Re Ahmet
[2019] VSC 82
•20 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0022
| IN THE MATTER of the Bail Act 1977 | |
| And | |
| IN THE MATTER of an application for bail by Tarik AHMET | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2019 |
DATE OF JUDGMENT: | 20 February 2019 |
CASE MAY BE CITED AS: | Re Ahmet |
MEDIUM NEUTRAL CITATION: | [2019] VSC 82 |
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CRIMINAL LAW – Application for bail – Charges of trafficking a drug of dependence, possessing a drug of dependence, dealing with property suspected to be the proceeds of crime, using a mobile phone while driving and committing an indictable offence whilst on bail – Applicant required to show exceptional circumstances – Delay – Availability of employment and CISP support services – Family support – Surety – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S. Tovey | Markotich Lawyers |
| For the Respondent | Mr A. Austin | Victoria Police |
HIS HONOUR:
Introduction
On 9 November 2018, Tarik Ahmet (‘the applicant’) was arrested and charged with trafficking a drug of dependence, possessing a drug of dependence, dealing with property suspected to be the proceeds of crime and using a mobile phone while driving (‘the first set of charges’). The applicant was released on bail by police in respect to these charges that same day.
On 18 December 2018, he was arrested and charged with trafficking a drug of dependence, two counts of possessing a drug of dependence, dealing with property suspected to be the proceeds of crime and committing an indictable offence whilst on bail (‘the second set of charges’). The applicant has been in custody since his arrest on this day.
On 22 January 2019, the applicant applied for bail in respect to the second charges at the Sunshine Magistrates’ Court. The Magistrate refused that application for bail and, upon application by the police, revoked the applicant’s bail in respect to the first set of charges.
On 29 January 2019, the applicant filed an application for bail in this Court in respect to both sets of charges.
The applicable legislation
On 9 November 2018, the applicant was charged, inter alia, with a Schedule 2 offence under the Bail Act 1977 (‘the Act’), namely trafficking a drug of dependence.[1]
[1]Bail Act 1977 (Vic) sch 2 item 24(b).
On 18 December 2018, while on bail for this Schedule 2 offence, the applicant was charged with a two further Schedule 2 offences, being an additional count of trafficking a drug of dependence and committing an indictable offence whilst on bail.[2]
[2]Ibid sch 2 item 30.
Pursuant to s 4AA(2)(c)(i) of the Act, the exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if the offence is alleged to have been committed while the accused was on bail for any Schedule 2 offence.
Section 4A(1A) of the Act provides that, where the exceptional circumstances test applies under s 4AA(2), the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the burden of satisfying the Court that exceptional circumstances exist.[3]
[3]Ibid s 4A(2).
Pursuant to s 4A(3) of the Act, in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’. In respect to surrounding circumstances, s 3AAA provides that the Court must take into account all the circumstances that are relevant to the matter, including but not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the ‘unacceptable risk test’.[4] Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[4]Bail Act 1977 (Vic) ss 4A(4), 4D(1)(b).
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to take the surrounding circumstances into account again, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
The alleged offending
The Informant Monteduro charges
At approximately 2:30pm on 9 November 2018, the applicant was intercepted by police in a Holden Commodore in Keilor Downs, allegedly using a mobile phone while driving.
Police searched the applicant and the vehicle, locating a zip-lock bag containing methylamphetamine, several gold rings and $795 cash on his person, as well as a zip-lock bag containing methylamphetamine in the boot of the vehicle. The total weight of the methylamphetamine found was approximately eight grams.
The applicant was arrested and taken to Keilor Downs police station, where he was charged with the first set of offences and granted bail. He gave a no comment interview.
The Informant Samie charges
At approximately 8:00am on 18 December 2018, police executed a search warrant at the applicant’s address at Stockwell Crescent in Keilor Downs.
It is alleged the applicant was in his bedroom at the time, where police located methylamphetamine, two mobile phones, a bottle of 1,4-Butanediol and $1,575 cash. Police also found two zip-lock bags containing methylamphetamine in a Holden Astra located at the premises and registered to the applicant’s girlfriend, as well as drug paraphernalia in the vehicle and the applicant’s bedroom, including a large number of zip-lock bags and a set of scales. The total amount of methylamphetamine located in both the house and vehicle was approximately 3.15 grams.
Preliminary analysis of the mobile phones located under the applicant’s bed revealed a number of text messages indicating he had been engaged in the trafficking of drugs of dependence.
At the time of this alleged offending, the applicant was on bail in respect to the first set of charges. He was arrested and taken to Fawkner Police Station, where he was charged with the second set of offences and gave a no comment interview.
The applicant
The applicant is 35 years old. He completed school to Year 10 before working in the fast-food industry and as a labourer. He then worked in storm water and sewer maintenance for eight years, until he was made redundant in 2014. Between January and October 2018, he was employed by a company undertaking National Broadband Network (NBN) installation.
The applicant has a criminal history involving convictions for unlawful assault and three counts of contravening a condition of bail in June 2017; unlicensed storing of ammunition in an insecure manner and handling/receiving/retaining stolen goods in December 2016; and recklessly causing injury in May 2006.
The applicant married Kate Ford in 2007 and they have two children, aged six and four. In 2015, Ms Ford moved out of the family home with the children and took out a family violence intervention order (FVIO) against the applicant. The FVIO named Ms Ford and the children as affected family members, and prevented the applicant from contacting them. It lasted 12 months and has not been renewed.
Pursuant to s 5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is a FVIO, or any other family violence safety notice or domestic violence orders in force against the applicant. The prosecutor has indicated there is not currently any such order or notice in force in respect to the applicant.
At the time of the offending, the applicant was living at Stockwell Crescent in Keilor Downs with his girlfriend.
The applicant’s submissions and evidence
The applicant contends that the following matters are established by the evidence and together demonstrate exceptional circumstances that justify the grant of bail.
Delay
The applicant submits there is a substantial risk his time in custody will exceed any eventual sentence imposed in respect to these matters.
Both sets of the applicant’s charges are listed for a summary case conferences at the Sunshine Magistrates’ Court on 29 March 2019.
There is a possibility that the matter may resolve, and that a sentence will be imposed on the applicant that day. However, if the matters remain contested, it was submitted they may be not resolved until the end of the year. It is difficult to make a clear assessment of the extent of delay, but in view of the charges and the evidence against the applicant, it may well be that the applicant will spend time in custody that exceeds the eventual sentence imposed if found guilty of the charges.
Suitable accommodation, family support and a surety
The applicant submits he has significant support from his parents. Should he be granted bail, it is proposed he would live with his parents at their home in Delahey. The applicant’s father, Mr Ahmet, provided a letter of support to the court and gave evidence before me. That evidence appeared open and honest, and I was impressed by him.
Mr Ahmet was prepared to undertake that, if the applicant were to be granted bail with the condition that he live at the home, he would be prepared to inform the police of any instances of non-compliance. I view this as a very serious undertaking, and understand Mr Ahmet gave it solemnly and in good faith.
Mr Ahmet was also prepared to provide a surety of $10,000. It is submitted that the applicant’s previous grants of bail have not involved a surety.
The availability of Court Integrated Services Program (CISP)
The applicant submits that a condition may be imposed that provides for the supervision and support of CISP. I was provided with a report dated 19 February 2019, in which CISP recommends the applicant for engagement and support services.
CISP proposes one month of post-release phone support through CROP, involving phone appointments and engagement. If I were to grant bail to the applicant in the current circumstances, I would not regard this level of support as sufficient. Rather, it should be a condition of bail that CISP have personal engagement with the applicant.
I note that after temporarily standing down the matter, the applicant’s solicitor confirmed with CISP that there was an appointment available for the applicant to attend CISP the next day, to set a more intensive bail support program.
The applicant also provided a letter from Mr Deniz Ozbilgin, a psychologist at the Everton Mission Based Unit operating out of Ravenhall Correctional Centre. Mr Ozbilgin confirmed the applicant was deemed eligible for accommodation within that unit, which is a 25-bed therapeutic treatment community for offenders who have not previously served a lengthy custodial sentence. To maintain voluntary placement in the unit, participants must demonstrate continued positive behaviour, respect for peers, and motivation to engage with custodial case management and therapeutic programs.
Mr Ozbilgin confirmed the applicant has complied with the behavioural expectations of the unit and completed a six-hour psychoeducational program specific to methylamphetamine use. It is submitted on behalf of the applicant that his voluntary attendance in this program is an indicator of his attitude and desire to reform.
It is submitted the applicant has not otherwise previously been involved in any form of treatment or formal support.
Employment
The applicant submits he will have regular, stable employment available to him should he be granted bail. This is supported by a letter from Mr Frank Zelenko, his previous employer involved in NBN installation. Although the applicant was let go in October 2018 due to the company’s lack of contract work, Mr Zelenko states a position is now available for the applicant, should he be granted bail.
Criminal history
Although he has a criminal history, the applicant submits it is his first time in custody and he has no previous convictions for drug related offences.
The respondent’s submissions
The respondent opposes the application on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail. The respondent further submits there is an unacceptable risk that the applicant would commit an offence if released on bail and endanger the safety or welfare of members of the community.
In support of these contentions, the respondent relies on the following:
·the applicant has shown disregard for bail conditions by committing further offences whilst on bail;
·the applicant has prior convictions for breaching conditions of bail, which also involved family violence offending;
·investigators believe the applicant will continue to possess methylamphetamine whilst on bail; and
·there is no evidence the applicant has sought any treatment for any issues that may have caused the offending before the Court, or the historical offending.
Conclusions
Exceptional circumstances
It is widely observed that the hurdle facing an applicant in establishing exceptional circumstances is ‘a high one’,[5] and that to be exceptional, the circumstances relied upon ‘must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.[6] However, it is not an impossible standard to reach. As Hollingworth J noted in Hang Cao v DPP:
It has often been said that there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant, before those circumstances can be characterised as exceptional. But, although the hurdle is a high one, it ‘should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.’ [7]
[5]See e.g. Armstrong v R [2013] VSC 111 [31], referencing Re Whiteside [1999] VSC 413.
[6]Re Sam [2017] VSC 91 [22].
[7][2015] VSC 198 [7], citing Whiteside [1999] VSC 413 [10].
It is also widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors.[8] In the often cited unreported judgment, Re Maloney, Vincent J summarised:
A number of decisions … make it clear that [exceptional] circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[9]
[8]See e.g. Armstrong v R [2013] VSC 111 [31]; R v Chung [2015] VSC 487 [15]–[31].
[9]Re Moloney, unreported, Supreme Court of Victoria, Vincent J, 31 October 1990.
On the submissions and evidence before me and taking into account the surrounding circumstances, I am satisfied that the applicant has shown exceptional circumstances exist that justify the grant of bail, through a combination of factors.
My conclusion is based, in particular, on the factors of likely delay, the applicant’s personal circumstances and lack of prior convictions for drug related offending, his apparent interest in engaging in a rehabilitative programs, and the availability of CISP supervision and support. Further, I note a surety is available, that his father promises to report any breaches of bail conditions, and that he has guaranteed employment.
Finally, I note it was submitted that there are arguable aspects of the prosecution case. While it cannot be concluded that the prosecution case is necessarily weak, nor is it certain that the applicant will be convicted of these offences.
Unacceptable risk and conditions
The preliminary police brief suggests the applicant’s recent offending is directly related to his escalating drug habit and the break-down of his marriage, and that he poses an unacceptable risk of committing further offences and endangering the safety and welfare of members of the community.
The applicant submits prior to becoming unemployed, he did not drink alcohol or use illicit drugs. It is submitted that he began to struggle emotionally after losing his job, which eventually led to the breakdown of his marriage. During this period he was introduced to methylamphetamine by an acquaintance, and he used the drug occasionally in a social setting. He states he began to become reliant on the drug to dull the stress and anxiety surrounding his employment and personal situation.
The applicant submits that the availability of employment and support services, and the imposition of stringent bail conditions, would bring any risk to an acceptable level. I was also impressed by the applicant’s father’s evidence. Both he, and the prospective employer, are clearly invested in the applicant’s welfare.
Having weighed the evidence and the matters put on behalf of the applicant, I find stringent conditions to a grant of bail can ameliorate what otherwise might be unacceptable risk factors. In reaching these conclusions, I have taken into account the surrounding circumstances as required by the Act.
Accordingly, I will grant bail to the applicant with one surety in the amount of $10,000 and on the following conditions:
(a)he attend the Sunshine Magistrates’ Court on 29 March 2019 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody;
(b)he reside at a specified address in Delahey in Victoria, and not change that address without the leave of the Court;
(c)he remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of bail;
(d)he present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e)he report Monday, Wednesday and Friday to the Keilor Downs Police Station between the hours of 6:00am and 10:00pm;
(f)he abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act;
(g)he submit to drug testing if required to do so by any member of Victoria Police;
(h)he report to Court Integrated Services Program (CISP) at Sunshine at 10.00am on 21 February 2019, and thereafter comply with all lawful directions and attend all appointments as directed by any officer of CISP;
(i)he undertake a urine drug screen once every two weeks and provide the results to the informant within 24 hours of them becoming available;
(j)he not contact, directly or indirectly, any witness for the prosecution, except the informant;
(k)he not leave the State of Victoria;
(l)he surrender any passport he may have to the informant within 24 hours; and
(m)he not attend any points of international departure.
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