Re application for bail by Bolvan
[2021] VSC 664
•14 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0258
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by RENATA BOLVAN | Applicant |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2021 |
DATE OF ORDERS: | 12 October 2021 |
DATE OF REASONS: | 14 October 2021 |
CASE MAY BE CITED AS: | Re application for bail by Bolvan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 664 |
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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 1 offences – Trafficking in a drug of dependence in not less than a commercial quantity – Exceptional circumstances – Whether unacceptable risk – Risk addressed by strict conditions – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Brown | Nelson Brown Legal |
| For the Respondent | Mr M Roper | Office of Public Prosecutions |
HIS HONOUR:
Introduction
At the conclusion of the hearing I granted the applicant bail subject to conditions. I gave very brief reasons for making the order and said that I would provide detailed reasons in due course. What follows are my reasons for granting bail.
The applicant is 50 years old and has no criminal history. She has been on remand since 8 September 2021, having been arrested on that day and charged with the following 27 offences:
(a) trafficking in a drug of dependence in not less than a commercial quantity;[1]
[1]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(b) trafficking in a drug of dependence (six counts);[2]
[2]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(c) possessing a drug of dependence (nine counts);[3]
[3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(d) possessing a traffickable quantity of firearms;[4]
[4]Contrary to s 7C of the Firearms Act 1996 (Vic).
(e) possessing an unregistered general category handgun (three counts);[5]
[5]Contrary to s 7B of the Firearms Act 1996 (Vic).
(f) possessing ammunition without a licence;[6]
[6]Contrary to s 124 of the Firearms Act 1996 (Vic).
(g) possessing a prohibited weapon (four counts);[7]
(h) knowingly dealing in proceeds of crime;[8] and
(i) handling stolen goods.[9]
[7]Contrary to s 5AA of the Control of Weapons Act 1990 (Vic).
[8]Contrary to s 194 of the Crimes Act 1958 (Vic).
[9]Contrary to s 88 of the Crimes Act 1958 (Vic).
The applicant was refused bail in the Melbourne Magistrates’ Court on 22 September 2021 on the basis that, notwithstanding she had established exceptional circumstances, she was considered an unacceptable risk of committing an offence, endangering the safety or welfare of any person, and interfering with a witness or otherwise obstructing the course of justice.
There are two co-accused in the matter, Rita Porreca and Rino Anfuso. They were both arrested with the applicant and face identical charges to her. Ms Porreca was refused bail in the Magistrates’ Court on 9 September 2021,[10] and Mr Anfuso has not made an application for bail.
[10]Affidavit in Response, exhibit JWV-2.
By application filed on 28 September 2021, the applicant seeks a grant of bail in this Court. The matter is next listed for committal mention in the Melbourne Magistrates’ Court on 2 December 2021.
The alleged offending
In July 2021, police commenced an investigation into firearm and drug trafficking activity linked to an address in Albion, Victoria (‘the premises’). They identified the applicant and co-accused as persons associated with the premises.
At 6.34 am on 8 September 2021, police from the critical incident response team attended the premises and conducted a ‘cordon and call’ requiring all occupants to exit the premises. The applicant emerged and shortly after police observed a male, believed to be Mr Anfuso, throw a bag or satchel over a fence and into a neighbouring yard. He too then exited the residence, following which police attended inside and escorted Ms Porreca out.
A number of search warrants were executed at the premises, during which police located and seized various items, including:
(a) assorted drugs, including methylamphetamine in a commercially traffickable quantity; as well as amphetamine, heroin, cannabis, GHB, and buprenorphine in traffickable quantities; and viagra, alprazolam and tramadol in possessable quantities. The exact quantum of each of the drugs is not stated;
(b) three firearms, including a semi-automatic handgun with a loaded magazine, a semi-automatic rifle with a loaded magazine, and an antique firearm;
(c) assorted weapons, including a double-edged knife, baton-chucks, two samurai swords, two slingshots, and a crossbow;
(d) assorted ammunition;
(e) cash in an unspecified amount; and
(f) other indicia of trafficking.
The applicant and co-accused were arrested and taken to Sunshine Police Station.
During a record of interview, the applicant stated that she and the co-accused rented the premises together and admitted that she was trafficking drugs from the premises but in relatively small amounts. She also admitted knowledge of the crossbow and provided police with access to her mobile phone, which contained a photograph of Mr Anfuso holding a silver handgun resembling one of the firearms seized from the property.
The applicable legislation
The applicant is charged with trafficking in a drug of dependence in not less than a commercial quantity, which is a schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[11] Bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[12] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including those in s 3AAA(1) of the Act.[13]
[11]Bail Act 1977 (Vic) (‘Bail Act’) sch 1, item 6(b).
[12]Bail Act ss 4AA(1), 4A(1A) and 4A(2).
[13]Bail Act s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must nevertheless be refused if the respondent satisfies the Court that there is a risk of a kind set out in s 4E(1)(a) of the Act and that such a risk is unacceptable.[14] In considering this, the Court must take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[15]
[14]Bail Act ss 4D(1)(a) and 4E.
[15]Bail Act s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[16]
[16]Bail Act s 1B(2).
The applicant’s personal circumstances
The applicant is 50 years old. She moved to Melbourne from Czechoslovakia with her family when she was 8 years old. After graduating from high school, she was employed as a nanny and later in retail, however, has been unemployed for the last ten years. The applicant has a longstanding history of drug use, including a daily cannabis use for the last 30 years and methylamphetamine use every other day for the last five years. She describes her cannabis use as helpful in alleviating symptoms of anxiety. She has been estranged from her family since her methylamphetamine use commenced and wishes to repair that relationship. The applicant reported having being diagnosed with bipolar disorder and depression, however, does not receive pharmacological treatment for those conditions and considers her cannabis use as the best panacea for her overall mental health.
The applicant’s contentions
The applicant relied on the following matters, in combination, in support of the application for bail:
Nature and seriousness of the offending
The applicant conceded that the trafficking and weapons charges are serious, but submitted that these are less serious examples of the offences by reference to the quantities of substances seized and the lack of evidence of financial gain or of any long-term or sophisticated operation.
Strength of the prosecution case
The applicant conceded the prosecution case is ‘not weak’ in respect of the possession and less serious trafficking charges, but submitted that the case for the commercial trafficking and firearms charges is ‘far less strong' and will be contested. Triable issues arise out of the undetermined quantity of substances and establishing an intention to traffick in a commercial quantity, noting in particular that approximately half of the methylamphetamine seized during the execution of the search warrant (being the substance the subject of the commercial trafficking charge) was located in the satchel thrown over the fence by co-accused Mr Anfuso. Further, during her record of interview the applicant stated that her trafficking activity was limited to one to two points of methylamphetamine per day. She denied knowledge or possession of the firearms seized, noting that none were located in the master bedroom which she was occupying, and that she is not otherwise forensically linked to them.
Criminal history, outstanding matters and bail compliance
The applicant has no criminal history and is not subject to charges in any other matter. She has no adverse bail history, having never been on bail. The current period on remand represents her first time in custody.
Stable accommodation
The applicant proposed that she reside temporarily with a friend, Ms Mary Gasparic, at an address in Clayton until she can find her own independent accommodation. Ms Gasparic has a history of drug-related offending, however, noted that her criminal history is dated, with the most recent offence being in 2013 and the most recent drug-related entry being in 2006. Ms Gasparic has now been abstinent from drugs for an extensive period of time and is focused on full-time employment and looking after her two children. It was submitted that Ms Gasparic will provide a positive influence for the applicant as someone who has been able to come back from drug addiction, and will be able to support and mentor the applicant in this context.
Availability of bail support services
The applicant proposed that she receive support in the community through the Court Integrated Services Program (‘CISP’). She was previously assessed by CISP via phone on 9 September 2021, and due to the low level of needs identified at that time was recommended for community referral rather than case management.
The applicant was reassessed by CISP on 5 October 2021 and deemed suitable for a brief intervention case management to address identified drug and mental health issues. CISP will provide one month of case management to the applicant to assist with referral to Australian Community Support Organisation for assessment and drug treatment services. While the applicant did not identify her methylamphetamine use as an issue during her initial assessment with CISP, upon reassessment she indicated that being on remand had shown her that abstinence could be achieved. She would like to continue this in the community and is willing to receive treatment. The applicant has indicated a capacity to engage with her general practitioner to obtain a mental health care plan and treatment. An initial case management appointment has been scheduled for 14 October 2021.
Delay and likely sentence
The applicant has been in custody since her arrest, and the matter is next listed for a committal mention on 2 December 2021. If the more serious charges are pursued by the prosecution, the matter will proceed to a committal hearing which is unlikely to occur until 2022. Based on the most recent estimates provided by the County Court, which were published in July 2021, a matter committed for trial in 2022 would likely face a delay of 18 to 22 months. However, that estimate may not take into account any further fallout from the current and extended lockdown in Melbourne. It is anticipated that the applicant will be subject to a delay in the order of at least two and a half to three years awaiting trial.
If convicted of all charges, the applicant conceded that she is likely to face a term of imprisonment with a non-parole period. If convicted only of the less serious charges to which the applicant made admissions, it was submitted that a community correction order would be within range, in which case any time spent on remand would exceed any likely sentence.
COVID-19 and onerous conditions in custody
The applicant submitted that she is vulnerable as this is her first time in custody, which is further exacerbated by the onerous restrictions related to COVID-19 and the recent outbreak within the prison system.
Unacceptable risk
Strict conditions of bail were proposed by the applicant to moderate any risk that her release may pose, including conditions that she reside with Ms Gasparic; adhere to a curfew; daily reporting; not to use drugs and submit to testing; not to leave the State or country; surrender her passport; not to contact the co-accused or witnesses; possess only one mobile device and provide police with the details of that device; and comply with CISP directions.
The applicant submitted that her preparedness to address her substance use ameliorated the risk of committing a further offence on bail given that her offending and criminal associations stemmed from her substance use.
The respondent’s contentions
The respondent opposed the application on the basis that the applicant posed an unacceptable risk of endangering the safety or welfare of another and of committing a further offence whilst on bail.
Strength of prosecution case
Based on a report of the informant, who I note also gave some limited oral evidence on the application, the respondent asserted that the prosecution case is strong by reference to the applicant’s admissions to selling drugs of dependence, including her saying ‘there’s no denying’ and ‘no one’s running it’. Further, when questioned regarding any payments and what quantities were dealt, she responded ‘whoever makes the deal’ and ‘points, no one buys big no one’s got money’. Further, and contrary to the applicant’s denial of knowledge of the firearms, the respondent referred to a photograph found on her mobile phone depicting Mr Anfuso with a handgun.
Stable accommodation
The respondent submitted the proposed accommodation with Ms Gasparic is unsuitable due to her prior convictions for drug trafficking and possessing ammunition. While it was acknowledged that the charges are dated, it was submitted that they are a relevant consideration in the context of the charges the applicant is facing.
Unacceptable risk
Endangering the safety or welfare of any person
Police believe the offending is linked to organised crime, posing a risk of further offending and endangering the safety of the community. This is supported, in part, through multiple loaded and unregistered firearms, along with corresponding ammunition, seized from the premises.
Committing an offence
The respondent submitted that the applicant will likely continue to use and sell in drugs and firearms if released into the community.
Analysis and conclusions
The charge of trafficking in not less than a commercial quantity is a schedule 1 offence and for that reason bail must be refused unless the applicant establishes exceptional circumstances. In Re Sam,[17] Beach JA said:
The Bail Act does not define what are exceptional circumstances. It is trite that, in order 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, notwithstanding the very serious nature of the charge against her. Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[18]
[17][2017] VSC 91.
[18]Re Sam [2017] VSC 91, [22] (citations omitted); See also, Re CT [2018] VSC 559.
As noted above, the applicant has admitted to trafficking drugs but said that she only did so in relatively small amounts. She denied any knowledge of firearms being in the premises but this is undercut by the fact that she had on her phone, a photograph of one of the other occupants of the premises holding a pistol. The prosecution allege that the photograph depicts one of the firearms found at the house. The prosecution also point to the fact that some $223,000 in cash was found in the premises.
The applicant has indicated an intention to plead guilty to trafficking simpliciter but plead not guilty to possession of not less than a commercial quantity and to the firearms offences. In his oral evidence, the informant said that the substances that were seized from the premises had not been analysed but they included what is believed to methylamphetamine with an estimated weight of between 100 and 200 grams. Of that, approximately 90 grams were found in the satchel deposited over the fence by one of the co-accused and the rest was found in the house.
I note that a commercial quantity of methylamphetamine is 250 grams when found in a mixture and 50 grams pure. Given that the substance has not been analysed and the current estimate of weight is obviously a fairly rough one, it is not clear whether or not there was a commercial quantity and, if there was, it is likely to only just exceed the prescribed amount.
Although the prosecution have indicated that the charges will be put on a joint commission basis, it is not at this stage possible to assess the strength of the case on that basis. Similarly, although there is evidence that the applicant knew there was a handgun at the premises, and she was the tenant on the lease of the premises, it is not possible to assess the strength of the prosecution case on the firearms offences beyond acknowledging that it is not weak.
Once it is accepted that the prosecution case is not weak, then ordinarily the strength of the prosecution case may not have much relevance to the existence of exceptional circumstances.[19] However, it may become important once the likely delay before trial and the length of any term of imprisonment in the event of a finding of guilt are factored in. In the circumstances, there are certainly triable issues on the quantity of drugs and possession of the firearms.
[19]Re Jiang [2021] VSC 148, [56] (Lasry J).
It is plain that there are, and will continue to be, substantial delays in bringing indicatable charges to trial. It is not possible to calculate the delay with any degree of confidence. It is enough to observe that given that the committal mention in this matter is not until 2 December 2021, it is unlikely that a trial would be heard before the second half of 2023. It is entirely possible that the applicant would spend more than two years on remand.
Having regard to the weight of the drugs found and the fact that the applicant has no criminal history, there is a real chance that the period of remand might exceed the minimum period that the applicant would have to serve in the event she is found guilty of the commercial quantity charge and firearms charges. That eventuality would be almost certain in the event that she is found not guilty of the more serious charges and falls to be sentenced on trafficking simpliciter.
Further, not only is there significant delay, but the conditions in prison as a result of the pandemic are extremely onerous. The applicant has been in prison since she was remanded on 8 September 2021 and has been in lockdown since then other than for one day. With the incursion of the virus into parts of the prison population, the risk of lockdown and the need for prisoners to isolate is very high. It adds significantly to the burden of incarceration.
The combination of delay, the conditions of incarceration, and that the quantity of drugs involved is uncertain and may well not exceed the commercial quantity, satisfy me that there are exceptional circumstances. I have also taken into account the absence of any criminal history, the availability of accommodation, and the cooperation of the applicant in terms of her admissions.
Unacceptable risk
The prosecution submitted that there is an unacceptable risk that the applicant might revert to drug use and commit offences whilst on bail and may fail to appear.
I am satisfied that there is no unacceptable risk.
Very importantly, the applicant has accommodation that will provide some stability and security. Ms Gasparic gave evidence on the application. She said that she lives in Clayton with her two children aged 10 and 8. She admitted to having past involvement with drugs but said that since she has had children she has not taken drugs and has no involvement with that environment. She said that she has known the applicant for many years and has had intermittent contact with her. She was aware of the charges and was willing to let the applicant live with her.
Ms Gasparic said that she would have no tolerance for drug taking, would not allow any drugs or drug taking in her home, and that her priority was the welfare of her children. She said she would report any breach of bail conditions to the informant knowing that to do so would mean that the applicant might return to custody. She said that having got off drugs herself when she had a child, she knew that it could be done and she could assist the applicant.
I accept her evidence. The fact that Ms Gasparic has had a past history of drug use in my view does not make her, or her premises, unsuitable. That history will ensure that she is not naïve in relation to the applicant and I accept that Ms Gasparic has, in her children’s welfare, a powerful reason to notify the informant in the event of a breach of bail by the applicant.
The applicant has a long history of drug use and there remains a risk that the applicant will slide back into drug use. However, the applicant is 50 years of age and has no criminal history. She will have the support of Ms Gasparic, and CISP will also provide assistance. Those matters, and the real incentive to avoid a return to custody, will provide a measure of protection against any further offending or resumption of drug taking. Further, it is necessary to have regard to the matters that I have accepted constitute exceptional circumstances.
I note that the report provided by CISP recommended there be one month of case management. The prosecution sought that this period be extended. I will not make a formal direction as to the period of time in which CISP should be involved, but will permit CISP to determine whether or not further contact and support beyond one month is required. The obligation imposed on the applicant by way of a condition of bail, that she comply with directions of CISP, will extend to directions given during the period of bail.
To an extent the risk will also be ameliorated by strict conditions, including a curfew and the requirement to provide drug screens to the informant. Having regard to the totality of these matters I am satisfied that a grant of bail would not pose an unacceptable risk.
It is for these reasons that I granted bail to the applicant.
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