Rajic v R

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0003

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by Frank RAJIC

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2016
DATE OF RULING:	2 February 2016
CASE MAY BE CITED AS:	Rajic v R
MEDIUM NEUTRAL CITATION:	[2016] VSC 27 First Revision, 1 August 2016

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CRIMINAL LAW – Application for bail – Trafficking cannabis in a commercial quantity – Aggravated burglary – Using a firearm whilst a prohibited person – Reckless conduct endangering life – Cultivating cannabis – Theft – Dealing with property suspected to be the proceeds of crime – Exceptional circumstances – Prior convictions – Prospects of rehabilitation – Place for applicant in residential rehabilitation facility – Prospect for applicant to begin outstanding Community Corrects Order - Unacceptable risk – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Tovey	Markotich Lawyers
For the Respondent	Ms E. Ruddle	Office of Public Prosecutions

HIS HONOUR:

The applicant is charged with aggravated burglary involving the use of a firearm, using a firearm whilst a prohibited person, reckless conduct endangering life, cultivating cannabis, trafficking a commercial quantity of cannabis and alternatives to that charge, theft, dealing with property suspected to be the proceeds of crime and possessing an imitation firearm whilst a prohibited person.
The short facts that surround these charges are as follows. On 2 November 2015 the applicant and his co-accused Ahmed El-Sayegh are alleged to have attended a house at 103 Denton Avenue, St Albans. A hydroponic cannabis crop was being cultivated there. Alexander Diep lived at that address and, it appears, had been maintaining a well-advanced hydroponic crop of marijuana for about three months.
At about 4.30 am, El-Sayegh and the applicant are alleged to have approached the front door of the house and banged on the door, demanding entry. Diep is said to have yelled to the two men to go away. The metal security door was ripped open and an attempt was made unsuccessfully to break down the reinforced wooden front door. The two men managed to smash a hole in the front door and it is alleged that one of the men fired a shot through the front door from a .44 calibre handgun. This penetrated the front door, ricocheted off the tiles and penetrated the side of a washing basket. The two men are alleged to have threatened Diep that, if he did not let them into the house, they would shoot him. Diep allowed them entry and he says that he saw both men with a handgun.
Both men then set about harvesting the cannabis plants. The harvested portions were removed from the hydroponic room and placed in a pile adjacent to the side door. Police, presumably alerted by the commotion that occurred while the men were effecting entry, arrived shortly thereafter, making a loud, verbal identification. El-Sayegh was located at the address. The applicant, in possession of the revolver, climbed into the roof space of the house. He is alleged to have concealed the revolver under insulation bats. He then made a hole in the roof tiles and climbed onto the roof. He escaped from the building but was arrested nearby a short time later. He gave a no comment record of interview to police.
A search of the relevant house turned up

(a) an imitation Colt firearm located within a laundry basket near the front entrance of the house;

(b) the .44 calibre revolver that I have referred to earlier, which was found in the roof space beneath an insulation bat;

(c) a fired .44 calibre bullet in the laundry basket near the front door;

(d) an extensive hydroponic system feeding numerous cannabis plants;

(e) harvested cannabis near the side door.

Damage to the building consistent with the alleged events that I have set out was also observed.

A search of a vehicle alleged to be used by the two accused men resulted in the following being located:

(a) the applicant's white Samsung mobile phone;

(b) El-Sayegh's black mobile phone;

(c) a thermal imaging camera said to be used to identify crop houses by the heat generated therein; and

(d) a stolen number plate.

Both men tested positive for a trace of a substance consistent with gunshot residue. There is nothing in this evidence that indicates which of the co-accused actually fired the revolver.
The cannabis said to be located at the relevant house is said to weigh 69.27 kilograms, which is a commercial quantity under the Drugs, Poisons and Controlled Substances Act1981. The prosecution case of trafficking is predicated upon the applicant and his co-accused assuming possession of this marijuana; the cultivation charge is laid on the basis of their harvesting activities.
On 8 October 2015 in the County Court the applicant successfully appealed a sentence imposed in the Magistrates' Court for possessing cannabis and dealing with the proceeds of crime. He was resentenced to time served (22 days) and placed on a Community Corrections Order (‘CCO’) for 12 months with various conditions, including drug treatment and rehabilitation conditions, and the requirement that he perform 150 hours' unpaid community work. The applicant is thus a prohibited person within the meaning of s 3(1) of the Firearms Act 1996 (Vic). The Colt imitation semiautomatic pistol is an imitation firearm within the meaning of the Control of Weapons Act 1990 (Vic). I shall return to the circumstances of this County Court appeal later in these reasons.
An applicant charged with trafficking a commercial quantity of cannabis must demonstrate exceptional circumstances that justify a grant of bail.[1] Mr Tovey, who appears for the applicant accepts that this is the burden confronting the applicant on this application. The prosecution, represented by Ms Ruddle, contended that the applicant has failed to demonstrate such circumstances and further, if released on bail, is an unacceptable risk of committing further offences or of placing the community at risk of serious harm.
[1]Bail Act 1977 (Vic), s 4(2).
The Applicant
The applicant is now 42 years old. He is married with three children, two of whom are of school age. He has worked primarily as a house painter in the past. He has a long criminal history which I shall selectively summarise.

(i) 1993: cultivate narcotic plant, possession and use of cannabis. Sentence: adjourned bond.

(ii) 2006/7: possession and use of amphetamines, solicit prostitution. Sentence on appeal: fined $1,000.

(iii) 2009: burglary, going equipped to steal.

Sentence: community based order for six months with core conditions relating to drug and alcohol addiction.

(iv)2009/2011: traffic drug of dependence (x2).

Sentence after appeal to the Court of Appeal in 2011 (the original hearing being in 2009): three years' imprisonment with a minimum of one year, nine months.

(v) 2010: burglary and theft.

Sentence: six months concurrent with the sentence being served.

(vi)2013: burglary and theft.

Seven months' imprisonment, four months' suspended.

(vii) 2014: possession of methylamphetamine, dishonestly undertake in the retention of stolen goods, going equipped to steal.

Sentence: aggregate four months' imprisonment wholly suspended.

(viii) In 2015, as best as I can comprehend the LEAP report, on 1 June at Sunshine Magistrates' Court the applicant was dealt with inter alia for breaching the 2014 suspended sentence which was reinstated, possession of cannabis (two counts), possession of housebreaking implements, unlicensed driving, and dealing with property suspected to be the proceeds of crime.

He was sentenced to two months’ aggregate imprisonment to be served concurrently with the reinstated suspended sentence. He appealed to the County Court on 8 October 2015, which allowed the appeal. It is unnecessary to set out the precise sentencing orders on that day. For present purposes it is sufficient to note that the applicant was convicted and sentenced to time served (22 days) and placed on a 12-month CCO with drug assessment and treatment conditions, together with the requirement that he perform 150 hours community work.

The prosecution have tendered an outline of submissions put on the applicant's behalf in this County Court appeal. It is unnecessary to recite them all, but I note that a combination of matters were relied upon to demonstrate exceptional circumstances that were said to make it unjust to reimpose the previously wholly suspended sentence. Some of these factors were that in December 2014 the applicant had completed a 21-day residential rehabilitation program at a regional facility, that he had gained insight into his drug using behaviours and that he had achieved some stability following discharge, although it was conceded on his behalf that he had relapsed in May 2015.
It was put on his behalf that relapses more often than not formed part of the recovery process. It was submitted that the time spent in custody provided motivation for change, and there was material upon which her Honour could conclude that there was a significant shift in attitude towards drugs. Counsel for the applicant on that occasion frankly accepted that his client had relapsed and was experiencing withdrawal and cravings at the time of the plea. Her Honour was clearly impressed by the matters put on the applicant's behalf and as I have said, found exceptional circumstances, declined to activate the breach suspended sentence, and sentenced the applicant to the CCO to which I have earlier referred.
The offending behaviour that is the subject of this application before me took place three weeks after the applicant was sentenced in the County Court. It will be recalled that the applicant was convicted in 2009 of two counts of trafficking a drug of dependence. On appeal to the Court of Appeal in 2011 his sentence was reduced to three years' imprisonment with a minimum of one year, nine months. The prosecution in the present application have directed me to the reasons of the Court of Appeal in the matter of Rajic v The Queen; Jack v The Queen [2011] VSCA 51. It is apparent from those reasons that the applicant was sentenced for trafficking methylamphetamine, 70 grams, and cannabis, 203 grams. The sentencing judge referred to the applicant’s apparent rehabilitation in respect of his own drug problem.
The substance of this application is:
·The applicant is a methylamphetamine addict who, if granted bail, will be admitted to inpatient treatment at the DayHab Addiction Treatment Facility in Glen Waverley; this will enable him to use his pre-trial time usefully in rehabilitation.
·The accused has been in custody now for nearly three months. Should his matter proceed to trial and he remain in custody his trial will not be heard until March 2017;
·The applicant, if released on bail, will have the opportunity to commence his CCO;
·Various aspects of the Crown case are said to be weak; and
·The applicant has a substantial surety available, and can claim the support of his family and an experienced drug and alcohol counsellor.
The DayHab Program
The DayHab program is an inpatient addiction treatment program involving a 90-day intensive therapy regime. It involves daily group therapy, one-on-one counselling, lectures and DVDs, and a 12-step program similar to the Alcoholics Anonymous, Gamblers Anonymous and Narcotics Anonymous programs.
Mr Jack Nagle, the National Intake and Assessment Manager of DayHab, gave evidence on this application before me. As I indicated in discussion with counsel, I regarded him as an impressive witness. I am told there is a place in this program for Mr Rajic if this application is successful. Enrolment in the program is privately funded and requires an applicant to contract with DayHab as to conduct and attendance. The facility in Glen Waverley and its accommodation is supervised with monitoring by CCTV in all residential units. Should the applicant breach a DayHab protocol or condition, he would be discharged from the program and the informant notified immediately. Breath and urine samples are random and ongoing. DayHab can facilitate daily reporting conditions as a condition of bail. The CCTV is not monitored around the clock and staff have no power to physically prevent clients from leaving. The reality is that if the one supervising staff member is asleep, which is within his job remit, he or she will not detect an absconding client until the next morning.
I was impressed also by the evidence of Ms Abadee, who is a drug treatment clinician, and who is available to support the applicant in the event that he is granted bail after receiving treatment in the inpatient rehabilitation facility.
I accept that if the applicant is released on bail to enter the DayHab program, there is a chance that he will avail himself of this opportunity and work towards rehabilitating himself. Given his prior criminal history, however, and his failure to comply with other court imposed orders, I am unable to be confident that he would accept this opportunity.
Delay - strength of Crown case
I accept that should the matters go to trial, the applicant will have spent in the range of 17 months in custody, from November 2015 to about March 2017. In my view this sort of delay, while normal, is unacceptably long, and in some circumstances would be sufficient alone to constitute exceptional circumstances.
In this case, however, I consider the delay is likely to be less than 17 months and perhaps significantly so. The applicant was found near the crime scene in relatively close company with his co-accused. By implication he must have escaped via the ceiling and roof space where the recently used .44 calibre handgun was found. I think it is likely that the matter will resolve into a plea and be heard before March 2017.
Insofar as Mr Tovey endeavoured to make something of the proposition that the applicant could not be demonstrated to have fired the weapon, I doubt that this matters much. In my view, there is a strong case that both men participated in a joint criminal enterprise, part of the relevant agreement being that the loaded handgun be used if necessary. If that is correct then it matters little who actually pulled the trigger.
Whilst the trafficking of a commercial quantity of cannabis is, from a bail perspective, the most serious charge, the aggravated burglary charge involving use of the firearm is, in my view, objectively the more serious charge. The community is increasingly alarmed at the nature and extent of offending behaviour by people who are affected by methylamphetamine or ice.
In my view, the community would rightly be alarmed at the prospect of a methylamphetamine addict being part of a criminal combination which sets out to locate and steal large quantities of illegally grown cannabis while resorting to the use of a handgun in a residential area.
Conclusions
I accept that in appropriate circumstances it is desirable that applicants be given the opportunity to commence to affect rehabilitation whilst on bail. Mr Tovey, in his highly competent submissions, directed me to three cases that are authority for that proposition; Tran[2], Haddara[3] and Robinson[4].
[2]Mae Loc Tran [2008] VSC 191.
[3]Bail application by Fadi Haddara [2014] VSC 284.
[4]Robinson v The Queen [2015] VSCA 161.
I am afraid that I am unable to grant the applicant that opportunity. I have reached this conclusion for the following reasons:
It is well established that exceptional circumstances can be demonstrated by one factor, or a combination of factors. What is demonstrated, however, must be exceptional. It is insufficient for an applicant to demonstrate that he or she is deserving of sympathy, or that a persuasive case has been mounted for bail. The circumstances must be genuinely unusual or out of the ordinary before the test is satisfied.
In this case there is the combination of at least some delay, the prospect of a bed as an inpatient at a rehabilitation facility, substantial support available in the community for the applicant, together with a surety being proposed.
These factors are not sufficient to persuade me in combination that circumstances in this application are exceptional.
As I have indicated, I do not think this is a weak Crown case on what is, in my view, the most serious charge. It is also my view that given the nature of the charges, the applicant's antecedents, and the likely delay, there is no real prospect that any time that he spends on remand will be dead time. This latter consideration is really no more than an absence of a factor that can often be highly persuasive in this sort of application.
In all the circumstances I am unable to conclude that the applicant has demonstrated exceptional circumstances. Whether the question of unacceptable risk is part of the exceptional circumstances question or a separate question is unsettled at the moment. Whatever the position on this issue, I consider the prosecution carries the burden of proving that an unacceptable risk exists. In this case I consider they have discharged that burden. The applicant is a persistent offender whose offending seems to have escalated in seriousness in recent times.
An aggravated burglary where a shot is fired through a closed door to an occupied residential space is on any view serious offending. That this offending has occurred only weeks after the applicant was released on a CCO is powerful evidence of the applicant's indifference to court orders. Whilst I accept the sound intentions and probity of both Mr Nagle and Ms Abadee, the fact is that I cannot conceive of any conditions that would mitigate the risk presented by the applicant to an acceptable level. As Mr Nagle put it, ‘Amongst addicts, relapse is very common’.
For these reasons this application is refused.

[2016] VSC 27

2 February 2016