Re Amr
[2018] VSC 186
•17 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0072
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by OMAR AMR
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 and 13 April 2018 |
DATE OF JUDGMENT: | 17 April 2018 |
CASE MAY BE CITED AS: | Re Amr |
MEDIUM NEUTRAL CITATION: | [2018] VSC 186 |
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CRIMINAL LAW – Application for bail – Charges of trafficking and possession of drugs of dependence, assaulting a police officer, negligently dealing with the proceeds of crime, stating a false name and address when requested by a police officer, driving a motor vehicle whilst disqualified, and driving an unregistered motor vehicle – Applicant required to show cause – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Nibbs | Valos Black |
| For the Respondent | Ms D Guesdon | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 16 January 2018, Omar Amr (‘the applicant’) was arrested and charged by police with offences relating to the trafficking and possession of drugs of dependence, assaulting a police officer, negligently dealing with the proceeds of crime, stating a false name and address when requested by a police officer, driving a motor vehicle whilst disqualified, and driving an unregistered motor vehicle.
On 31 January 2018, the applicant was charged with one further offence of trafficking a drug of dependence in not less than a commercial quantity.
All the charges faced by the applicant were alleged to have occurred on 16 January 2018.
The applicant has been in custody since the day of his arrest. He initially applied for bail at the Dandenong Magistrates’ Court on 17 January 2018, and that application was refused. The applicant made a subsequent application on 14 February 2018 that was also refused.
Notably, on 14 February 2018, the applicant’s application for bail was refused in the context of the charge of trafficking in a commercial quantity of methylamphetamine laid on 31 January 2018.
The applicant is 27 years of age. He has a significant and relevant criminal history.
The applicant now applies to this court for a grant of bail.
Charges before the Court and procedural history
In summary, the charges that were before the Court at the time of the first hearing of this application were that the applicant:
(1) trafficked a drug of dependence, namely methylamphetamine;
(2) possessed a drug of dependence, namely methylamphetamine;
(3) possessed a drug of dependence, namely ecstasy;
(4) assaulted Acting Sergeant Warren Frost, an emergency worker on duty, knowing or being reckless as to whether Acting Sergeant Frost was an emergency worker;
(5) assaulted Leading Senior Constable Desmond Vis, an emergency worker on duty, knowing or being reckless as to whether Leading Senior Constable Vis was an emergency worker;
(6) dealt with the proceeds of crime, namely seven sets of linen and a knife block while being negligent as to whether or not the items were proceeds of crime;
(7) being a person reasonably believed to have committed an offence of trafficking a drug of dependence, or being a person able to assist in the investigation of an indictable offence, namely drug trafficking, stated a false name and address to a police officer;
(8) drove a motor vehicle whilst disqualified;
(9) drove an unregistered motor vehicle; and
(10) trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a commercial quantity applicable to that drug.
As the applicant faced a charge of trafficking in a commercial quantity of a drug of dependence, the application before me proceeded on the basis he was required to show there were exceptional circumstances that justified a grant of bail. However, I was informed at the first hearing that the charge of trafficking in a commercial quantity would likely be withdrawn, on the understanding the applicant would plead guilty to all other charges. I adjourned the hearing of this application to enable a decision to be made about those matters.
The applicant appeared before the Melbourne Magistrates’ Court on 12 April 2018 for a committal mention. On 13 April 2018, I was informed that, as a result of negotiations, the charge alleging trafficking in a commercial quantity of methylamphetamine would be withdrawn, and the parties had reached agreement about the charges before the lower court. However, I was also informed an unresolved issue remained as to the appropriate jurisdiction in which the plea hearing of the matter would be held.
On 16 April 2018, I was informed the charge of trafficking in a commercial quantity of methylamphetamine, and the charge of possessing methylamphetamine, had been withdrawn.
The applicant’s matter is now listed in the Melbourne Magistrates Court for a contested summary jurisdiction application on 2 May 2018. At that hearing, the Court will decide which venue will hear the applicant’s case. The best current assessment of the delay in the resolution of this case is that a final hearing is not likely to occur for as much as three months. It is not possible to provide an exact date or to identify the venue of hearing at this point.
The law that applies in this case
The withdrawal of the charge of trafficking in a commercial quantity impacted on the resolution of this application. Having been charged with trafficking a drug of dependence, namely methylamphetamine, in a quantity not less than the applicable commercial quantity, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981, bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail, pursuant to s 4(2)(aa)(i) of the Bail Act 1977 (‘the Act’).
As already observed, the Magistrate that refused the applicant’s second application for bail did so on the basis that he then faced a charge of trafficking in a commercial quantity of the drug.
As the charge alleging trafficking in a commercial quantity was withdrawn, the applicant no longer faces the exceptional circumstances test. As the charges facing the applicant now include a charge of trafficking a drug of dependence not involving a commercial quantity under s 71AC of the Drugs, Poisons and Controlled Substances Act, it is accepted by both parties the applicant is in a ‘show cause’ position, pursuant to s 4(4)(ca) of the Act.
In these circumstances ‘the court shall refuse bail unless the accused shows cause why his detention in custody is not justified’. Pursuant to s 4(1)(d) of the Act, the Court shall refuse bail if satisfied there is an unacceptable risk that the accused, if released on bail, would:
·fail to surrender himself into custody in answer to his bail;
·commit an offence whilst on bail;
·endanger the safety or welfare of members of the public; or
·interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
I also note the effect of the matters set out in s 4(3)(a)–(f) of the Act when assessing unacceptable risk factors.
The alleged offending
The prosecution case is that at approximately 2.45pm on 16 January 2018, Acting Sergeant Frost and Leading Senior Constable Vis observed the applicant driving a blue Holden Commodore in the opposite direction whilst they were patrolling on Heatherton Road, Noble Park.
A short time later, the police officers observed the applicant’s vehicle pull into the carpark of a Noble Park skate park. They parked their vehicle behind the applicant’s vehicle and approached it on foot. As they did, it is alleged the applicant alighted from his vehicle and immediately threw a punch at Leading Senior Constable Vis, though his fist did not connect with the police officer.
The prosecution case is that as the applicant alighted from the car a black satchel later found to contain methylamphetamine, fell out of the driver’s side door and onto the ground.
A violent struggle with the applicant ensued, during which Leading Senior Constable Vis and Acting Sergeant Frost activated duress alarms on their radios, seeking police backup assistance.
During the struggle, Acting Sergeant Frost suffered a small red piercing bite mark to his left arm, bruising and soreness on his body and hands, as a result of being kicked and punched by the applicant. Leading Senior Constable Vis suffered similar bruising and soreness across his body.
Following his arrest, the applicant was asked to state his name and address. It is alleged he stated that his name was ‘Ahmed Lodin’, of Endeavour Hills.
A search of the applicant’s vehicle located a Baccarat brand, nine-piece knife block set, valued at $999.99, five Sheridan brand king bed linen sets valued at $289.99 each, a Sheridan brand king bed quilt cover set valued at $529.95, and a Sheridan brand pillow case set valued at $83.95. The goods had a combined value of $3,054.84. They are alleged to be the proceeds of crime.
A search of the black satchel which fell from the applicant’s motor vehicle located seven zip-lock bags containing a total of 58.63 grams of methylamphetamine, and a single ecstasy table with a Superman ‘S’ logo embossed on it. It was due to the possession of this amount of methylamphetamine that the police laid the charge of trafficking in a commercial quantity on 31 January 2018.
A subsequent analysis of the applicant’s mobile telephone revealed numerous text messages sent between 4 September 2017 and 11 January 2018 referring, in code, to drugs he was alleged to have been selling at various prices.
During the course of his subsequent interview by police, the applicant provided some correct details about himself, but otherwise gave a no comment record of interview.
Grounds of application for bail
In his application dated 21 March 2018, the applicant states the following grounds in support of a grant of bail:
(a) The prosecution case with respect to the charge of trafficking in a drug of dependence that is not less than a commercial quantity, is not strong.[1]
[1]For the reasons discussed this ground is now redundant.
(b) The applicant has ties to the jurisdiction.
(c) The intensive support available on bail through Arrow Health.
(d) Strong family support.
(e) Willingness to comply with strict bail conditions.
(f) The applicant is not a flight risk.
(g) He is unlikely to interfere with witnesses or otherwise obstruct the course of justice.
The applicant’s contentions
From the materials filed with the application for bail, which are supported by an affidavit in support of the application for bail sworn by Sandra Gaunt and dated 21 March 2018, the following arguments are advanced in support of this application.
Delay
When the applicant faced the charge of trafficking in a commercial quantity he argued that, as a result of the delay of the analysis of methylamphetamine and ecstasy, an unacceptable amount of time would occur before a further application could be made for a grant of bail, or that the cases against the applicant are brought to final resolution. For the reasons discussed, that particular ground is no longer relevant to the application. However, the argument remains that, given the way the case against the applicant has unfolded in the Magistrate’s Court, there is likely to be a delay of up to three months before the case reaches final resolution.
Availability of intensive rehabilitation and support services
The applicant proposes to attend a residential facility for drug rehabilitation and treatment of his substance abuse issue, as well as his other behavioural issues. The proposed 30 day program is run by Arrow Health and, if completed, the applicant would attend an after-care program at the St Kilda clinic.
It is proposed that, under the residential rehabilitation program, the applicant would live at the Arrow Health 20-person residential facility in Woodend under 24 hour supervision by staff. Staff would be responsible for reporting any non-compliance with the rehabilitation program or the applicant’s conditions of bail to the Kyneton Police Station.
Mr Bruce Laidlaw, the Aftercare and Outpatient Program Coordinator at Arrow Health, provided a letter to the Court and gave oral evidence in relation to his assessment of the applicant and the Arrow Health program. According to Mr Laidlaw, the applicant has openly acknowledged his problems with drug use and expressed a desire for ongoing treatment of his problem. The proposed program would include individual counselling sessions, study groups, group therapy, recover-focused educational groups, rostered community work tasks, homework and assignments, twice-weekly drug screening urinalysis, physical exercise, cooking classes and journal-writing.
Further, the after-care program would involve daily attendance at support groups and regular attendance at 12 step meetings. The applicant would also be required to undergo urinalysis twice each week.
Family support and ties to the jurisdiction
The applicant submits he has ties to the jurisdiction and ongoing family support.
The availability of conditions of bail to ameliorate risk
It is argued the applicant is unlikely to interfere with witnesses or otherwise obstruct the course of justice. Additionally, it is argued, he is not a flight risk because of his ties to the jurisdiction. It is submitted he is also unlikely to commit further offences whilst on bail, as he will be under close supervision at the Arrow Health residential rehabilitation program. It is proposed that the applicant is willing to comply with strict bail conditions.
The prosecution’s contentions
The prosecution opposes the application for bail on the basis that the applicant has not shown cause as to why his further detention is no longer justified, and that there is an unacceptable risk that, if released on bail, he would commit further offences. It was not suggested that the applicant was a flight risk, or that he would be likely to interfere with witnesses, or obstruct the course of justice. The prosecution raised the following matters in support of its contention that the applicant should not be granted bail.
The applicant’s criminal record
The prosecution argues that the applicant has a significant record of breaching court orders and committing offences whilst on bail. It argues this history is extensive, and demonstrates a disdain for authority and a defiance of court orders. The applicant has a significant history of prior convictions for assaulting and resisting police, driving whilst disqualified, and previous drug offences.
Further, the current allegations against the applicant involve his commencement of drug trafficking only weeks after his most recent release from prison in relation to similar offending.
The applicant’s history of drug use and lack of employment
The applicant is currently unemployed, and it is argued that, as a result, he is likely to re-offend in order to support his ongoing drug habit.
The applicant’s previous attitude towards drug rehabilitation
The applicant has previously undergone drug rehabilitation under a drug treatment order made by the Dandenong Magistrates’ Court in March 2014. The prosecution points out that he breached this order by continuing to offend, which resulted in a conviction for breaching the order and his subsequent imprisonment. The conditions of that order included supervision and urinalysis for drug use, similar to the bail conditions proposed by the applicant in the current application.
It is further argued that the current allegations against the applicant include his trafficking drugs to people who are undergoing drug rehabilitation.
The prosecution also notes that the proposed residential rehabilitation program is only for 30 days. It is argued that this is only a temporary measure to mitigate the applicant’s risk of reoffending if released on bail.
The applicant’s psychological condition
The prosecution argues that, as the neuropsychological report of Dr Vowels was written in 2010, it is now of limited relevance to the present application. The report is outdated and its limited relevance is demonstrated by the fact that, at the time of the assessment on which the report is based, the applicant had ‘no history at all of the use of alcohol, cannabis or other substances’.
The ineffectiveness of family support
The prosecution argues that the alleged offending for which the applicant is charged occurred whilst he resided with his parents in their family home in Springvale South, thus indicating his family’s support provides no mitigation to the risk of reoffending.
Discussion
The applicant is 27 years of age. He has a significant and relevant criminal history. The prosecution argues that this history includes a number of convictions for breaching court orders and committing offences whilst on bail. There is no doubt this is the case. The applicant’s history, for a person of his age, is deplorable. To a large extent, it appears that his previous offending has been related to the abuse of drugs.
The offending alleged in this matter, and to which the applicant will plead guilty, is serious and drug related. The need for him to show cause why his detention is not further justified illustrates the seriousness of his situation. On this occasion the applicant trafficked a drug of dependence and attacked and fought with police, assaulting them. They were performing their duty as emergency workers at the time, and were entitled to expect to carry out their duty safely. Although the allegation of trafficking is alleged to have occurred on one day, relating primarily to the applicant’s possession of small parcels of methylamphetamine designed to be trafficked, the broader context in which the applicant’s offending should be assessed demonstrates the likelihood the current offending was not an isolated incident.
The overall nature of the applicant’s previous criminal history shows a predisposition towards the personal use of drugs; the trafficking of drugs; theft and possession of goods belonging to other people; driving offences; breaches of a wide variety of court orders; threats; reckless conduct; and general dishonesty.
I note that the criminal history of the applicant is not dated. Rather, it demonstrates an ongoing pattern of anti-social conduct from 2009 to these most recent events. His offending appears to have continued largely unabated. In the longer term, unless the cycle of criminality is broken, there is a risk that he will continue to offend, and present an ongoing and long term risk to the community.
Of particular concern is that the applicant’s history demonstrates an unwillingness to abide by court orders of various kinds. He has been given many chances in the past. The prosecution argues the combination of the applicant’s criminal history, his demonstrated disdain for court orders, and ongoing problems with containing his drug addiction, all lead to the inevitable conclusion that he is an unacceptable risk of further offending and raises safety concerns for the public.
The applicant, on the other hand, argues that the potential delay in the resolution of the case, in the context of the applicant’s willingness to submit to treatment of his drug addiction, and the support he has from his family, all lead to the conclusion that he has shown cause. He further argues that if he has shown cause, the prosecution has failed to establish he is an unacceptable risk.
It should be noted that in the face of a negotiated resolution of this matter, the delay likely to be experienced will be far less than if the matter had remained contested. In those circumstances, I regard the applicant’s argument that significant delay is a strong determining factor in this application is somewhat diluted.
Given the applicant’s poor background and past performance, the question must arise as to what has changed to make the applicant an acceptable risk for a grant of bail in this instance. In answer, the applicant has presented a structured plan for his immediate future. It is proposed he will reside for 30 days at Arrow Health in the inpatient program, following which extended support is available from Arrow Health. His family are willing to fund his participation in the program, apparently to cost about $12,000 per month. The evidence of Mr Laidlaw satisfied me the proposal is a credible one, offering the prospect of ongoing support for the applicant, should he choose to accept it. There is the possibility of extended periods on top of the 30 day inpatient program, to the extent of 60 and 90 days after–care. The cost of this to the applicant and his family is considerable. The applicant would do well to recognise that.
In relation to the time the applicant would be in a non-residential care arrangement, the applicant submits any risks attached to that period can be managed by imposing strong conditions to ensure such risks are not unacceptable.
It is submitted on behalf of the applicant that his attendance on the program provides an opportunity for rehabilitation, and that he now wants to make a change and take steps to not return to the cycle of drugs once released from custody. It was submitted the longer term protection of the community is best addressed by the applicant successfully addressing his drug abuse, and being equipped with skills to manage his future in a law-abiding manner.
The applicant submits the outcome of the criminal proceedings might be a community corrections order, especially as the applicant has already served three months on remand. The respondent disagrees and submits the applicant faces the prospect of a lengthy term of imprisonment, in circumstances where the amount of drugs trafficked is at the higher end of a trafficking simpliciter charge.
The outcome of the applicant’s plea hearing is not something for me to predict, nor is it my role. The penalty to be imposed on the applicant will be determined by a Magistrate or judge in due course. It is only for me to observe that the applicant has now served three months on remand and, if he does not obtain a grant of bail on these matters, by the time of his next hearing, he is likely to have been in custody for up to six months altogether.
I am satisfied that in all the circumstances the applicant has shown cause as required, and that the use of conditions can sufficiently reduce the unacceptable risk factors to justify the grant of bail.
The concern of the community must be that, in light of the applicant’s unabated criminal history to date, unless something is done to break the cycle of offending, the applicant will simply go on in the same way. I am of the opinion the proposed arrangement with Arrow Health, and other conditions to be imposed on the applicant, can reduce what otherwise may be unacceptable risks of further offending to an acceptable level. In the longer term, if the applicant chooses to apply himself to his long term rehabilitation, there can be benefits for community protection.
On 17 April 2018, I admitted the applicant to bail on his own undertaking and on the following special conditions. I note these conditions are strong, and specifically address aspects of the applicant’s offending in relation to drugs and driving a motor vehicle, being that:
1. He attend the Melbourne Magistrates’ Court on 2 May 2018 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.
2. He immediately attend the residential rehabilitation facility, Arrow Health at 8 Carlisle Street, Woodend in Victoria, and there undertake the inpatient program for a period of at least 30 days, and undertake any further period of treatment or aftercare program as directed by any officer of Arrow Health.
3. He comply with all lawful directions, including any requests for urine screens, of any officer of Arrow Health and attend all appointments as directed by Arrow Health for the duration of the bail period.
4. Following discharge from the Arrow Health inpatient facilities, he reside at 9/21 Spring Road, Springvale South in Victoria (‘the approved premises’) and not change that address without the leave of the Court.
5. He remain at the approved premises between the hours of 8:00pm and 7:00am each day for the duration of the bail period.
6. He present himself at the front door of the approved premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
7. He report Monday, Wednesday and Friday to the Officer in Charge of the Police station, or his or her nominee, at Kyneton while an inpatient at Arrow Health, and thereafter at Springvale, between the hours of 7:00am and 8:00pm.
8. He not contact, directly or indirectly, any witness for the prosecution, except any of the informants.
9. He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 without lawful authorisation under that Act.
10. He provide a sample of his breath for testing if required to do so by any member of Victoria Police.
11. He abstain from driving a motor vehicle for the duration of the bail period.
12. He not leave the State of Victoria.
13. He surrender any passport he may have to the informant within 24 hours.
14. He not attend any points of international departure.
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