R v Perre
[2017] SASC 102
•5 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PERRE
[2017] SASC 102
Ruling of The Honourable Chief Justice Kourakis
5 July 2017
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application for review of bail.
The applicant was charged with offences arising out of cultivating and trafficking drugs as well as the unlawful possession of Class C firearms.
The applicant had a number of conversations with others discussing monetary proceeds from the sale of cannabis and cultivating cannabis on his brother’s property. After a police search of that property, where cannabis was found, the applicant had another conversation where he referred to the location of hidden firearms which police had also found on the premises.
Pursuant to s 10A(2)(e) of the Bail Act 1985 (SA)(the Bail Act) there is a presumption against bail where an applicant is taken into custody in relation to a serious firearm offence. Pursuant to s 20AA(1)(d) of the Criminal Law Sentencing Act 1988 (SA) (the CLSA), a serious firearm offence is an offence against the Firearms Act 1977 (SA) involving the use or possession of a firearm in the course of, for the purpose of, or the commission of, serious drug offending.
The question arising on the appeal is whether the applicant’s possession of the firearms occurred in the course of, or was for purposes related to, the commission of the charged drug offences. If that is the case, the presumption of bail is reversed.
Held per Kourakis CJ, application for review allowed, application for fresh grant of bail refused:
1. In determining whether an applicant is a prescribed applicant for the purposes of s 10A(2)(e) of the Bail Act and therefore whether serious drug and firearm offending are related contrary to s 20AA(1)(d) of the CLSA, the Court must be satisfied that there is a reasonable basis for the allegations charged (at [12]). R v Lombardi (2013) 115 SASR 577 qualified, R v Briggs (2014) 119 SASR 237 not followed.
2. On the basis of conversations between the applicant and others discussing the sale and cultivation of drugs and the location of the hidden firearms, as well as the proximity of the firearms to the drugs there is a reasonable basis for the charges alleged. The applicant is a prescribed applicant for the purposes of s 10A(2)(e) of the Bail Act 1985 (SA) (at [17]-[19]).
3. Special circumstances do not exist for granting bail (at [21]-[24]).
Bail Act 1985 (SA) s 10A; Criminal Law Consolidation Act 1935 (SA) s 20AA, referred to.
R v Briggs (2014) 119 SASR 237, not followed.
R v Lombardi (2013) 115 SASR 577, discussed.
R v PERRE
[2017] SASC 102Criminal: Application for Review of Bail
KOURAKIS CJ: On 15 June 2017 the applicant was taken into custody on five charges for offences alleged to have been committed on 6 January 2017. The offences are:
·Cultivate a controlled plant intending to sell products of those controlled plants (s 33B(3) of the Controlled Substances Act 1984 (SA) (the CSA).
·Without reasonable excuse had possession of prescribed equipment (s 33LA of the CSA).
·Had in his possession two class C firearms, namely a pump-action shotgun and a self-loading rifle whilst not holding a firearms licence (s 11(1) of the Firearms Act 1977 (SA)).
·Being a person other than a dealer had possession of class C firearms and failed to keep those firearms secured (reg 38(2) and 61 of the Firearms Regulations 2008 (SA)).
·Trafficked in a commercial quantity of a drug (s 32(2) of the CSA).
The drug in the first and last count is alleged to be cannabis. The firearms were found concealed behind cladding in the shed structure in which the cannabis was cultivated.
The charging of those firearms offences at the same time as charging for the cannabis cultivation raises the question of whether the applicant is a prescribed applicant for the purposes of s 10A of the Bail Act 1985 (SA) (the Bail Act) and whether, therefore, the presumption of bail is reversed. That question turns on whether the firearms were used or possessed in the course of, or for a purpose related to, the commission of a serious drug offence.
Section 10A of the Bail Act provides:
10A—Presumption against bail in certain cases
(1)Despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant’s release on bail.
…
(2)In this section—
prescribed applicant means—
…
(e) an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988).
The Director relies on subparagraph (e) of s 10A(2).
Section 20AA of the Criminal Law (Sentencing) Act 1988 (SA) provides:
20AA—Interpretation
(1)In this Division—
serious drug offence means an offence against section 32, 33, 33A, 33B, 33C, 33F, 33G, 33H, 33I, 33J, 33K, 33LA or 33LB of the Controlled Substances Act 1984;
…
serious firearm offence means—
…
(d) an offence against the Firearms Act 1977 involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence; or
…
A serious drug offence includes offences charged in counts 1 and 5.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 20AA.
It is therefore accepted that the CSA offences with which the applicant is charged are serious drug offences.
The question, therefore, is whether or not, on this application, it should be accepted that the applicant’s possession of the firearms occurred in the course of, or was for a purpose related to, the commission of those drug offences.
I had cause to consider the construction of those provisions in R v Lombardi[2] (Lombardi). There I held that whether or not the applicant was a prescribed applicant was to be determined on the basis of the allegations made by the prosecution in relation to the charges on which the applicant has been taken into custody:[3]
[2] (2013) 115 SASR 577.
[3] (2013) 115 SASR 577 at 581, [13]-[19]
[13]The following two matters should be noticed about s 10A(2) of the Bail Act. First, persons who are alleged to have committed offences of a kind to which makes them a prescribed applicant can, generally, be considered to pose a relatively higher risk to the public if released on bail than many other categories of offenders. The reversal of bail for applicants alleged to have committed offences of those kinds shows that Parliament intended to provide the public with a high level of protection from the risk inherent in releasing prescribed applicants into the community.
[14]Secondly, leaving aside s 10A(2)(e) which is contended by the Director to enliven the reversal of the presumption in this case, all of the other subparagraphs condition the presumption against bail on the making of an allegation that the offending was committed in the circumstances set out in each subparagraph. For example, s 10A(2)(bb) of the Bail Act, in its reference to a person who is a serious and organised crime suspect, picks up the definition of serious and organised crime suspect in s 3A of the Bail Act which defines a suspect by reference to a charge of a serious and organised crime offence. A serious and organised crime offence is in turn defined by the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) to mean offences against particular provisions of the CLCA and other Acts ‘if it is alleged that offence was committed’ in circumstances connected with a criminal organisation. If a person is so charged, a bail authority may, pursuant to s 3A of the Bail Act, declare that person to be a serious and organised crime suspect. In relation to other subparagraphs the presumption against bail is enlivened simply on an applicant having been taken into custody in relation to an alleged offence of a kind prescribed by those subparagraphs.
[15]However, s 10A(2)(e) refers to a person taken into custody in relation to a serious firearm offence as defined by Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the CLSA’). Relevantly to this application, s 20A of the CLSA defines a serious firearm offence as an offence committed against the Firearms Act 1977 (SA) (‘the Firearms Act’) ‘involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence’. It is accepted here that the respondent has been charged with a serious drug offence as a result of the possession of amphetamine on the same day and in the same house as the offence against the Firearms Act.
[16]However, it will be noticed that a serious firearm offence for the purpose of s 20AA CLCA is not defined as an offence alleged to have been committed in the course of, or for a purpose related to, the commission of a serious drug offence. The reason for that is found in s 20AAC of the CLSA. That section provides that, save in an exceptional case, a sentencing court must not suspend a sentence of imprisonment imposed on a serious firearm offender. The section contemplates that a sentencing court will make a finding as to whether or not a defendant is a serious firearm offender as part of the sentencing process. Indeed it might even be that the allegation will have been included in the particulars of the offence as a matter of practice or that alternatively a jury has determined both the firearm offence and drug offence in the same trial.
[17]Counsel for the Director of Public Prosecutions invited me to find that s 10A(2)(e) of the Bail Act is enlivened by making a factual finding on the basis of the affidavit material that the respondent is a person who has committed a serious firearm offence. I reject that submission. A court is not in a position in a bail hearing to reach a conclusion as to the guilt of the respondent on the charges on which he seeks bail.
[18]However in my view, consistently with the other subparagraphs of s 10A(2) of the Bail Act, subparagraph (e) should be construed to refer to an applicant who has been taken into custody in relation to a firearm offence which is alleged to be a serious firearm offence as defined by s 20AA of the CLSA. The charge that the respondent possessed in his home a sawn off shot gun allegedly at the same time that there was present in that home amphetamine brings the respondent within the terms of s 10A(2)(e) of the Bail Act.
[19]I find therefore that the respondent’s application for bail is governed by s 10A of the Bail Act and it falls for the respondent to establish the existence of special circumstances justifying his release on bail.
(emphasis in original)
In R v Briggs[4] (Briggs) Sulan J took a different view. Sulan J held that:[5]
[19]… the appropriate course is to consider the available evidence and determine whether, taking the Crown case at its highest, it is capable of supporting an allegation that the firearm offence involved the use or possession of the firearm in the course of, or for a purpose related to, the commission of the serious drug offence.’
[4] (2014) 119 SASR 237
[5] (2014) 119 SASR 237 at 244, [19].
Insofar as that passage suggests that the magistrate or judge hearing the bail application is required to consider the declarations in support of the charges laid and consider whether, in effect, there is a prima facie case, I respectfully disagree. That would be largely impracticable. Parliament must have contemplated that bail applications would often be made well before those declarations were available. It is for that reason that I construed the provisions and their relevant interaction to require no more than that there be, on the prosecution allegations as manifested in the charges, and relating to them, the connection required by that section.
I would qualify what I said in Lombardi, only to the extent there must be a reasonable basis for the allegations or, at least, that it is not shown that the allegations are unreasonable. In the ordinary course that would go without saying, in that the obligations of the Director of Public Prosecutions are such that one would expect that charges would, at the very least, have a reasonable basis. I do not mean to suggest that there is a conclusive presumption to that end and, indeed, this application has proceeded on the basis that the reasonableness of the alleged connection must be shown. So understood, there is little practical difference between the approach I took in Lombardi and the approach of Sulan J in Briggs.
The material on which the DPP relies is set out in the witness statement of Detective Tiss who deposes to a course of intercepted conversations between the applicant and his relatives who lived in Renmark at the place where the cannabis and the firearms were found. The applicant accepts that his legal practitioners have had access to at least some of the material parts of the intercepted conversations. It is not alleged that the tapes do not disclose any such conversations; the applicant does not allege that, on the face of them at least, it is not the applicant who is recorded saying the things to which Detective Tiss deposes.
Accordingly, I treat that material, therefore, in the absence of any submission denying the existence of the material or that it records Domenic Perre’s voice, as being a reasonable basis upon which to consider whether or not there is a connection between the drug and firearms offences.
The conversations described by Detective Tiss are in two parts. First, there is a series of conversations from the latter part of 2016 into January 2017 which are capable, on their face, of referring to drug transactions, both relating to the monetary proceeds of the sale of cannabis, and to cannabis plants themselves.
After police searched and seized the cannabis and firearms on 6 January 2017 at the premises of the applicant’s brother, there was a conversation between the applicant and his nephew Antonio Perre. Part of that conversation was as follows:
Antonio Perre: … ‘They found guns, now they want to look at my guns.’
Domenic Perre: ‘What, they found the shotgun? They must have found the pump-action, didn’t we hide that?’
Antonio Perre: ‘It’s in the same place we fucken put it.’
Domenic Perre: ‘Behind the sheets?’
On its face that conversation is an admission by the applicant that he was involved in the hiding of the guns. That inference is strengthened by the inference that can be drawn from the course of conversations about trading in cannabis to which I earlier referred.
True it is that alternative constructions of that conversation might be put and those constructions might cause a jury to have a doubt about the conversation but that is not the question before me. The question before me is simply whether there is a reasonable basis to find that the allegation of the connection is made out.
I indicate that, even if I were to apply the test stated by Sulan J in Briggs to the conversations which are not disputed and to the facts of the discovery of cannabis, and the firearms at the Renmark premises in which these discussions took place, I would find that the inference could be drawn. I neglected to mention in my ex tempore remarks that the very proximity of the firearms to the cultivation satisfies me that it is reasonable to allege that their possession was for the purposes of the cultivation. It is notorious that participants in the illegal drug trade resort to firearms to protect their interests. The applicant has not suggested an alternative explanation for their possession. The poor state of the firearms does not detract from the allegation. Poor maintenance is common to legal and illegal uses of machinery. The guns could be accessed by removing some screws from the iron cladding. Even though inconvenient in the event of an unanticipated and sudden need to use the firearms, they were readily available for many other purposes connected to the cultivation.
The question, therefore, is whether there are special circumstances to grant bail even though Mr Perre is a prescribed applicant. The starting point for that inquiry is to appreciate that the rule created by s 10A(2)(e) of the Bail Act is to the effect that persons who are taken into custody in relation to serious firearm offences are so great a risk in the community that what would otherwise be the paramountcy of their right to liberty until convicted is abrogated.
The primary question, therefore, will be whether there are special circumstances in the particular applicant’s case that ameliorate substantially that risk. Other factors like protracted delay in obtaining a trial listing or any exceptional hardship in prison may arise later but are of no significance now. Two matters are advanced as special circumstances. The first is that the case against the applicant is extremely weak. I do not accept that submission. On the face of the material to which I have earlier referred, the case is a relatively strong one. Whether or not a jury will ultimately be persuaded by it is a different question.
The second matter is that the applicant would harbour a sense of grievance because his brother, sister-in-law and nephew were granted bail. There is little weight in that consideration because I am told that the prosecution did not allege against them that they were prescribed applicants.
I accept Ms Powell’s submission that there may, nonetheless, be some underlying sense of grievance. Even giving some weight to that it does not amount to a special circumstance. On the face of the conversation Mr Perre’s role in the cultivation was more substantial, particularly because of his involvement in dealing with the proceeds. Secondly, there is insufficient in the material to really be able to assess the question of parity because I know very little about the antecedents of the others.
I find that there are no special circumstances which rebut the presumption against bail in Mr Perre’s case. I dismiss the application for review of the refusal of bail by the Magistrate.
3