Re Application for Bail by Moshey Youkhana
[2017] VSC 406
•13 July 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0108
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for Bail by MOSHEY YOUKHANA
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JUDGE: | Weinberg AP |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 July 2017 |
DATE OF JUDGMENT: | 13 July 2017 |
CASE MAY BE CITED AS: | Re Application for Bail by Moshey Youkhana |
MEDIUM NEUTRAL CITATION: | [2017] VSC 406 |
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CRIMINAL LAW – Application for bail – Attempting to import commercial quantity of cocaine and other offences – Applicant in ‘show cause situation’, having been charged with indictable offence while on bail – Whether ‘unacceptable risk’ of failing to answer bail and of committing further offences while on bail and of endangering safety and welfare of members of public – Applicant said to be ‘key organiser’ of drug syndicate – Failure of applicant to discharge onus of demonstrating not ‘unacceptable risk’ – Bail refused – Bail Act 1977 ss 4(2)(d) and 4(4)(a) – Criminal Code Act 1995 (Cth) ss 11.1 and 307.1.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Maidment SC | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
HIS HONOUR:
The applicant, Moshey Youkhana, now aged 47, was arrested and charged on 18 January 2017 with having, between 28 September 2016 and 8 December 2016, attempted to import a commercial quantity of cocaine, contrary to ss 11.1 and 307.1 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’).
In March 2017, following the execution of various search warrants, a number of further charges were laid:
Charge
Act
2
Possessing proceeds of crime (less than $100,000),
Criminal Code s 400.9(1A)
3
Possessing a controlled drug
Criminal Code s 308.1(1)
4
Possessing a drug of dependence
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
5
Possessing a drug of dependence
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
6
Possessing a drug of dependence
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
7
Possessing a drug of dependence
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
8
Possessing a drug of dependence
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
The applicant now seeks bail. He is required to ‘show cause’, pursuant to s 4(4)(a) of the Bail Act 1977, as to why his detention in custody is not justified. That is because he allegedly committed these offences while he was at large, awaiting trial for another indictable offence or offences. It is common ground that that means that the onus rests upon him both to show cause, and to satisfy the Court that he is not an unacceptable risk of failing to surrender himself into custody in answer to his custody, of committing an offence whilst on bail, and endangering the safety or welfare of members of the public.[1]
[1]See s 4(2)(d) of the Bail Act. Note it is not suggested that the applicant is an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice.
In relation to the present matters, the applicant was to face a contested committal in late August 2017. However, I understand that that date has now been vacated. I am of the view that this trial will not take place before the first half of 2019 at the earliest.
The applicant has previously been refused bail, apparently on the basis that he was said to pose an unacceptable risk.
The background to the applicant’s alleged offending is similar in many respects to that set out in my judgment this day granting bail to a co-accused, Youssif Tawfik.[2] These reasons should be read in conjunction with that judgment, at least in so far as the background facts are concerned.
[2]Re Tawfik [2017] VSC 405 (‘Tawfik’).
The evidence thus far gathered, upon which the police primarily rely in opposing bail, is set out in an affidavit affirmed by Detective Senior Constable Andrew Sward, who is a special member of the Australian Federal Police stationed at Melbourne. Detective Sward is currently attached to the Joint Organised Crime Task Force investigating this matter. It may be summarised as follows.
During the investigation, it was established that the applicant had, at relevant times, used seven mobile telephone numbers, all subscribed using false details. He also used eight different motor vehicles, all registered to others.
The applicant’s involvement is said to date back as far back as April 2016. In his capacity as a director of a company known as Boat Tech Customs Pty Ltd (‘Boat Tech’), he purchased an 11.5 metre Shark Cat boat, and stored it at a factory in Campbellfield. He commenced modifications upon it, including the installation of additional fuel tanks.
On 18 May 2016, the applicant supplied another alleged member of the Barada syndicate with three photographs of a Caribbean Reef Runner boat, marked with signage indicating that it was for sale. Police believe that the members of the Barada syndicate were, at that stage, intending to use that boat to collect a consignment of cocaine from the ‘mothership’, known as the KM8.
On 28 September 2016, water police intercepted the Caribbean Reef Runner on Port Phillip Bay. On board they found what they described as ‘anti surveillance equipment’. That same day, a search warrant was executed at Boat Tech, and the Shark Cat was seen to be under repair. The applicant acknowledged that he owned the Shark Cat, and that he was currently modifying it, apparently for long range sea travel.
Between 17 and 21 October 2016, the applicant purchased a large, white 7.4 metre trailer boat, Lucky Strike. The purchase price was $185,000.
On 28 October 2016, the applicant, along with two other members of the Barada syndicate, was seen to be travelling along the road to Port Fairy. They were towing the Lucky Strike, and had with them a number of jerry cans filled with fuel. They were then observed to conduct what the police described as a ‘test run’ off the southern coast from Port Fairy.
On 1 December 2016, described by Detective Sward as ‘Attempt 1’, the ‘mothership’, KM8, entered an area, outside the economic exclusion zone, approximately 300 nautical miles from Port Fairy. The applicant and another Barada syndicate member drove to Port Fairy, again towing the Lucky Strike. When they were near Colac, the boat dislodged from the trailer and fell on to the freeway, sustaining significant damage. The applicant attended an auto store in Colac and purchased fibre glass tape in an attempt to effect repairs. They then attempted to launch the vessel but the Lucky Strike could not stay afloat, and was removed from the water.
On 2 December 2016, the applicant, with another member of the syndicate, organised for the purchase of a new, replacement boat, the Perceive. The boat was ultimately purchased for $100,000 in cash.
On 3 December 2016, described by Detective Sward as ‘Attempt 2’, the applicant and another syndicate member purchased a number of jerry cans. Importantly, there was reference in their recorded conversation to ‘some guys in Sydney who were selling the product before it arrived.’ It was said that one of them was ‘tapped’ and that Federal Police had heard that there was a ‘bigger ship coming’, about 100 kilometres outside Sydney. Someone was said to have ‘got 15 years for sailing’, while another ‘did nine’.
The conversation continued: ‘…have to go to China, why the fuck are we dealing with these cunts, let’s go straight there, chop these motherfuckers out, we’ll come to you don’t worry, come close to you.’ Later that day, the applicant, along with two other syndicate members, was in a Toyota Hilux. There was discussion regarding the purchase of satellite phones. Subsequently, on board the Perceive, someone said ‘just in case the cops search it’. Later that day, in the car again, there was talk of ‘getting this one through and the next one being easier’.
On 5 December 2016, there was discussion about how high seas and bad weather had apparently foiled the next attempt.
On the evening of 6 December 2016, and the early hours of the following morning, the Perceive was taken out into the water near the Port Fairy lighthouse. Shortly afterwards it crashed into rocks. This caused significant damage, which rendered the vessel unseaworthy.
In short, the various attempts made by the applicant to acquire a small boat to unload the cocaine from the KM8 all failed. Two of those boats were damaged and rendered unusable.
Detective Sward contends, with some force, that the evidence against the applicant, consisting largely of recorded conversations to which he was a party, appears telling, and gives rise to what seems to be a strong prosecution case.
The applicant has a significant criminal history. Putting to one side low level driving offences, of which there are a large number, his record may be summarised as follows.
·On 11 October 2000, he was convicted at Wollongong District Court of receiving stolen property, and theft. He was sentenced to a Community Service Order of 400 hours.
·On 17 April 2002, he was convicted of possession of a prohibited drug and fined $300.
·On 29 September 2002, he committed an armed robbery in company at the Mandarin Club in Sydney. He was in possession of a handgun during the prolonged incident, where the manager and several female employees were bound hand and foot with duct tape. The manager was threatened with being kneecapped, and approximately $82,000 was stolen (none of which was ever recovered). On 4 July 2003, he was imprisoned for six years with a non-parole period of four years and two months. That sentence was later reduced on appeal to one of five years and three months, with a non-parole period of three years and three months. He was released on parole in May 2007.
·On 23 January 2003, he was convicted at Parramatta Local Court of improperly interfering with a corpse, and imprisoned for a term of 15 months. On 16 May 2002, police located the dead body of the male in the boot of an abandoned car in Parramatta. The deceased was later identified as a cousin of the applicant. The cause of death was a gunshot wound. The applicant took part in a record of interview with police, where he stated that he had last seen his cousin alive at a nightclub on 13 May 2002. He had given his cousin the key to his car and workshop. He had gone to the workshop at about 9:30 pm and found the deceased on the floor in a large pool of blood. He had put the body of the deceased in the boot of a red Toyota Camry and hosed the blood from the workshop floor. He had then driven the Camry to the place where it was abandoned.
·On 5 May 2003, he was convicted at Parramatta Central Local Court, in August 2002, of driving whilst disqualified and imprisoned for six months.
·On 24 August 2008, the applicant and a co-accused entered the Sylvania Hotel in Campbellfield. He was armed with a silver imitation handgun, and the co-accused with a tomahawk. Both men were wearing balaclavas. An amount of $3300 cash was stolen. On 24 April 2009, the respondent was convicted of aggravated burglary, theft and unlicensed driving. He was sentenced to a term of four years’ imprisonment with a non-parole period of three years. In April 2012, he was released on parole.
On 10 August 2016, the applicant was charged with possession of cocaine, methylamphetamine, cannabis and anabolic steroids, as well as trafficking ecstasy and dealing with property suspected of being proceeds of crime. He was bailed by police on that day, and his bail was extended to 11 October 2016. On 18 November 2016, his case was adjourned for a contest mention on 10 March 2017. That was further adjourned until August 2017. However, at a contest mention on 11 July 2017, the matters were resolved by way of a plea to the possession charges, while the charges of trafficking and dealing with property were withdrawn. The applicant was fined an aggregate sum of $2000.
On 2 March 2017, the applicant was charged with possessing a prescribed precursor chemical (not less than the prescribed quantity), trafficking methylamphetamine and possession of methylamphetamine. Those charges arose out of an incident on 2 September 2015, where he was observed by police putting a bag, later found to contain a chemical precursor, on a co-offender’s car back seat. Forensic analysis of the substances seized has identified one of the items as consisting of 1.4 kilograms of Iodine, and approximately four grams of methylamphetamine. The lapse of time between the execution of the search warrant and the applicant being charged is said to have been because of delays with forensic analysis and a period of extended leave on the part of the informant.
Mr Maidment SC, who appeared for the applicant, acknowledged correctly that his client had to show cause why he should be granted bail. He also acknowledged that, unlike Youssif Tawfik, the applicant bore the onus of satisfying the Court that he did not pose an unacceptable risk of failing to answer bail, of committing further offences, or endangering the safety and welfare of members of the public.
In support of the application, Mr Maidment submitted that:
·The Crown case would be strongly disputed. The applicant continued to deny having attempted to import the cocaine found on board the KM8.
·The applicant had no criminal history of having trafficked in drugs. Nor had he ever previously been involved in importing drugs into this country. Moreover, save for the 10 August 2016 offences, for which the applicant was on bail when he allegedly committed the present offences, he had no history of having committed offences whilst on bail. He also submitted that the applicant had no prior history of breaching conditions of bail.
·The applicant was currently on his own undertaking for the August 2016 drug offences, suggesting that these were not viewed all that seriously.
·Subpoena arguments were likely to delay the commencement of the committal, and trial. There was no realistic prospect of any trial before 2019.
·The applicant is an Australian citizen, with strong ties to this country. He has a de facto wife and children.
·The applicant can provide a substantial surety of $700,000.
·The applicant has been assessed as suitable for a residential drug rehabilitation program if released on bail, that being a three month program at DayHab Addiction Treatment Centre. Participation in such a program would be subject to close monitoring.
·Other conditions could be put in place to reduce risk of flight.
In addition, the applicant indicated during the course of argument, through Mr Maidment, that he would be prepared to be fitted with an electronic ankle monitoring device of the same kind that was the subject of evidence in the matter of Tawfik, which, as I have said, was heard together with this application.
The police, in opposing bail, submitted first that the applicant had not shown cause. Secondly, they submitted that he had not demonstrated that he did not pose an unacceptable risk when it came to considering whether he was likely to fail to answer bail, commit offences whilst on bail and endanger the safety or welfare of others. They emphasised the following matters:
·These were serious charges, carrying, in the case of attempted importation, a maximum sentence of life imprisonment.
·The applicant had played a major role in the proposed importation. Indeed, he was described as a ‘key organiser’ of the Operation Barada syndicate.
·There was a strong case against the applicant. Based on the listening device recordings, he was involved in all three abortive attempts to reach KM8. He was directly involved in the purchase and modification of the three boats that were used.
·The applicant had a powerful motive to flee the jurisdiction by virtue of the fact that, at the age of 47, he was facing the possibility of a lengthy custodial sentence, possibly one that would see him into old age.
·The applicant had shown a disregard for the requirements of bail. The alleged offending took place while the applicant was on bail in relation to the August 2016 drug charges.
·The applicant had the means to leave this country. He had access to substantial amounts of cash. He was part of what was said to be an organised criminal network. He had gone to great lengths in the past to avoid detection. For example, in February 2014, he was denied entry into the United States, en route to Canada, because of his lengthy criminal record. When questioned on his return to Australia, he said that he had been attempting to visit his sick father in Canada. Yet, he was found to have an encrypted mobile phone in his possession, which he stated, improbably, that he had found in transit. He was also in possession, on that occasion, of some $13,000 in cash.
When the applicant was arrested in his hotel room at the Versace Hotel on the Gold Coast at about 6:00 am on the morning of 18 January 2017, police located a sum of approximately $98,000 in cash. He was also in possession of a small quantity of cocaine, as well as an encrypted Blackberry mobile phone. He said, once again somewhat improbably, that he knew nothing about the Blackberry, stating that it was already in the room when he checked in.
In addition, the applicant is said to have made a number of material false denials in his record of interview with police. He initially denied ever having gone to Port Fairy. He later admitted to having been on the Lucky Strike, to go tuna fishing. He then claimed he had only gone to Port Fairy twice, first on the Lucky Strike, and only 20 kilometres for tuna fishing. He said that the first time he went out on the Perceive, someone became seasick and the boat was forced to return. He said that the second time he understood they were going to ‘Tassie’, even though he did not know where ‘Tassie’ was. He said that they were not fishing but that they had left at 1:00 am because that was ‘the time they wanted to go’.
The police contend that the applicant has failed to show cause why his detention in custody is not justified. They go on to say that, even if the Court were to be satisfied that he had shown cause, he is an unacceptable risk of: (a) failing to answer bail, (b) committing offences whilst on bail and (c) endangering the safety and welfare of members of the public.
I can dispose of (c) relatively briefly. It rests upon the fact that, on 27 September 2016, members of the Homicide Squad executed a search warrant at the applicant’s home address. The warrant related to a murder that had been committed the previous day. It seems that the brother of the applicant’s de facto had been charged with that murder. During the search, investigators found a witness statement that related to the 2002 murder of the applicant’s cousin, arising out of which the applicant had been convicted of interfering with a corpse. Sections of the witness statement relating to the applicant having been in possession of a firearm around the time of the murder in 2002 were highlighted. Police say that they subsequently notified the New South Wales Homicide Squad of what they had found, because they had concerns about the safety of the person who made that witness statement.
It would be somewhat speculative, on that evidence alone, to find that the applicant, if released on bail, would endanger the safety and welfare of members of the public.
There is far more to be said for the concern expressed by Detective Sward as to the risk posed by the applicant of committing further offences if granted bail. His criminal record is a lengthy one, and there are indications of recent offending.
No doubt, that risk could be mitigated to some extent if the applicant were to go into the DayHab Addiction Treatment Centre, as is proposed. Evidence regarding that institution was led before me. Conditions there are such that he would be closely monitored for at least the period of his residence (three months or so). He would also be expected to be drug-free. Of course, he could leave at any time, but an undertaking was proffered to the Court by the manager, Ms Sarah Green, that were he to do so, or breach any of his bail conditions, that fact would immediately be reported to police.
It is the likelihood of the applicant committing further offences, in combination with the risk of his failing to answer bail, that seems to me to stand as an insuperable obstacle to his being released on bail.
There is powerful evidence to suggest the applicant was, as the police contend, a key organiser within the Barada syndicate. The listening device recordings speak for themselves. They seem to me to be particularly incriminating and, I think, a jury may well find them so. It will be difficult for the applicant to provide a plausible explanation for his movements, as observed by police, and for his involvement in the recorded conversations. In particular, the applicant’s participation in a discussion about individuals in Sydney having been ‘selling the product before it arrived’ and ‘one of them being tapped’, as well as the references in that discussion to the sentences imposed upon those involved in drug dealing in New South Wales, are particularly damaging.
I do not consider the applicant’s willingness to undergo electronic monitoring by way of ankle bracelet as sufficient to discharge the onus that rests upon him to show that he is not an unacceptable risk of failing to meet his bail. My reasons for that conclusion are the same as those expressed in my judgment in the matter of Tawfik.
Accordingly, given that the applicant has the onus of satisfying the Court that he is not an unacceptable risk with regard to both absconding and committing further offences, and given that he has not discharged that onus, I would refuse bail.
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