Re Application for Bail by DK
[2021] VSC 596
•17 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0233
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by DARREN K | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF JUDGMENT: | 17 September 2021 |
CASE MAY BE CITED AS: | Re Application for Bail by DK |
MEDIUM NEUTRAL CITATION: | [2021] VSC 596 |
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CRIMINAL LAW – Bail – Applicant charged with trafficking cocaine and other offences –Compelling reason exists justifying a grant of bail – No unacceptable risk – Only matter in dispute is amount of surety – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4AA, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Farrington | Sarah Pratt and Associates |
| For the Respondent | Ms R Harper | Office of Public Prosecutions |
HER HONOUR:
Introduction
The applicant (‘Darren K’) is 35 years old and has been on remand since 27 August 2021. That day, Darren K was arrested and charged by the Informant, Constable Guy Mottershead, with the following charges (‘the Mottershead charges’):
(a) Charge 1: Traffick a drug of dependence, namely cocaine, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act (‘DPCS Act’) on 27 August 2021;
(b) Charge 2: Possess a drug of dependence, namely cocaine, contrary to s 73 of the DPCS Act on 27 August 2021;
(c) Charge 3: Traffick a drug of dependence, namely methylamphetamine, contrary to s 71AC of the DPCS Act on 27 August 2021;
(d) Charge 4: Possess a drug of dependence, namely methylamphetamine, contrary to s 73 of the DPCS Act on 27 August 2021;
(e) Charge 5: Possess a drug of dependence, namely Sildenafil (Viagra),[1] contrary to s 73 of the DPCS Act on 27 August 2021;
[1]It appears to the Court that Sildenafil is a Schedule 4 Poison within the meaning of ‘poison or controlled substance’ at s 4 of the DPCS Act (being that is listed in schedule 4 of the Commonwealth Poison Standard), rather than a drug of dependence. Sildenafil does not appear in Schedule 11 of the DPCS Act.
(f) Charge 6: Negligently deal with proceeds of crime, namely $500,000, contrary to s 194(4) of the Crimes Act 1958 (‘Crimes Act’) on 27 August 2021;
(g) Charge 7: Deal with suspected proceeds of crime, namely $500,000, contrary to s 195 of the Crimes Act on 27 August 2021;
(h) Charge 8: Possess a drug of dependence, namely Ecstasy, contrary to s 73 of the DPCS Act on 27 August 2021; and
(i) Charge 9: Possess cartridge ammunition whilst not holding a license, contrary to s 124(1) of the Firearms Act 1996.
This is Darren K’s first time in custody. He has no prior convictions nor any prior bail history. He has no other outstanding matters and there are no co-accused.
He was refused bail in the Melbourne Magistrates’ Court on 28 August 2021 on the basis he had failed to show a compelling reason justifying a grant of bail. Further, Magistrate Klestadt found that Darren K posed an unacceptable risk of committing offences whilst on bail, endangering the safety or welfare of any person and interfering with a witness or obstructing the course of justice.
The Mottershead charges are next listed for Committal Mention in the Melbourne Magistrates’ Court on 22 November 2021.
Circumstances of applicant’s alleged offending and arrest
At about 8:45am, on Friday 27 August 2021, Darren K was intercepted by four police officers. Darren K was alone in his Ford Ranger vehicle outside an address in Cranbourne West at the time. Police had a search warrant to search Darren K’s vehicle. Two more police officers, including the Informant, attended shortly after.
The attending police members served a copy of the warrant on Darren K, and proceeded to search him and his vehicle in accordance with the warrant. They found the following:
(a) Apple iPad on the front passenger seat;
(b) Apple laptop, also on the front passenger seat;
(c) One re-sealable bag containing approximately 1.6 grams of a clear crystal substance, believed to be methylamphetamine (Ice), in a sunglasses case in the rear driver’s side passenger foot well;
(d) Darren K’s mobile phone in his pants pocket; and
(e) One blue coloured tablet, believed to be Viagra.
After searching Darren K and his vehicle, police produced a second warrant to search his residence in Cranbourne. Police attended that address shortly after with Darren K, and searched the premises. They located the following items:
(a) $523,300.00 in cash within a suitcase in a walk in robe of the main bedroom of the premises;
(b) Re-sealable bags of a clear crystal substance believed to be methlyamphetaimes (‘Ice’), one found in the TV cabinet in the main bedroom, and one in a locked safe on the top shelf of the walk-in robe in the main bedroom. Police allege the applicant was in possession of approximately 5.3 grams of Ice in total;[2]
[2]Informant’s Report, [26].
(c) Re-sealable bags containing a white substance (no quantity specified) believed to be cocaine, one found in a white jar in a drawer in the main bedroom, and another two more found in the locked safe. Police allege the applicant was in possession of approximately 9.3 grams of cocaine in total;[3]
[3]Informant’s Report, [26].
(d) Various ammunition within a glass jar in a drawer in the main bedroom;
(e) One blister pack containing four blue tablets, believed to be Viagra, a toiletries bag in the applicant’s ensuite; and
(f) One loose yellow tablet believed to be Ecstasy, located within a toiletries bag in a drawer of the applicant’s ensuite.
Several smaller empty bags were also found within the locked safe, and a pair of digital scales were also found.[4]
[4]Informant’s Report, [27], Exhibit GF-1 to the Affidavit in Response (‘Informant’s Report’).
The informant has applied for the seized substances to be tested, but this has not yet occurred.[5] The iPad that was seized from Darren K has been analysed and apparently has on it messages that are consistent with the applicant trafficking drugs.[6]
[5]Affidavit in Response, [17].
[6]Informant’s Report, [32].
Darren K was arrested and interviewed. He made full admissions to possessing the drugs found, and the ammunition. He explained he uses the ammunition as part of the furniture he makes. He gave no comment as to the cash located at his premises. He also denied trafficking drugs and told police the drugs found were all for personal use, explaining he had commenced using methamphetamine six months prior to help him stay awake and to cope with his workload.[7]
[7]Informant Report, [15].
The applicant’s personal circumstances
Darren K is a self-employed carpenter. He lives alone in Cranbourne. He has a partner, Kristee C, who lives in Cranbourne West.
It appears he is struggling with a drug addiction and some psychological issues.
He has expressed willingness to receive psychological treatment from Laura Fleming, a forensic psychologist with Ferrari Consulting Group if he is released on bail. Ms Fleming provided a letter confirming this.[8] If he is released on bail, Darren K has his first appointment with Ms Fleming on 23 September 2021. The sessions would be either weekly or fortnightly depending on his needs. Darren K has indicated to Ms Fleming that he will also arrange a mental health care plan from his GP as soon as possible if bailed.
[8]Dated 28 August 2021, Exhibit SP-2 to the Affidavit in Support of Sarah Pratt affirmed 3 September 2021.
Resolution of matters before the hearing
Before the hearing in this matter, the respondent advised the Court and the applicant’s representatives by email that bail was unopposed.
The respondent’s representatives then clarified the position in their Affidavit in Response.[9] The respondent submitted that the Court could be satisfied that a compelling reason existed justifying a grant of bail.
[9]Sworn by Gabrielle Rebekah Fitzgibbon on 13 September 2021 (‘Affidavit in Response’).
Regarding risk, the informant had expressed concern about Darren K’s proposed to live with Kristee C at her home in Cranbourne West if bailed. Kristee C has admitted to police that she is a drug user and her own home was searched by police on 1 September 2021. A small amount of drugs was found at her premises during that search.[10] In light of this, prior to the hearing, the parties agreed that the applicant’s address in Cranbourne was a more suitable bail address.
[10]A search warrant was executed at her premises on 1 September 2021 and drugs, and paraphernalia were located. She advised police during the search that she is a drug user, see Informant’s Report, [30].
The respondent also expressed concern that the proposed surety of $5,000, to be provided by the Kristee C, was not sufficient having regard to the amount of money seized from the applicant.[11] In the days leading up to the hearing, the applicant’s representatives advised that a new surety amount of $10,000.00 was available from the applicant’s brother, Bradley K. The applicant also advised the Court and the respondent that the balance of the conditions of bail proposed by the respondent were agreed to. Those conditions included a static residence condition, imposition of a curfew, daily reporting to police, weekly urine drug screens, a prohibition on possessing more than one mobile phone and/or any encrypted devices, engaging with drug treatment, and abstinence from drugs and alcohol.
[11]Affidavit in Response, [37].
As such, at the time of the hearing, the only remaining issue in dispute between the parties was the amount of the surety.
Applicable law
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[12] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.[13]
[12]The Act, s 1B(2).
[13]The Act, ss 1B(1)(a) and 1B(1)(b).
Step 1: Show compelling reason test
While the compelling reason test was effectively conceded by the respondent, for completeness I note that, pursuant to s 4AA(3) of the Act, because charge 1 (trafficking a drug of dependence) is a Schedule 2 offence within the meaning of the Act,[14] and because none of the circumstances under s 4AA(2) of the Act apply in this case, Darren K must satisfy the Court that a compelling reason exists that justifies the grant of bail.[15] In determining whether a compelling reason is established, pursuant to s 3AAA, I must take into account the relevant surrounding circumstances.
[14]The Act, Sch 2, Item 24(b) – being an offence against s 71AC (trafficking in a drug of dependence) of the Drugs, Poisons and Controlled Substances Act 1981.
[15]The Act, ss 4C(1A) and 4C(2).
It is clear from the authorities that a compelling reason can be established by a combination of circumstances.[16] It is not necessary for the applicant to show a reason that is ‘irresistible or exceptional’. While ‘compelling reason’ is not defined, the Court of Appeal has held that it is one which is ‘forceful, and therefore convincing’, a reason that is ‘difficult to resist.’[17]
[16]Re Koshani [2019] VSC 678.
[17]Rodgers v The Queen [2019] VSCA 214.
Step 2: Unacceptable risk
Even where the Court is satisfied that a compelling reason exists, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail,[18] Darren K would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.[19]
[18]The Act, ss 4D(1)(b), (3).
[19]The Act, ss 4D(1)(b), (2).
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’. The Court is also directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
Delay and COVID-19
This Court has found on many occasions that potential delay as a result of the COVID-19 pandemic is a relevant matter, and indeed can on its own be a compelling reason in certain circumstances.[20]
[20]See for example: Re Tito [2021] VSC 574; See also Re Diab [2020] VSC 196, [38].
Evidence regarding the surety at the hearing
Darren K’s brother Bradley K attended the hearing to give evidence in support of his offer of a surety. Bradley K is Darren K’s older brother. Darren and Bradley have one other brother, Ashley. He and Darren K are very close on his evidence, but he was not aware of his brother’s drug habit. Bradley K confirmed his brother is a cabinet maker who is working from home, he is talented, hard-working and is in the process of getting his own business started. Bradley K has not been able to speak to his brother whilst Darren K has been in custody.
Bradley K recently suffered a stroke and is reliant on a Disability Support Pension. He confirmed that he could offer a cash surety of $10,000. Bradley K was aware of his brother’s criminal charges, and that they involve drugs. He was also aware that there was an allegation regarding between $500,000 and $600,000.
Bradley K understood that the surety would be forfeited and that he would lose the money if Darren K were granted bail, and then failed to attend Court or if he were to breach any of the conditions of bail. He confirmed he was still prepared to offer the surety in that knowledge.
Bradley K also thought he would inform the police if he found out that Darren K was not complying with his bail. To assist his brother to comply with bail, Bradley K considered he could call him regularly, help him to get his business off the ground and help him to seek out support if he was struggling. Their mother Jeanette is also supportive of Darren K, and is committed to helping him to get on the right track. He understood that strict bail conditions were proposed if Darren K were released on bail and he agreed that conditions assisting him to address his issues were needed.
Mr Farrington highlighted that Bradley K is reliant on a Disability Support Pension from Centrelink and the figure of $10,000 was significant for him. The fact of his brother being willing to put up that sum of money weighs heavily on Darren K in light of his brother’s financial situation. Mr Farrington acknowledged there were some issues with Darren K’s partner also needing drug treatment and the need for Darren K to avoid negative peers. Matters of this kind had been discussed with Darren K as part of preparation for the bail application.
Analysis
I acknowledge the sensible concession made by the respondent as to the compelling reason test and am satisfied a compelling reason exists justifying a grant of bail having regard to the combination of the following factors:
(a) The applicant has no prior criminal history and nothing pending;
(b) The applicant is facing considerable delays in having his matter finalised due to backlogs in the Court system caused by COVID-19 and his ultimate sentence may exceed his time on remand if he is not bailed;
(c) The onerous conditions in custody owing to the COVID-19 pandemic and related restrictions;
(d) He has a stable bail address;
(e) He has psychological treatment available to him, to commence immediately after being released on bail;
(f) He is willing to undertake urine drug testing if released on bail;
(g) He has employment available as a self-employed carpenter; and
(h) He appears to recognise the need to address his drug habit.
Regarding unacceptable risk, I again acknowledge the helpful narrowing of the issues between the parties and am satisfied that risk can be addressed by the imposition of conditions that ensure the applicant lives at a static residence, addresses his drug habit, and can be safely and effectively monitored on bail, including by daily reporting, urine drug screening and by being contactable by the informant by phone. Ultimately, after Bradley K gave his evidence, the respondent confirmed they did not press the issue of the amount of the surety and confirmed that the amount of $10,000 was satisfactory to ameliorate risk, notwithstanding the fact that it was disproportionate to the amount seized from the applicant. This concession was made upon hearing the evidence of Bradley K.
I accept that Bradley K’s evidence was credible. It was clear that he loves his brother and is determined to assist him to keep the conditions of his bail.
I am satisfied that the surety amount of $10,000.00 together with other agreed conditions are satisfactory to ameliorate risk to an acceptable level.
Accordingly, bail is granted with conditions.
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