the offending at the home detention address.
She said that she never asked him whether he was taking drugs because he always seemed “normal”. She said he was always speaking properly and was respectful, so she didn’t ask him.
Evidence of Mr Treacher
Mr Treacher appeared in person and was unrepresented. He read a statement to the Court and was then cross-examined by the Crown. Mr Treacher is the brother-in-law of Mr Falanga. He was asked by his sister, Emma Falanga, to act as guarantor for her husband, Mr Falanga. Mr Treacher has a partner and eight children, five of whom currently live with him. He has never previously guaranteed a bail agreement.
Mr Treacher said that he understood his obligations were to ensure that Mr Falanga did not leave his premises, did not engage in any criminal activities and attended court as directed. He said that on the few occasions on which he attended the Woodville Park property he saw no evidence of illegal activity including the presence of guns, drugs or drug making equipment. He stated that he was told that police and correctional services attended the property and conducted searches and drug tests regularly. He said that he felt that he did everything possible to meet his obligations under the guarantee and that the only possible way he could have prevented the Woodville Park offending was if he was there on the day when it occurred, putting himself at risk of harm. He said that he has a family to support and cannot afford to forfeit the $5,000 he lodged with the Registry.
In cross-examination, Mr Treacher said that he visited the Woodville Park property on around four occasions, although it could have been as many as five or six while Mr Falanga was on home detention bail. On each occasion he was invited to the premises to visit his sister and her children. He entered the rear shed on two of those occasions. He said that he was not aware that Mr Falanga was using drugs, although he was aware that Mr Falanga was charged with their manufacture. He said that he knew that his sister, Emma, had a drug problem. He was not aware that Mr Falanga had also been charged with firearms offences.
Mr Treacher said that the signing of the guarantees was very rushed and that Mr Falanga Senior and Mrs Falanga appeared not to read the guarantees.
Mr Kempin
Mr Kempin did not appear. By reference to a statement prepared by Detective Sergeant Fahy, Mr Kempin was not served with the summons for these proceedings. Detective Sergeant Fahy was later contacted by Mr Kempin who informed him that he had moved to Queensland.
Mr Treacher provided to the Court a statutory declaration by Mr Kempin dated 18 October 2012. In the statement, Mr Kempin declares that he was asked by his sister-in-law, Emma Falanga, to guarantee her husband’s bail agreement. He states he understood that his obligations were to ensure that Mr Falanga did not leave the home detention premises, did not engage in any criminal activity and was to attend court hearings as directed. He states that on the occasions he attended the Woodville Park property he saw no evidence of the presence of guns, drugs or drug making equipment. He states that he was told that police and correctional services attended the property and conducted searches and drug tests regularly. He states that the only possible way he could have preventing the Woodville Park offending was if he was there on the day when it occurred, and “that could have had dire consequences for him”.
Mr Carmelo Falanga
Mr Barklay of counsel appeared on behalf of Mr Falanga. Mr Falanga did not give evidence. Mr Barklay submitted that to require Mr Falanga to pay the recognisance of $20,000 is meaningless as he currently has no means or ability to pay any amount. Mr Falanga is serving the sentence that I imposed on 30 August 2012 of nine years’ imprisonment with a non-parole period of four years and six months. Mr Falanga is now 48 years of age and will be at least 50 years of age upon his release. It was submitted that upon his release back into the community, Mr Falanga will be responsible for providing for his two youngest dependants who are currently aged three and four years. It was contended that Mr Falanga has no assets and no means to pay the amount of his recognisance. Mr Barklay submitted that Mr Falanga will have much work to do rebuilding his life, remaining drug free and maintaining a law abiding life. He will need to re‑establish ties with his family, obtain housing and move on with his life.
Mr Barklay submitted that this Court should adopt the approach provided in s 13 of the Criminal (Sentencing) Act 1988 (SA) and the decision of R v Jones[2] in determining whether Mr Falanga should be ordered to forfeit the pecuniary sum attached to his bail agreement. Section 13 provides as follows:
[2] [2005] SASC 183.
13—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(1a)In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.
(2)The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
Consideration
Validity
I deal first with a preliminary issue as to the validity of the Guarantees of Bail given by Mr Falanga Senior and Mrs Falanga. Shortly after hearing their evidence, written submissions were forwarded by Mr Waye on instructions from Mr Falanga Senior and Mrs Falanga regarding the validity of their guarantees. The Director opposed the Court receiving the letter and the matter was called on for further submissions. Mr Waye submitted that the Court must be satisfied that Mr Falanga Senior and Mrs Falanga properly understood their obligations under the guarantees and the potential consequences of failing to comply with those obligations before it can be satisfied that the guarantees are valid and enforceable. This includes whether they were provided with a copy of Mr Falanga’s conditions of bail and whether the obligations were properly explained to them.
In support of this submission, Mr Waye relies on the decision of R v Rigney (No 2) (Rigney).[3] In that case, bail was granted to the accused upon conditions including the provision of two guarantors in the sum of $5,000 each. The guarantors were poorly educated, had limited ability to understand legal concepts and had very little money or assets. Perry J was critical of the procedures then available to ensure that guarantors understood their obligations under a guarantee and had the financial means to pay to the pecuniary sum attached to the guarantee.
[3] (1988) 49 SASR 389.
Perry J was considering these factors in the context of whether the amount to be forfeited should be reduced pursuant to s 19(3) of the Act. Unlike the guarantors in this matter, the guarantors in Rigney were “two people totally unsuited to be guarantors … totally without means above subsistence level”.[4]
[4] R v Rigney (No 2) (1988) 49 SASR 389, 396.
Mr Falanga Senior and Mrs Falanga’s evidence is that they did not understand the extent of their obligations or the consequences of breaching the obligations, that the guarantees were not translated to them and that they did not receive a copy of Mr Falanga’s bail agreement with the conditions of his bail. This is supported to some extent by the Mr Treacher who gave evidence that the Mr Falanga Senior and Mrs Falanga did not appear to read the guarantees and the signing of the guarantees before the Justice of the Peace was rushed due to the time of day.
The Director tendered a statement sworn by Mr George McMillan Polomka on 4 April 2013. Mr Polomka was the Justice of the Peace who witnessed the signing by Mr Falanga Senior and Mrs Falanga of the guarantees on 5 November 2010. He states that he has been a Justice of the Peace for 35 years. He has no independent recollection of the occasion on which Mr Falanga Senior and Mrs Falanga signed the guarantees. He described his practice when witnessing a guarantee of bail. He states that he reads the whole document aloud, step by step, ensuring that the guarantors understand everything. He states that if a guarantor doesn’t have a good grasp of English an interpreter would be used, either an official interpreter or a friend or family member. He requires the interpreter to swear to read out the form word for word. If he believes that a guarantor does not understand the form, he does not witness it.
Mr Falanga Senior and Mrs Falanga were given the opportunity to ask for Mr Polomka to attend for cross examination but did not take up the offer.
Although Mr Polomka has no independent recollection of the occasion on which he witnessed the signing by Mr Falanga Senior and Mrs Falanga of the guarantees, he is an experienced Justice of the Peace. I accept that he adopted the procedure outlined in his statement in respect to Mr Falanga Senior and Mrs Falanga, as he says he does in all instances. To the extent that other evidence is inconsistent with that of Mr Polomka, I prefer the unchallenged evidence of Mr Polomka. I note Mr Falanga Senior and Mrs Falanga’s son, Dominic Falanga, who was present during the signing of the guarantees was not called to give evidence.
The Act does not impose obligations on a Court or a person authorised to witness a guarantee to ensure that a guarantor understands their obligations under a guarantee. Furthermore, the Act is silent on the issue of validity of guarantees. This can be contrasted with more comprehensive provisions contained in interstate equivalents of the Act.[5]
[5] Bail Act 1977 (Vic), s 9.
Mr Falanga Senior and Mrs Falanga’s Guarantees of Bail are valid. There is no evidence to suggest otherwise.
Breach and estreatment
Mr Falanga breached the conditions of his 5 November 2010 bail agreement that he be of good behaviour and commit no violation of the law by committing the Woodville Park offending. He has admitted the breach by his guilty pleas to that offending. He has not admitted the breach in relation to the positive results of the drug testing. The results of the toxicology testing dated 5 May 2011 reveal the presence of amphetamine and methylamphetamine in Mr Falanga’s urine. In any event, the Woodville Park offending was of a far more serious nature. Accordingly, I am satisfied the Court’s power pursuant to s 19(1) of the Act to order that the pecuniary forfeitures stipulated in Mr Falanga’s bail agreement and that the Guarantees of Bail be carried into effect is enlivened.
In R v Agius,[6] Kourakis CJ observed that the stipulation of a pecuniary forfeiture in the event of a breach pursuant to s 7 of the Act serves two purposes:[7]
…First, it motivates the guarantor to actively supervise the released person to ensure compliance with the conditions of bail and it motivates the guarantor to take steps to ensure that a bailed person who breaches the conditions of bail is quickly taken back into custody. The risk of forfeiture encourages a level of supervision beyond the obligation imposed by s 17A of the Act.
…
The second purpose of the monetary sum on which guarantees are conditioned is to act as a deterrent against breaches by the person released on bail. Persons released on bail with the assurance of guarantees should know that, generally, the guarantors will forfeit the pecuniary sum stipulated by the guarantee if they breach the terms of their bail. The burden carried by the guarantors to show that the full sum should not be forfeited is a heavy one.
In that way, guarantees provide a level of assurance which allows the release on bail of persons in custody. That assurance derives from the deterrence of any breach of bail by the defendant effected by his or her knowledge that the guarantors will suffer the stipulated forfeiture if the terms of the bail agreement are breached.
If it were generally thought that guarantors could readily escape the consequences of forfeiture merely by doing all that they reasonably could to supervise bail, the deterrent effect would largely be lost. As a result, fewer prisoners might be released on bail because the courts will not be sufficiently confident to grant bail.
[6] [2012] SASC 136.
[7] R v Agius [2012] SASC 136, [5], [7]-[9].
Similarly, in Mokbel v Director of Public Prosecutions, Gillard J observed:[8]
The importance of the undertaking given by a surety cannot be overstated. The Court, once it grants bail, is not in a position to supervise obedience to the order and conditions. It relies upon a surety to perform that task. In that sense, the surety acts as both "the eyes and ears" of the Court. The surety undertakes a duty to ensure that the principal, that is, the accused, honours his undertaking to the Court to appear at trial and to attend each day of the trial. A surety must be independent and undertake a real obligation. This means that the surety must put his or her money at risk.
[8] (2006) 14 VR 405, [38].
Once s 19 has been enlivened, I have the power to order that the pecuniary forfeiture stipulated in the guarantees be carried into effect and, having made such an order, I may reduce the amount of the forfeiture or rescind the forfeiture order.[9]
[9] R v Rigney (No 2) (1988) 49 SASR 389, 400.
The full recognisance should be forfeited unless the Court is satisfied that a lesser amount should be forfeited or the order rescinded. The heavy burden of satisfying the Court that the full amount should not be forfeited is borne by the guarantor.[10] I turn to consider these principles in relation to each guarantor.
[10] Re McKinnon (1988) 146 LSJS 339; Uxbridge Justices; Ex parte Heward-Mills [1983] 1 All ER 530; [1983] 1 WLR 56.
Mr Falanga Senior and Mrs Falanga
Ms Ingleton submitted that, in the circumstances of this matter, the monetary sums guaranteeing the bail of Mr Falanga ought to be forfeited in their entirety by Mr Falanga Senior and Mrs Falanga. It was contended that the grant of Mr Falanga’s bail in the Magistrates Court was subject to significant argument and was only granted on the basis of the large monetary sums guaranteeing it.
Mr Waye submitted that I should not exercise the discretion contained in s 19(1) of the Act and order that the pecuniary forfeiture stipulated in the guarantees be carried into effect. Alternatively, he submitted that, if an order for forfeiture is made, the Court should significantly reduce the amount of the forfeiture pursuant to s 19(3)(a) of the Act.
In my view, it is appropriate to consider the application in respect of Mr Falanga Senior and Mrs Falanga together. Their evidence as to their understanding of their obligations under the guarantees and the steps they took to ensure that Mr Falanga complied with the conditions of his bail was given in very similar terms. Similarly, the financial hardship of an order for forfeiture would affect them equally.
I am not satisfied that Mr Falanga Senior and Mrs Falanga took reasonable steps to ensure that Mr Falanga complied with the conditions of his bail. I do not accept their evidence that they did not know what charges their son was facing. In any event, as guarantors whom guaranteed Mr Falanga’s bail with large monetary sums, it was incumbent upon them to enquire.
In the bail report dated 4 November 2010, Ms Skewes notes that Mr Falanga Senior and Mrs Falanga acknowledged that they could not control the behaviour of a 45 year old man. Even if they could not control him, once it became evident that he was not being of good behaviour and violating the law, they were obliged to notify the police. In my view, it would have been plainly evident prior to 14 July 2011 that Mr Falanga was not complying with his bail agreement. I reject their evidence on this topic and find that they turned a blind eye to their son’s conduct in the shed on their property. Similarly, I do not accept their reliance on regular attendance by police and community corrections officers as being sufficient to ensure that Mr Falanga was complying with the conditions of his bail.
In this respect, the following observations of Gillard J in Mokbel are relevant:[11]
The nature of suretyship provides the setting in which the present application must be considered and determined. First, to be a surety is a serious matter, and suretyship is not to be entered into lightly. Secondly, the accused person on release is entrusted by the Court to the surety, who has an obligation to ensure that he attends his trial. This requires the surety to take positive steps. It is no answer for the surety to stand by and do nothing, and then state that he or she believed that the accused would attend his trial. By signing an undertaking, the surety guarantees to the Court and the community that he or she will take steps to ensure the presence of the accused at trial. In one sense, it is a guarantee, but the legal principles relating to guarantees in commercial law do not apply to the surety's obligation.
[11] Mokbel v Director of Public Prosecutions (Vic) (2006) 14 VR 405, [42].
The third factor to which I have regard is the financial hardship that an order for forfeiture would have on Mr Falanga Senior and Mrs Falanga. I accept that they may be required to sell the Woodville Park property if they are required to pay the entire pecuniary sum attached to the guarantee. They have a large mortgage over the property and are reliant on pensions to service the debt. On the evidence before me, I accept that they have no other significant assets available.
In the Bail Enquiry report, Ms Skewes states that she spoke with Mr Falanga Senior and Mrs Falanga and that Mr Falanga Senior informed her that he owned his home and could manage surety of $50,000. Mr Falanga Senior did not inform Ms Skewes that the Woodville Park property was subject to a large mortgage. It is important that courts are able to rely upon the accuracy of the information provided in such reports.
I do not accept Mr Falanga Senior’s evidence. I find he spoke to the author of the Bail Enquiry Report and that he misled the author regarding the equity in his home. He attended the hearing of his son’s bail application. It could not have escaped his notice that his son was charged with serious offending, that the application for bail was opposed and was only granted on the basis of stringent home detention bail and on condition that his son obtained 6 guarantors, which included him and his wife. I make no finding with respect to the toluene purchase. I find that he attempted to minimise his understanding of the bail process and find that he took a passive approach to his obligations to make sure his son complied with his bail agreement.
I do not accept Mrs Falanga’s evidence regarding her lack of knowledge about the offending her son was charged with. She also attended the hearing of his son’s bail application. It also could not have escaped her notice that her son was charged with serious offending, that the application for bail was opposed and was only granted on the basis of stringent home detention bail and on condition that her son obtained six guarantors, which included her and her husband in the sum of $25,000 each. I find that she also attempted to minimise her understanding of the bail process and took a passive approach to her obligations to make sure her son complied with his bail agreement.
Having regard to the all of the above considerations I am satisfied that pursuant to s 19(1) of the Act the pecuniary forfeiture of the amount stipulated in the guarantees of Mr Falanga Senior and Mrs Falanga should be carried into effect. Pursuant to s 19(3)(a) of the Act, it is fair and just to reduce the amount to be forfeited to $10,000 in respect of Mr Falanga Senior and $10,000 in respect of Mrs Falanga on the ground of financial hardship.
Mr Treacher
I am satisfied that Mr Treacher sufficiently understood his obligations under the guarantee. Mr Treacher failed to take reasonable steps to ensure that Mr Falanga complied with the conditions of his bail. He attended the Woodville Park property on only four to six occasions during the eight months that Mr Falanga was on home detention, and only then by invitation. There was no other evidence that Mr Treacher had any other contact with Mr Falanga during that period or made enquiries as to Mr Falanga’s compliance with the conditions of his bail. Mr Treacher failed to meet his obligations under the guarantee.
I find that he attempted to minimise his obligations and took a passive approach to his obligations to make sure Mr Falanga complied with his bail agreement.[12]
[12] R v Vella (Unreported, District Court of South Australia, Judge Lunn, 9 November 1994).
I am satisfied that the pecuniary forfeiture stipulated in Mr Treacher’s guarantee should be carried into effect. Mr Treacher has failed to establish that it would be fair and just that the $5,000 he lodged with the Court not be forfeited or that a lesser amount be forfeited.
Mr Kempin
I am satisfied that Mr Kempin sufficiently understood his obligations under the guarantee. Mr Kempin failed to take reasonable steps to ensure that Mr Falanga complied with the conditions of his bail.
Although Mr Kempin did not appear at the proceedings and was not served with the summons to attend, he was aware of the proceedings. He provided a statutory declaration outlining his understanding of his obligations under the guarantee and the steps he took to comply with those obligations. I am satisfied that I have the power to deal with the application in his absence.
I find that Mr Kempin also attempted to minimise his obligations and took a passive approach to his obligations to make sure Mr Falanaga complied with his bail agreement. Mr Kempin has failed to establish it would be fair and just that the $4,000 he lodged with the Magistrates Court not be forfeited or a lesser amount be forfeited.
Mr Falanga
To relieve Mr Falanga from forfeiting the monetary sum that he agreed to forfeit in the event that he breached a condition of his bail would render the attaching of a monetary sum to the bail agreement meaningless.
Section 13 of the Criminal Law (Sentencing) Act 1988 (SA) has no application to estreatment proceedings. Section 19(3) of the Bail Act 1985 (SA) permits the Court “at any time for any sufficient reason … to reduce the amount of forfeiture or rescind the order for forfeiture”. The authorities I have referred to earlier in this decision, while dealing primarily with estreatment against guarantors, apply equally in respect of the estreatment application against Mr Falanga.
Mr Falanga committed serious breaches of the conditions of his bail. The breaches included further firearm and drug offending. There was no evidence or submission made that Mr Falanga did not understand the conditions of his stringent bail agreement.
Mr Falanga, like his guarantors, entered into a serious contract with the Court. His breaches of his bail agreement have caused his guarantors to suffer pecuniary forfeiture. He, like the guarantors, must suffer pecuniary forfeiture. To do otherwise would undermine the Court’s power to grant bail. It would render the deterrent effect of stipulating pecuniary forfeiture meaningless. Mr Falanga abused the privilege of home detention bail. The pecuniary forfeiture of $20,000 stipulated in Mr Falanga’s bail agreement is carried into effect.
Orders
The orders are:
1.The pecuniary forfeiture stipulated in the Guarantee of Bail of Antonino Falanga given 5 November 2010 is reduced to $10,000 and carried into effect.
2.The pecuniary forfeiture stipulated in the Guarantee of Bail of Angela Falanga given 5 November 2010 is reduced to $10,000 and carried into effect.
3.The pecuniary forfeiture of the sum of $5,000 stipulated in the Guarantee of Bail given by Adam Treacher on 5 November 2010 and lodged with the Magistrates Court be carried into effect.
4.The pecuniary forfeiture of the sum of $4,000 stipulated in the Guarantee of Bail given by Blake Kempin on 5 November 2010 and lodged with the Magistrates Court be carried into effect.
5.The pecuniary forfeiture of $20,000 stipulated in Mr Falanga’s bail agreement dated 5 November 2010 be carried into effect.
Appendix A – Bail Enquiry Reports
Bail Enquiry (Home Detention) Report
Bail Enquiry Report
Appendix B – Bail Agreement
Appendix C – Guarantees of Bail
Mr Falanga Senior
Mrs Falanga
Ms Saveria Guida
Mr Salvatore Guida
Mr Treacher
Mr Kempin
Appendix D – Sentencing Remarks
IN THE DISTRICT COURT
CRIMINAL JURISDICTION
ADELAIDE
THURSDAY, 30 AUGUST 2012 AT 9.40 A.M.
BEFORE HER HONOUR JUDGE BAMPTON
NOS.DCCRM-10-434, 2011-297, 2011-1099 & 2011-2110
R v CARMELO FALANGA
HER HONOUR IN SENTENCING SAID:Carmelo Falanga, on file 434/2010, you have pleaded guilty to Count 1 on the information, dated 22 March 2010 to possessing a firearm without a licence, namely a class H firearm.[13] I will refer to this offending as the Urrbrae firearm offending.
[13] The maximum penalty for this offence is a fine of $35,000 or imprisonment for 7 years.
On file No.297/2011 you have pleaded guilty to Count 1 on the information, dated 28 March 2011 to possessing a firearm without a licence, namely a class D homemade automatic machine gun,[14] and Count 2, possessing a firearm without a licence, namely a class H Smith & Wesson six shot revolver.[15] I will refer to this offender as the Newport firearms offending.
[14] The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years.
[15] The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years.
On file No.1099/2011, you have pleaded guilty to Count 2 on the information dated 18 July 2011 to manufacturing a controlled drug for sale at Norwood and count 3, manufacturing a controlled drug for sale at Hilton.[16] I will refer to this offending as the Norwood/Hilton drug offending.
[16] The maximum penalty for manufacturing a controlled drug for sale is a fine of $50,000 or imprisonment for 10 years or both.
On file No.2110/2011, you have pleaded guilty to Count 1 on the Magistrates Court information dated 18 October 2011, to manufacturing a controlled drug for sale[17] and Count 3, aggravated possession of a firearm without a licence, namely a class H firearm.[18]
[17] The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years or both.
[18] The maximum penalty for this offence is a fine of $50,000 or imprisonment for 10 years.
On file No.2110/2011 you have also pleaded guilty to Count 1, aggravated create risk of serious harm[19] and two counts of simple possession,[20] in satisfaction of the information dated 16 April 2012.
[19] The maximum penalty for this offence is imprisonment for 12 years.
[20] The maximum penalty for simple possession is a fine of $2,000 or imprisonment for two years or both.
I will refer to the offending that is the subject of file No.2110/2011 as the Woodville Park offending.
The maximum penalties for each of the offences you have pleaded guilty to are set out in the Prosecution Outline of Offending and Maximum Penalties.
URRBRAE FIREARM OFFENDING
The circumstances of your offending with respect to the Urrbrae firearm offending are that on 18 July 2008 Federal Police officers obtained a warrant to intercept telephone calls to a mobile service registered to you. On 26 and 27 February 2008, a number of telephone calls and text messages were intercepted between your mobile service and a mobile service registered to an employee of yours. Those telephone intercepts revealed that you had asked your employee to collect the firearm and courier it to another person in Adelaide. Your employee collected the firearm from you. On 26 February 2008, police intercepted a Landcruiser on Cross Road, Urrbrae, the driver of the vehicle was your employee.
In a handbag in the front well of the front passenger seat police located a .45 calibre pistol. Whilst there was no round in the chamber of the pistol there was seven rounds of ammunition in the magazine.
Police also located a Jennings .22 calibre handgun inside the centre console of the vehicle.
You were arrested and charged on 8 May 2009 with two counts of possessing a firearm without a licence. Your plea of guilty to count 1 is in satisfaction of the information dated 22 March 2010. You pleaded guilty to possession of the firearm prior to your employee collecting it.
VICTORIAN BAIL
On or about 21 August 2008, you were arrested and charged and bailed in Victoria for Commonwealth offending relating to the alleged importation of MDMA. The conditions of your bail permitted you to reside in South Australia.
NEWPORT FIREARM OFFENDING
Whilst on bail for the Urrbrae firearm offending and subject to the Victorian bail agreement you committed the Newport firearms offences. The circumstances of the Newport firearms offending are that on 20 July 2010 police searched premises at Newport and located two firearms in a manhole in a ceiling of a sauna. One firearm was a homemade fully automatic submachine gun. The other firearm was a Smith & Wesson .357 revolver. The submachine gun had a magazine taped to its side which contained 23 unfired cartridges of ammunition. The revolver was loaded with six unfired cartridges of ammunition.
Telephone intercept evidence supports inferences that you lived at the Newport address where the firearms were found and that you had knowledge of and control over those firearms.
On 15 August 2010 you were arrested and charged with the Newport firearms offences as well as the drug offending which is the subject of file No.1099/2011. You were refused bail and remanded in custody.
NORWOOD/HILTON DRUG OFFENDING
Whilst on bail for the Urrbrae firearm offending and subject to the Victorian bail agreement, you also committed the Norwood/Hilton drug offences. The circumstances of the Norwood and Hilton offending are that in May 2010 the Organised Crime Investigation Branch commenced Operation Despatch. You were one of the main targets of this covert investigation. As a result of surveillance and telephone intercepts, police identified premises at Norwood and Hilton where you and other persons associated with you had been engaged in the manufacture of methylamphetamine.
On 29 July 2010 police raided a house at Moulden Street, Norwood. They located a clandestine laboratory and evidence that a manufacture of methylamphetamine had recently taken place.
Your co-accused, Andrew Trzesniowski, was arrested on 29 July 2010 and charged in relation to this clandestine laboratory.
On 11 August 2010, police intercepted your other co-accused, Zenon Joannou, as he drove away from premises at Bagot Avenue, Hilton. The premises were searched and a clandestine laboratory located with all of the chemicals and apparatus required to extract pseudoephedrine from pharmaceutical preparations, convert pseudoephedrine into methylamphetamine and purify crude methylamphetamine. Although methylamphetamine production was not occurring at the time of police attendance, residues indicated some items had been used during a recent methylamphetamine production.
A total of 8g of methylamphetamine was detected in various liquids which were sampled at the scene. Numerous packages of cold and flu preparation containing pseudoephedrine were located at the premises. In the opinion of the forensic chemist, it would have been possible to produce 21g of methylamphetamine from the quantity of pseudoephedrine located. There were also sufficient quantities of iodine and hypophosphorous acid at the premises to enable a manufacture of this size.
As I have already stated, you were arrested on 15 August 2010 and charged with the Newport firearms offences and this drug offending. You were refused bail and remanded in custody.
On 5 November 2010, you were released on home detention bail. I note at this juncture that your pleas to the Norwood/Hilton drug offences were accepted in satisfaction of the information dated 18 July 2011.WOODVILLE PARK OFFENDING
I now turn to the Woodville Park offending. Whilst on bail for the Urrbrae and Newport firearms offences, and the offending which is the subject of the file No.1099/2011, and subject to the Victorian bail agreement, you committed the Woodville Park offending.
The circumstances of the offence of Aggravated Create Risk of Serious Harm are that on 14 July 2011, whilst on home detention bail, you were living at your parents’ home as Brooker Court, Woodville Park. The premises are situated on the corner of Brooker Court and Dale Street.
You lived in a shed at the rear of the premises. The shed opened onto Dale Street.
At approximately 8.40 a.m. on 14 July 2011, police officers parked in Dale Street, immediately adjacent to the property. The police officers were in plain clothes but were wearing high visibility vests bearing the word ‘police’ on the back and the front. CCTV cameras were installed in the shed and showed the area up and down Dale Street. A camera was also installed showing Brooker Court. All cameras could be monitored from within the shed.On 14 July 2011 the cameras were operating and you could see police in Dale Street. You knew that they were police officers and you refused them access to the shed. You discharged four rounds of a .38 handgun shortly after police arrived. Three police officers were in the immediate vicinity of the shed when each of the shots was fired. The handgun was located in the shed by police after the incident and is the subject of Count 3 on the Magistrates Court Information dated 18 October 2011.
The facts giving rise to Count 1 on the Magistrates Court information dated 18 October 2011 are that following the shooting police located glassware and chemicals in the shed associated with the manufacture of methylamphetamine. Further, all chemicals and equipment required to extract pseudoephedrine from pharmaceutical preparations were present, along with all the chemicals and most of the equipment required to produce methylamphetamine from extracted pseudoephedrine. There was also evidence of a previous manufacture.
There was enough pseudoephedrine present to manufacture 6.6g of methylamphetamine. There were sufficient quantities of chemicals to produce 180g of methylamphetamine if a sufficient amount of pseudoephedrine was present.
A quantity of 220g of powder was also located in the shed. The powder tested positive for the presence of a controlled drug and is the subject of one count of simple possession you have pleaded guilty to. It is not disputed that your possession of the powder was for the purpose of using it as a cutting agent.
It is also not disputed that the cocaine located in the shed that is the subject of the other count of simple possession was for your personal use.
You were arrested and charged for the offences relating to the offence that occurred on 14 July 2011, and remanded in custody without bail.
At committal you entered guilty pleas to manufacturing a controlled drug for sale and possessing a firearm without a licence. You pleaded not guilty to the more serious offences of aggravated threatening life and trafficking you were charged with.
Your trial in respect of the Woodville Park offending was listed for hearing commencing 16 April 2012. Following negotiations you entered pleas on 16 April 2012 to the lesser offence of aggravated create risk of serious harm and two counts of simple possession.
DEFENCE SUBMISSIONS
Your counsel told me that you put forward an explanation for the offending but do so appreciating the serious of the offending and the aggravated features to much of that offending. All but one of your offences was committed whilst on bail for other serious offences.
In your counsel’s words you appreciate the muck you have made of your life. Your counsel asked me to extend mercy in setting a non-parole. It was submitted that I should have regard to your prospects of rehabilitation, your pleas of guilty, your lack of prior conviction, your demonstrated work ethic, your vulnerable family, particularly your children, the time you have already spent in custody, your health and your personal circumstances.
With respect to the Urrbrae offending it was submitted that a friend had died and you were cleaning out his house when you discovered the firearm. You wanted to keep the firearm from your friends’ family so you kept it. I am told that the purpose of your possession of the gun was not associated with any criminality. It was submitted that you agreed to loan the firearm to a friend as comfort. I am not able to accept your account in its entirety as it is an account given by your counsel on your instructions and not in evidence on oath. I find the account improbable, having regard to the intercept evidence and other material before me. In any event, the seriousness of your firearm offending is your admitted possession of the firearm whilst unlicensed.
I heard submissions about how your life began to spiral downwards after you lost a lot of money and that of family and friends in 2009/2010. I heard about a business arrangement you entered into with a third party to get yourself out of debt and pay back your family and clients. I heard about how you developed a dependence on amphetamines, how your life started to fall apart and the significant health problems you endure.
It was submitted the Newport firearm offending was part and parcel of what was going on in your life at that time. You became aware that the third party had arranged for the firearm to be stored in the roof of the property. There is no evidence to support or refute this. However, again the seriousness of your offending is the fact of your knowledge and the admitted possession of the firearms.
It was submitted that your role was to oversee the manufacturing of the methylamphetamine at Hilton and Norwood and that you did so at the behest of a third party. Your role, I am told, was to provide assistance to the cooks and you were to receive a reduction in a debt you owed to the third party for your assistance. It was also submitted that at this stage you were very subservient to the third party.
With respect to the Norwood manufacture, it was submitted that you were told to give Mr Trzesniowski what he needed to facilitate the manufacture. It was submitted that you believed Trzesniowski would keep half of the product and you would keep the other and hand it to the third party; and the benefit to you was that you would be released from your debt to a third party. It was submitted the same arrangement was in place with respect to the manufacture at Hilton.
It was also submitted that you were performing menial tasks in the production to assist the manufacture.
I was told that you do not have a background in trading and your involvement in the Norwood/Hilton manufacturing was isolated and over a 12-day period.
Again your explanation for the Norwood/Hilton manufacture offending is an account given by your counsel on your instruction and not in evidence on oath; you did not wish to give evidence on this topic.As I have previously stated, it is my view based on the material before me, that your role in the Norwood/Hilton offending is above the role of the cooks. As you were overseeing the manufacturing process your role was higher up the chain of command than that of your co-accused.
The prosecution does not accept the nature of your asserted beholding relationship to a third party.
However, your offending is viewed, you were a principal facilitator of serious drug manufacturing.
With respect to the Woodville Park offending you pleaded guilty in the Magistrates Court to the manufacturing charge and the possession of the firearm and it was submitted that you should be given full credit for that.
It was also submitted that there should be full credit for the pleas you ultimately entered with respect to the simple possession counts.
With respect to the aggravated create risk of serious harm, it was submitted that you pleaded guilty almost immediately after the more serious charges against you were withdrawn and you were charged with this offence.
It was submitted that at the time of the Woodville Park offending you were living in a shed at the back of your parents’ home and you were severely restricted in your movements and not able to see your family whilst you were on home detention.
I have had regard to the photographs tendered during submissions depicting the conditions that you were living in at this time. It was submitted that the conditions were depressing for you, that you had problems with your marriage at the time and you had minimal contact with your children.
I have had regard to the submissions and the reports regarding your family, your physical and mental health conditions and that of members of your family. I have also had regard to the letter written to me by your wife.
The psychologist, Cathryn Saunders, stated in her report that you consulted her on 14 June 2011. Ms Saunders reported that you felt guilt and shame at the consequences you had brought upon your family and yourself. You told Ms Saunders about how you and your family used to have pride in your accomplishments and how that has been replaced with a sense of shame and that you have destroyed your family.
You described to Ms Saunders how you worked hard to support your parents and family but due to a series of betrayals and poor decisions, you have lost everything.
Your counsel submitted that in sentencing you for the Woodville Park offending I should take note that you were never directly threatening to the police. I was referred to statements wherein you say ‘Go away, I have a gun’ and ‘If you don’t leave me, I am going to commit suicide’ and ‘I will shoot myself in the head’.
It was submitted that on 14 July 2011 you were sitting on a bed contemplating killing yourself. You accept that you fired shots into the ceiling. You say that you turned the gun to your head and then it fired into the roller door. You knew police were around the shed, you could see them on the surveillance camera. You accept by your plea that in firing the shots you were aware that you could create risk and you were reckless about whether that created a risk of serious harm to the police.It is apparent from reading the report of the psychiatrist Dr Raeside and the psychologist Ms Saunders and submissions made by your counsel that you reported that your emotional and psychological state at the time of the Woodville Park offending was very low and you were threatening to kill yourself.
I repeat, I have had regard to all the submissions and reports about your mental health as at July 2011. Whilst this does not excuse your behaviour it does provide an explanation.
You are now 46 years old. You have a son and daughter from your first marriage. Upon your second marriage you became a parent to your wife’s two children, now aged 18 and 12. You have a daughter aged four and a son aged three from your second marriage. It was submitted that your six children are a powerful motivating factor for you to rehabilitate and remain offence free once you get out of custody.
I heard submissions about your industrious working life beginning with your work in the mining industry. It was submitted that there is good reason to consider that upon your release from custody you are going to take hold of your life and continue in the way you did up until your offending in 2010.
Your imprisonment is very difficult for your children and your wife. I note the close relationship that you have with all of your children. The fact that you have failed your family weighs heavily on you. I am also told being in custody for over 12 months has had a profound effect on.
Dr Raeside considers that you have a chronic adjustment disorder with mixed anxiety and depressed mood.
I note that you have had significant health problems over the years. I note that you underwent spinal surgery for spurs impinging on your sciatic nerve and that whilst in custody you are not able to access the narcotic analgesics that you used for back pain whilst in the community.
You told Dr Raeside that prior to your current incarceration, you were smoking in excess of one gram per day of methylamphetamine. Dr Raeside is of the opinion that you would benefit from participating in a drug rehabilitation program focusing on relapse prevention so that upon your release you will have appropriate strategies to avoid returning to amphetamine use whilst under stress. I also note that you are currently prescribed antidepressant medication.
Dr Raeside considers your rehabilitation prospects are good if you can adequately deal with your drug use and address the various stressors that have affected you in recent times.
PROSECUTION SUBMISSION
I have had regard to the submissions made by the prosecutor about the number of aggravating features to your offending. In particular, your offending whilst subject to bail agreements.
I note with respect to the Urrbrae and Newport firearms offending that all firearms were loaded. The prosecutor submitted that aggravation was not alleged in relation to these offences because the firearms were not carried on your person or in your direct immediate physical possession. Nevertheless, the fact that the firearms were loaded is a circumstance of aggravation.
It is a circumstance of aggravation with respect to the Woodville Park offending that the firing of the shots involved police officers in the execution of their duty. People who commit offences against police officers in the execution of their duty cannot, in the absence of exceptional circumstances, expect leniency from the court. Further, your elderly parents were in the premises immediately adjacent to the shed at the time of the shooting and there was a potential risk posed to any civilians who were in the vicinity at the time the shots were fired.
I have also had regard to s.44 of the Controlled Substances Act with respect to your drug offending.
TIME IN CUSTODY
There is no time in custody referable to the Urrbrae offending. You were in custody from 15 August to 5 November 2010 in respect of the Newport firearms offending and the Norwood/Hilton offending. You were granted home detention bail on 5 November 2010. You are therefore entitled to a reduction for your time in custody in the sentence I impose with respect to the Newport firearms offending and the Norwood/Hilton offending.
You are not entitled to any discount for your time on home detention bail due to the Woodville Park offending.
You have been in custody since 14 July 2011.
ANTECEDENTS
You do not have any previous convictions for major drug offending. You have convictions for possessing indian hemp and amphetamines for which you were convicted and fined. You have a conviction in 1998 for collecting weapons when not licensed for which you were also fined.
SENTENCE
I now turn to your sentence. I must take into account in sentencing you that you have engaged in very serious offending. I have had regard to the authorities referred to by the prosecution. The manufacturing of methylamphetamine, particularly for commercial purposes, is extremely serious offending. Parliament expects the imposition of penalties that are likely to act as a general deterrent to those who are tempted to engage in this type of offending.
I have borne in mind the decision in The Queen v Sarandoglou where reference was made to the prevalence and seriousness of this type of drug offending and that clandestine laboratories in residential premises are part of the broader picture of the drug trade with significant adverse social effects. The risk of injury to innocent bystanders is of particular significance when sentencing for this type of offending.
You also know from your own experience how harmful and insidious drugs are to people, their families and the community.
Your possession of the firearms without a licence is also very serious offending. The Firearms Act strictly controls the possession, use and sale of firearms to ensure the community is protected.
In sentencing you for the aggravated create risk of serious harm offence I have had borne in mind that police officers perform an important role in the public interest and they must be protected as they pursue their duties. For this reason general deterrence is a particularly important consideration when sentencing for offending against police officers.
The sentence that I impose must serve as a deterrent to you, in order that you do not re-offend. I must also impose a sentence that conveys a message to others that the type of offending that you have committed is serious offending that will be severely punished.
With respect to the Urrbrae firearm offending I would have sentenced you to nine months imprisonment. On account of your guilty plea, your contrition and remorse and taking all matters into consideration, I reduce that to six months imprisonment.
With respect to the Newport Firearms offences and the Norwood/Hilton drug offences all committed during July and August 2010 I use s 18A of the Criminal Law (Sentencing) Act and impose one sentence in respect of all four offences. I have given consideration to the individual sentences that I would have imposed for each offence and then considered whether those sentences should be concurrent, partially concurrent or cumulative. The sentences for the firearm offences should be at least partially concurrent as should the sentences for the manufacturing offences. The resultant firearms sentence should be cumulative upon the resultant manufacturing sentence.
I would have sentenced you to six years imprisonment. On account of your guilty plea, your contrition and remorse and taking all matters into consideration I reduce that sentence to four years, three months imprisonment. I deduct three months on account of your time in custody, leaving a sentence of four years imprisonment for this offending.
With respect to the Woodville Park offending I again use s 18A of the Criminal Law (Sentencing) Act and impose one sentence in respect of all five offences. Again, I indicate I have given consideration to the individual sentences that I would have imposed for each offence and then considered whether those sentences should be concurrent, partially concurrent or cumulative. The sentences for the drug offences should be concurrent. The sentence for aggravated create risk of serious harm should be partially concurrent with the firearm sentence and cumulative upon the sentence for the drug offending.
I would have sentenced you to six years, six months imprisonment. On account of your guilty pleas, your contrition and remorse and taking all matters into consideration I reduce that to four years, six months imprisonment.
The sentences I have just imposed of six months, four years, and four years six months, are cumulative one upon the other, leaving a head sentence of nine years imprisonment.
I have been mindful not to impose an overall sentence that is crushing.
In setting a non-parole period I bear in mind that the non-parole period is a minimum term of imprisonment to meet the punitive, protective and rehabilitative purposes of punishment.Your guilty pleas demonstrate your contrition and remorse. I have had particular regard to the submissions made and the matters set out in the various reports before me regarding your health, your family and your prospects of rehabilitation.
Taking into account all of these matters I set a non-parole period of four years, six months imprisonment.
The head sentence of nine years and the non-parole period of four years six months are backdated to 14 July 2011.
REPEAT SEROUS OFFENDER APPLICATION
The prosecution sought a declaration that you are a repeat serious offender pursuant to s 20B of the Criminal Law (Sentencing) Act.
By virtue of your pleas of guilty to the Norwood and Hilton manufacturing offences, the Woodville Park manufacturing offence and the aggravated create risk of serious harm, you have been convicted of four separate serious offences and, accordingly, s 20B of the Criminal Law (Sentencing) Act has been enlivened.
Making a s 20B declaration is only justified where protection of the community is called for. In determining whether to make such a declaration an issue to be considered is whether your history warrants a particularly severe sentence in order to protect the community that is longer than a proportionate sentence.
I have taken into account your lack of prior offending of this magnitude, the seriousness of the offences before me, your age, your prospects of rehabilitation, the likelihood of you further offending and the nature of your offending having regard to the protection of the community.
Taking all of these matters into consideration, as is evident from the non-parole period I just imposed I have declined to make the order sought.
FORFEITURE
Finally, I order forfeiture pursuant to s 299A of the Criminal Law Consolidation Act of: firstly, the two firearms and ammunition seized at Urrbrae on 26 February 2008; secondly, the two firearms, a magazine and all ammunition seized at the Newport address on 20 July 2010; thirdly, the firearms seized from Woodville Park on 14 July 2011.
I also order forfeiture pursuant to s 52E(7) of the Controlled Substances Act of all the controlled substances, precursors and/or equipment seized from or in relation to Murray Street, Albert Park.
I also order forfeiture of all the controlled substances, precursors or equipment seized from or in relation to Bagot Avenue, Hilton on or about 11 August 2010, and all the controlled substances, precursors and/or equipment seized from or in relation to Brooker Court, Woodville Park on or about 14 July 2011.
I further order that you are disqualified from holding or obtaining a firearms licence until further order pursuant to s 34A(2)(a) of the Firearms Act.
Is there anything I have overlooked?
MS INGLETON: No. Indeed, I invite your Honour to review and withdraw the order in relation to the substances, precursors and equipment from Bagot Avenue. Another offender has been arrested. He’s been charged in relation to the offending involving Norwood. He’s contesting the matter. It may be that the Bagot Avenue, Hilton exhibits are required.
HER HONOUR: In that event I rescind the order I have made with respect to forfeiture of the substances, precursors and equipment seized from or in relation to Bagot Avenue, Hilton on or about 11 August 2010.
Is there anything I have overlooked?
MR BARKLAY: No.
ADJOURNED 10.15 A.M.