Re Fernandez
[2021] VSC 860
•22 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0330
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an Application for Bail by STACEY FERNANDEZ | Applicant |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 December 2021 |
DATE OF JUDGMENT: | 22 December 2021 |
CASE MAY BE CITED AS: | Re Fernandez |
MEDIUM NEUTRAL CITATION: | [2021] VSC 860 |
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CRIMINAL LAW – Application for Bail – Accused charged with trafficking a drug of dependence in a commercial quantity, possession of a drug of dependence, deal with property suspected of being proceeds of crime, commit indictable offence whilst on bail, possession of cartridge ammunition without licence or permit and possession of a prohibited weapon – Whether exceptional circumstances exist justifying the grant of bail – Whether accused an unacceptable risk – Bail refused – Bail Act 1977 ss 1B, 3AAA, 3A, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Blake | Emma Turnbull Lawyers Pty Ltd |
| For the Respondent | Ms J Piggott | Office of Public Prosecutions |
HER HONOUR:
By application dated 22 November 2021 the applicant seeks a grant of bail with respect to nine charges, all alleged to have been committed on 16 April 2021. They are trafficking a drug of dependence – commercial quantity, possession of a drug of dependence (two counts), deal with property suspected of being proceeds of crime (three counts), commit an indictable offence whilst on bail, possession of cartridge ammunition without licence or permit and possession of a prohibited weapon.
The applicant has made three previous unsuccessful applications for bail. On 20 April 2021, 27 July 2021 and 17 November 2021 bail was refused in the Magistrates’ Court on the dual basis that the applicant had failed to demonstrate exceptional circumstances justifying the grant of bail[1] and that she was an unacceptable risk of at least some of the s 4E(1)(a) Bail Act1977 (‘Act’) factors.
[1]The Record of Order of 27 July 2021 incorrectly states the ground of refusal as ‘failure to show compelling reason’. Nothing turns on this error.
The matters are next listed for an initial directions hearing in the County Court on 20 January 2022.
Summary of alleged offending
At about 1.05am on 16 April 2021 police officers Roberts and Tudor were on patrol in Bacchus Marsh when they observed a white Ford Ranger utility parked out the front of 2 Evans Court, Darley. The utility had its lights on. Roberts and Tudor followed the utility as it left the address and intercepted it as it travelled eastbound on the Western Freeway at the bottom of the Gisborne Road on-ramp.
Aaron Mason, the co-accused, was seated in the driver’s seat. The applicant was seated in the front passenger seat. Mason was asked to produce his driver licence, but stated he did not have it with him. His identity was confirmed via the Victoria Police IRIS device. The applicant produced her driver licence upon request.
Roberts and Tudor performed a search pursuant to s 82 of the Drugs Poisons and Controlled Substances Act 1981 (‘DPCSA’). Mason was subject to a pat down search. A zip lock bag containing a large quantity of a crystal-like substance was found protruding from the waistband of his pants. Upon later analysis the substance was found to be methylamphetamine with a total weight of 233.6 grams and a purity of 84 percent.
Roberts and Tudor requested the attendance of a female officer to conduct a pat down search of the applicant. Police officers Coustley and Salathiel attended. The pat down search of the applicant by Coustley did not locate any items.
Tudor and Salathiel conducted a search of the utility. They located five MDMA (ecstasy) tablets within a zip lock bag in the centre console cup holder, a set of scales in the rear pocket of the passenger seat, a knuckle duster in the compartment underneath the rear seat, a Louis Vuitton purse belonging to the applicant containing $353.40 cash and a black jacket on the rear seat containing a wallet with a driver licence in the name of Mason and $1,500 cash as well as a 9mm cartridge of ammunition. Further, 13 Makita brand power tools were located in the rear tray of the utility.
The applicant and Mason were taken to the Bacchus Marsh police station. The applicant told police that she had attended a residential address with Mason, but remained in the vehicle. She said that when he returned she observed him carrying a striped bag and she knew that it contained tools. The applicant further stated that an ‘Oppo’ phone seized by police belonged to her.
A full search of the applicant was then conducted by two female police officers. The sum of $9,635 cash was located in the applicant’s underwear.
On 17 April 2021 the applicant was transported from the Melbourne Custody Centre to the Dame Phyllis Frost Centre. A guard entered a cell vacated by the applicant and located zip lock bags containing a crystal like substance and a face mask in the toilet. CCTV footage had recorded the applicant placing the items, together with toilet paper, in the toilet bowl and attempting to flush them down. Upon later analysis the substance was found to be methylamphetamine with a total weight of 9.7 grams.
The Oppo phone belonging to the applicant was later analysed. It had two IMEI numbers. The following messages were recovered.
(a) In a message on 15 April 2021 a message was sent to the contact ‘Cass Caz’ via the Signal messaging application, ‘Babe I need a q key, Can U guys do it for 26, By any chance’. There was no reply to the message. In another message Cass Caz asked ‘How’d you go with drinks darl?’. The applicant replied ‘My mate is fucking around but I’m on my way to someone else now who would have I saved U some personal of the other ones either way n I desperately need cold so I won’t be long’.
(b) The applicant received a message from a contact ‘J Borg’ asking, ‘can you tick halfa g’ and another, ‘can you do me a couple of dots or something I’ll have everything I owe at 12.30’. In a different exchange J Borg asked, ‘Ey can you tick me up’ to which the applicant responded, ‘I got nothing’. In another exchange, J Borg asked ‘Hey cuz are you able to T me up a halfa? – Half b, 1750?’
(c) A contact ‘B --- Muscat’ asked, ‘have.0 got mls’. The applicant replied ‘yeah nine for sale’. B --- Muscat then asked, ‘can you get a litre’. In a different exchange B --- Muscat said, ‘Alrifht just make it mls then xx. Same $100’.
(d) A contact ‘Juzzy’ asked, ‘Your not gona sell me some, I’ll be there in 5min I just wants 50ml, I haven’t had any all day, Im leaving tash n nath now’. The applicant replied, ‘I have 10ml between me n Tegan dumb cunt, I don’t have drinks to give away, I don’t even have 10ml’.
(e) A contact ‘Kiel’ asked, ‘Mls?’. The applicant replied ‘Nah bro none’. In another message Kiel asked ‘any luck with drinks?’.
(f) A contact ‘Todd the Frog’ asked, ‘Yo u still got drinks??’. The applicant replied ‘Not alot’.
On 16 April 2021 police executed a search warrant at the 2 Evans Court, Darley premises. Two residents, Denene Edwards and Jessica Hutcheon were present. Police located a total of 28.61 grams of methylamphetamine and $1,750 cash in the bedroom of Edwards.
Call charge records show that Mason made six telephone calls and sent one text message to Edwards between 8.24pm on 15 April and 12.32am on 16 April. The last call was about 30 minutes before police observed the white utility parked in front of the premises in Evans Court.
A search of 2 Evans Court, Darley had previously been conducted on 11 December 2020. During that search the mobile telephone of Edwards was seized. It contained a text message from the applicant to ‘Ben’ stating that the price for a ‘bag’ of methylamphetamine was $10,500 to $11,000. The prosecution argue that a ‘bag’ is one ounce or 28 grams.
The prosecution case is that Mason entered the Evans Court house to sell at least a ‘bag’ of methylamphetamine in exchange for the power tools and $9,635 cash, the latter which he gave to the applicant to conceal when police arrived.
At the time of the alleged offending the applicant was on bail for the charge of contravening a Community Corrections Order (‘CCO’), to appear at the Sunshine Magistrates’ Court on 22 April 2021.
Legal Considerations
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[2] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]The applicant is accused of committing a Schedule 1 offence, namely trafficking a drug of dependence – commercial quantity.
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning is well known. 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. The test is stringent, but not impossible to meet. And the circumstances, although considered by themselves to be unexceptional, may combine to produce exceptional circumstances.
If exceptional circumstances are shown satisfactorily, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[3]
[3]The Act, s 4E(3).
I am to apply and interpret the Act having regard to the guiding principles delineated in s 1B(1).
Applicant’s personal circumstances
The applicant is 28 years of age. She has two sisters. The siblings were raised by their mother. The applicant’s father has played no meaningful role in her life. At the age of 21 years she was the victim of family violence by a former partner.
The applicant completed schooling to the level of year eight. She commenced but did not complete a hairdressing apprenticeship. She has worked in receptionist and hire controller roles.
The applicant has good physical health. She suffers from anxiety and depression.[4] The applicant has struggled with drug addiction for most of her adult life. She has experienced extended periods of homelessness. At the time of the alleged offending the applicant was residing with her mother and then boyfriend in Caroline Springs.
[4]No evidentiary material was tendered as to this issue.
Applicant’s criminal history
The applicant has a criminal history including prior convictions or findings of guilt for offences including possession of drugs of dependence (methylamphetamine, GHB, ecstasy and amphetamines), contravention of CCO, fail to answer bail, commit an indictable offence whilst on bail, burglary, theft, threat to inflict serious injury, obtain property by deception, handle stolen goods, state false name and driving offences.
Applicant’s family violence history
At the time of the alleged offending there were no extant Family Violence Intervention Orders (‘FVIOs’) to which the applicant was the respondent. In each of 2014 and 2020 she was the respondent to a FVIO in which her mother was the affected family member. The incidents leading to both FVIOs involved verbal altercations.
Applicant’s materials and contentions
The applicant relies upon the affidavit of Mr Adrian Lewin, solicitor, affirmed 22 November 2021 and the viva voce evidence of her mother, Ms Elizabeth Allen.
A number of grounds are argued to produce exceptional circumstances that justify the grant of bail.
First, the applicant has been offered a residential rehabilitation placement at Odyssey House Victoria (‘Odyssey House’). A letter from Mr Edward Thomas, Alcohol and Other Drug Therapist, confirmed this offer.
Second, it is submitted that there are triable issues in the prosecution case in so far as it relates to trafficking. Those issues, concerning evidence of an intention to traffick and knowledge of the amount of drugs, prevent, it was argued, any possible resolution of the charges. This submission is different from that originally submitted by the applicant which was that there are reasonable prospects of acquittal for some, if not all of the charges. In that respect the applicant had previously foreshadowed an argument that the legality of the s 82 DPCSA search – and therefore the admissibility of any evidence obtained pursuant to it – would be in issue in the trial.
Third, the likely delay of about two years between arrest and trial.
Fourth, the onerous conditions of remand due to COVID-19 restrictions. To this extent, the applicant argues that the applicant has not had any physical visits from her family during her time in custody. The evidence of Ms Allen is that she has had ‘Zoom’ visits with her daughter and that in-person visits are about to recommence.
Fifth, it is submitted that the period the applicant has spent on remand has been the longest period in custody that she has experienced. It has provided her with a period of detoxification and reflection as well as being a salutary reminder of the importance of bail compliance. Further, the applicant has used that period to engage with treatment for substance abuse. She has produced clean urinalysis screens since 6 October 2021.
Sixth, the applicant’s mother has offered a surety in the amount of $5,000.
Regarding the risk of the s 4E(1)(a) factors, the applicant submits that bail conditions are sufficient to ameliorate any risk to an acceptable level, including residence at Odyssey House. The applicant submitted that any residential condition subsequent to Odyssey House, specifically one that required the applicant to reside with her mother, was not part of the present application.
Respondent’s Material and Contentions
The respondent relies upon the affidavit of Ms Caitlin Michelle O’Loughlin, a solicitor with the Office of Public Prosecutions, sworn 30 November 2021 and a supplementary affidavit of Ms O’Loughlin sworn 15 December 2021 and the viva voce evidence of the informant, Senior Constable Valentin Tudor.
Annexed to the first affidavit of Ms O’Loughlin is a report by the informant, the contents of which were adopted in evidence. In it, the following is noted.
First, the applicant has admitted to being a habitual ice user and to having used ice earlier on the day on which she was arrested.
Second, the applicant has had nine separate contacts with Odyssey House between 2016 and 2021, including counselling, bridging support and intake assessment. Most of these contacts have been non-residential. During this period the applicant has offended, including with respect to drug offences. On 3 May 2018 the applicant was sentenced to a CCO with a condition to attend a residential rehabilitation program at Odyssey House in Melton. She failed to attend and was removed from the program.
Further, Odyssey House is not a secure facility and if the applicant chose to abscond, the informant would only be notified after the fact.
Third, to the extent that the proposed bail address following the Odyssey House program might be the applicant’s mother’s address, this was the applicant’s address at the time of the alleged offending. Whilst the applicant’s former boyfriend, Jason Millman, no longer resides there, he moved out in July 2021 only to increase the applicant’s chances of being admitted to bail. Mr Millman has a very extensive criminal history. The informant expressed concern that there is nothing preventing the applicant associating with him or him moving back into the applicant’s mother’s house. The applicant’s mother told police on 22 November 2021, and confirmed in evidence, that the applicant was no longer in a relationship with Millman.
As to risk, the informant notes the applicant’s poor history of compliance with previous grants of bail and her extensive criminal history. It is submitted that the applicant poses an unacceptable risk to the community and of offending whilst on bail.
Consideration
Having considered all of the circumstances of this case, I am not satisfied that there are exceptional circumstances that justify the grant of bail to the applicant.
The applicant has referred to authorities in which the fact and quality of residential drug rehabilitation programs have been critical to a finding of exceptional circumstances. While the availability of a placement at a residential drug rehabilitation program can, alone or in combination with other factors, sometimes meet the requisite statutory threshold, each case must turn on its own facts. In this case, the applicant has previously been resistant to multiple community based rehabilitation attempts and, specifically, failed to engage at all in a court sponsored rehabilitation program at Odyssey House. She has unsuccessfully attempted the Court Integrated Services Program (‘CISP’) three times.
While the applicant has participated well in the drug and alcohol program offered by Caraniche Pty Ltd at the Dame Phyllis Frost Centre and has, since 6 October 2021, returned negative urinalysis results, given her history that alone is insufficient to persuade me that exceptional circumstances exist.
Nor am I satisfied of that fact when the issue is considered in combination with the other circumstances. While there will be a delay in the hearing of the applicant’s trial, that delay will not be inordinate and, it was not (and nor could it be) submitted that the delay would be such that, in the event that the applicant is found guilty of the more serious charges, the period of remand would exceed the length of the likely sentence received.
Moreover, the prosecution case cannot be said to be a weak one. The applicant was found in a car with the co-accused outside a known drug house at one o’clock in the morning. She disavowed all knowledge of the drugs found on Mason to police while at the same time secreting $9,635 in her underwear and 9.7 grams of methylamphetamine upon her person. That 9.7 grams was split between five zip lock bags in the following amounts: zero point five; one point eight; one point four; three point eight and two point two grams. A further two empty zip lock bags were recovered from the toilet bowl. And, the messages recovered from the telephone of the applicant, which date from 13 to 15 April 2021 – that is immediately prior to her arrest – are consistent with drug trafficking. The informant gave evidence that in the 15 April 2021 message ‘a q key’ is likely to mean a quarter kilogram and ‘26’ is likely to mean $26,000. In the earlier messages, ‘tick halfa g’ is likely to mean that ‘J Borg’ wanted half a gram of drugs prior to payment and ‘drinks’ is likely to equate with GHB. It would be open for a reasonable jury to so conclude.
While I accept that measures necessary to protect the prison population and correctional staff from COVID-19 have made the experience of custody more onerous for the applicant than would have been the case had there not been a pandemic, the applicant has been able to maintain contact with her mother and has had the benefit of both rehabilitative and educative programs.
The applicant submitted that the absence of drug trafficking from her prior criminal history is relevant to the demonstration of exceptional circumstances. The criminal history of the applicant is nonetheless significant in terms of other drug-related offending and poor compliance with bail and other court orders.
On the basis of the evidence given I accept that the applicant’s mother would honour her undertaking to notify the informant in the event that she became aware that any condition of bail had been breached and also that the amount of the surety offered is a significant sum for her. In short, Ms Allen impressed me as a loving and concerned mother willing to help and hopeful that her daughter will find a way to beat the pernicious drug habit that has gripped her since the age of 20. However, when one synthesises all the circumstances relevant in the case, they do not combine to produce exceptional circumstances that justify the grant of bail.
In the event that I had been persuaded otherwise, I would also refuse bail on the basis that the respondent has established that, if the applicant were to be released on bail, there would be an unacceptable risk that she would endanger the safety or welfare of any person, commit an offence while on bail and fail to surrender into custody in accordance with the conditions of bail.
The applicant’s prior history of bail compliance is extremely poor, as is her history of compliance with CCOs. She has three convictions for committing an indictable offence while on bail, two convictions for failing to answer bail and five convictions for contravening a CCO. And, the applicant was on bail for a charge of contravening a CCO at the time of the alleged offending. Further, the overall nature of her prior convictions and her previous inability to complete community based drug rehabilitation are such that her risk to the community is tangible. I am not satisfied that there are any conditions that I could impose on a grant of bail which would make the applicant’s risks, as identified, acceptable.
Conclusion
The application for bail is refused.
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