Re Good

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0082

IN THE MATTER of the Bail Act 1977

- and -

IN THE MATTER of an Application for Bail by STUART GOOD

BETWEEN:

STUART GOOD	Applicant
- and -
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June & 21 July 2023
DATE OF JUDGMENT:	2 August 2023
DATE OF REASONS:	2 August 2023
CASE MAY BE CITED AS:	Re Good
MEDIUM NEUTRAL CITATION:	[2023] VSC 449

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CRIMINAL LAW — Application for bail — Charges of trafficking a large commercial quantity of methylamphetamine, trafficking a commercial quantity of heroin, possession of a traffickable quantity of firearms, other drug charges, dealing with proceeds of crime — BailSafe support and private residential rehabilitation available — Surety — Evidence of drug addiction — Use of false identity and possession of false documents — GPS tracking proposed — Exceptional circumstances not shown — Unacceptable risk established — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	D Dann KC	Burn City Legal
For the Respondent	T Crouch	Office of Public Prosecutions

HIS HONOUR:

Introduction

This is an application for bail by Stuart Good [‘the applicant’]. He is charged by Senior Constable Matt Reynolds with 41 offences [‘the Reynolds matters’], namely:

(a) trafficking a large commercial quantity of methylamphetamine;

(b) trafficking in a commercial quantity of methylamphetamine;

(c) trafficking a commercial quantity of heroin;

(d) trafficking a commercial quantity of 1,4 Butanediol;[1]
[1]No section of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is provided for this charge.

(e) possession of a traffickable quantity of firearms;

(f) trafficking methylamphetamine;

(g) trafficking heroin;

(h) trafficking 1,4 Butanediol;[2]
[2]No section of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) is provided for this charge.

(i) being a prohibited person in possession of a firearm (four charges);

(j) negligently dealing with proceeds of crime (six charges);

(k) possession of methylamphetamine (two charges);

(l) possession of heroin (two charges);

(m) possession of 1,4 Butanediol (two charges);

(n) possession of cannabis;

(o) making a false document;

(p) possession of cartridge ammunition;

(q) possession of a prohibited weapon (five charges);

(r) dealing with suspected proceeds of crime;

(s) possession of anabolic steroids;

(t) possession of diazepam;

(u) possession of alprazolam;

(v) possession of naltrexone;

(w) possession of a prohibited weapon;

(x) possession of ecstasy;

(y) making a false document; and

(z) handling stolen goods.

Procedural history

On 16 January 2023, the applicant was charged in the Reynolds matters and remanded in custody.

On 27 January 2023, the applicant was refused bail in the Melbourne Magistrates’ Court on the basis that he posed an unacceptable risk of committing an offence while on bail or endangering the safety or welfare of any person.

On 24 February 2023, the applicant was granted bail in the Melbourne Magistrates’ Court on conditions that he be released into the care of a residential rehabilitation facility known as Hills and Ranges Private [‘Hills and Ranges’] and comply with all lawful directions of that facility.

On 1 March 2023, staff from Hills and Ranges advised the informant that the applicant would be discharged from the facility on the basis that he had asked for the mobile phones of other residents and had made inappropriate comments towards female employees. Although the incident was characterised as a “misunderstanding” that was partly attributable to situational stressors arising out of the applicant’s partner’s post‑natal depression, he was nevertheless discharged. That same day, the informant made an unopposed application to revoke the applicant’s bail in the Melbourne Magistrates’ Court, which was granted. The applicant was re‑remanded in custody. Self‑evidently, police regarded the circumstances as amounting to a breach of bail conditions warranting the making of an application for revocation.

On 21 March 2023, the applicant made a further application for bail in the Melbourne Magistrates’ Court which was refused on the basis that he failed to show exceptional circumstances, and that, if granted bail, he posed an unacceptable risk of committing an offence or endangering the safety or welfare of any person.

On 5 May 2023, the applicant made a further bail application in the Magistrates’ Court, which was again refused on the basis that exceptional circumstances had not been demonstrated and that he posed an unacceptable risk of committing an offence while on bail or endangering the safety or welfare of any person.

On 31 May 2023, the applicant filed a bail application in this court. The matter is next listed on 2 October 2023 in the Melbourne Magistrates’ Court for committal mention.

The prosecution case
Overview

The prosecution alleges that the applicant was the head of a large drug trafficking ring operating out of an apartment leased at [an address] in South Yarra [‘the South Yarra apartment’]. It is alleged that he leased the South Yarra apartment under the fraudulent identity of ‘Charlie Nguyen’ and used it as a safe‑house to conduct drug transactions. The applicant was arrested on 15 January 2023 while leaving the South Yarra apartment, following which searches of the apartment, a car used by the applicant, and the applicant’s home address, were conducted. Various items were seized, including firearms and large amounts of drugs and cash.

At the time of the alleged offending, the applicant was a prohibited person pursuant to section 3(1) of the Firearms Act1996 (Vic).

The alleged offending

On 13 July 2022, police commenced an investigation into drug trafficking activity in the Melbourne region. The applicant was the primary target of that investigation.

Exchanges with Thanh Vu

On 14 and 15 January 2023, the applicant attended the South Yarra apartment in a Jeep wagon [‘the Jeep’] twice with an associate, Thanh Vu, following which Vu left carrying a bag. Police allege that, on both occasions, the applicant trafficked drugs to Vu.

As Vu was leaving the South Yarra apartment on the evening of 15 January 2023, he was approached by police and searched. He was found to be in possession of one vacuum sealed bag of methylamphetamine, weighing approximately 146 grams, and another zip lock bag containing heroin of an unstated weight.

The applicant left the South Yarra apartment shortly after, at about 9:30pm, and was arrested. He was searched and found to be in possession of $990 in cash, a mobile phone, and a luxury watch. When asked, the applicant told investigators that there was a loaded gun in a bag inside the apartment.

Search of the South Yarra apartment

The applicant provided a set of keys to the South Yarra apartment and instructions on how to unlock the door. He also provided the codes for combination locks to his wardrobe and the number for a safe. The apartment was searched with the assistance of a detection dog and the following was found:

(a) various drug paraphernalia, such as scales, a calculator, scoops, elastic bands, cash counting machines, vacuum sealing machines and unused zip lock bags;

(b) a number of cameras;

(c) a Glock handgun;

(d) zip lock bags containing methylamphetamine, unknown substances and pills, green vegetable matter and heroin;

(e) a vacuum sealed bag containing 26 grams of cocaine;

(f) about $35,000 in cash;

(g) a vacuum sealed bag containing around 500 grams of methylamphetamine;

(h) various pieces of ammunition;

(i) a cannister containing 10.957 kgs of 1,4 Butanediol;

(j) a firearm holster, black baton and two tasers;

(k) five luxury watches; and,

(l) Medicare, drivers’ licence, and banking cards in the names of other people.

The applicant was asked to provide the password to his phone under section 465AAA(2) of the Crimes Act 1958 (Vic), which he did. His telephone was later analysed and reportedly contained messages and data indicative of the applicant’s involvement in a large-scale drug trafficking organisation.

Search of the Jeep

A preliminary search of the Jeep revealed a sophisticated hydraulic compartment within the boot. Police stopped the search and the car was taken to the Victoria Police Impound Yard for a full search, at which time the following items were identified:

(a) a sawn‑off rifle with the serial number removed;

(b) various firearm parts, accessories, and ammunition;

(c) a silver .25 calibre handgun;

(d) three THC strip packets;

(e) eight pieces of gold bullion;

(f) prescription documents;

(g) 360 grams of 1,4 Butanediol;

(h) bank cards, drivers’ licenses and health cards in the names of other people;

(i) a knuckle duster;

(j) two luxury watches and other valuable items; and

(k) drug paraphernalia, including a digital set of scales, a large amount of unused zip lock bags and a clear plastic scoop. The zip lock bags and scoops resembled those found at the South Yarra address.

Within a compartment in the boot of the Jeep, police also found 10 packages of vacuum sealed cash which, when counted, totalled $210,600.

Search of the applicant’s home address

At 11:45pm on 15 January 2023, the applicant’s home address in Brunswick West was searched. The applicant’s partner and her son were present at the time. The following items were found:

(a) $3,285 in cash;

(b) five bank cheques;

(c) two bottles of anabolic steroids;

(d) zip lock bags containing green vegetable matter, methylamphetamine and heroin;

(e) 29 ecstasy tablets;

(f) two glass vials containing an unknown substance;

(g) two bottles containing 1,4 Butanediol;

(h) boxes of various prescription medication; and,

(i) a capsicum spray cannister.

Arrest and interview

The applicant was arrested and taken to Prahran Police Station in the early hours of 16 January 2023. He provided a no‑comment record of interview and was charged and remanded in custody.

The applicable legislation

When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[3] Section 1B provides:
[3]Bail Act 1977 (Vic), s 1B(2).

(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.

(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

The parties agree that, in order to be granted bail, the applicant is required to satisfy the court that exceptional circumstances exist that justify the grant of bail. This is on the basis that the applicant is accused of multiple Schedule 1 offences (including, for instance, trafficking in a large commercial quantity of a drug of dependence).[4] In considering whether exceptional circumstances exist that justify the grant of bail, the court must take into account all of the relevant surrounding circumstances, including those set out in section 3AAA of the Act.[5]
[4]Ibid ss 4AA(1), 4A(1)–(2), sch 1, item 6(a).
[5]Ibid s 4A(3).

If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[6] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such a risk is an unacceptable one.[7] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[8]
[6]Ibid ss 4A(4), 4D(1)(a).
[7]Ibid s 4E(1)–(2).
[8]Ibid s 4E(3).

The applicant relies on a combination of circumstances to satisfy the exceptional circumstances test. It is well understood that he is entitled to do so. It is also well understood that whilst one factor alone might not satisfy the test, a combination of a number of factors may act together for the court to reach a state of satisfaction.

The applicant’s personal circumstances

The applicant is a 35‑year‑old man said to have a long‑standing drug addiction. According to material relied upon in this application:

(a) the applicant has two children, one of whom is from a previous relationship and the second of whom was born recently to the applicant’s current partner;

(b) the applicant attended Northcote Primary School and completed Year 12 at Northcote High School;

(c) at around the age of 11, the applicant began using cannabis and MDMA;

(d) at around the age of 14, the applicant’s father died and, struggling with grief, the applicant was introduced to drugs by older people — using them as a way to cope. This began with methylamphetamine and then heroin. By the age of 18, the applicant was fully addicted to heroin;

(e) the applicant completed an apprenticeship as a chef, and subsequently worked at a number of restaurants in Melbourne;

(f) the applicant managed a two‑year period of abstinence from drugs from around 25 years old, before relapsing. Following the birth of his child, the applicant again ceased using drugs for 18 months, however, he relapsed once more. He has made use of Benzodiazepine medication to help manage withdrawals when trying to cease using drugs on three occasions but, despite this, recently relapsed again; and

(g) prior to his arrest, the applicant was using about four grams of Xanax, a gram of methylamphetamine, three and a half grams of heroin and 10‑20 mls of 1,4 Butanediol per day.

The applicant has struggled with anxiety for “as long as he can remember” along with depression, but these conditions have never been medicated. He reports that his mental health has been exacerbated by being on remand but that, should he be granted bail, he will discuss taking anti‑depressant medication with his doctor.

Criminal history

The applicant has the following criminal history:

(a) September 2015 — the applicant was fined $1,000 in the Moorabbin Magistrates’ Court for possessing a drug of dependence (five charges) and dealing with suspected proceeds of crime.

(b) November 2018 — the applicant was sentenced to six months’ imprisonment and a 12‑month community corrections order [‘CCO’] in the Heidelberg Magistrates’ Court for offences of dealing with suspected proceeds of crime; possessing a distress signal; committing an indictable offence while on bail (three charges); possessing cartridge ammunition; possessing explosive substance; negligently dealing with proceeds of crime; possessing a false document; possessing a traffickable quantity of firearms; and possessing a drug of dependence (two charges).

(c) January 2020 — the applicant was fined $1,000 in the Seymour Magistrates’ Court for offences of unlicensed driving; careless driving; possessing a drug of dependence (two charges); and using a drug of dependence (two charges).

The applicant’s contentions

The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.

Strength of the prosecution case

The applicant submits that there are weaknesses in the prosecution case.

It is submitted that the Jeep was a rental car and that he did not have exclusive possession of it. The applicant also submits that, at this stage, there is no evidence in the hand‑up brief from the registered owner of the vehicle.

While the applicant concedes that he made admissions to possessing a loaded handgun at the time of his arrest, he denies being aware of any of the items located at the South Yarra apartment or in the Jeep — noting he gave a full no‑comment interview.

As to the firearms charges, the applicant submitted at the hearing that a number of the items found were “inoperable”, an assertion that has been put to the informant and is the focus of ongoing discussion between the parties. There was some disagreement at the hearing about which firearms were functional and which were not, based on the opinions of a ballistics expert in a report the court was not provided with. One firearm seized appears to have been a replica.

The applicant submits that, while CCTV from the South Yarra apartment building appears to show him and Mr Vu leaving the same building, it does not capture any alleged offending within the apartment.

Relatedly, the applicant highlighted at the hearing that there is a “disconnect” between the way the informant’s report has put the alleged offending and the way it is put in the hand‑up brief. The applicant submits that he is charged with offending relating to a single day, not across a period of time, as against the informant’s characterisation of the applicant as operating an ongoing and organised drug trafficking operation.

Criminal history

The applicant’s criminal history is described as “relevant but limited”. The applicant’s prior matters are described as drug‑related, insofar as the offending arose from the applicant’s addiction to heroin following his father’s death, and it is noted that he has no history of trafficking drugs. It was submitted that the applicant has served one period of imprisonment for approximately six months but has otherwise been dealt with by way of fines.

Family circumstances and proposed residence in the community

The applicant notes that his partner, AN, has recently given birth to their son and is suffering from feelings of post‑natal depression and anxiety. An undated letter from provisional psychologist Michiel Glas indicates that Mr Glas met with AN on 11 April 2023, at which time she reported anxiety since childhood, exacerbated by the applicant’s incarceration. Mr Glas noted further that AN was on a waitlist to see a clinical psychologist.

If granted bail, the applicant proposes to commence residential treatment at Hills and Ranges, a privately conducted rehabilitation facility. According to a report provided by BailSafe Australia [‘BailSafe’], a private bail support service, the applicant proposes to live with his mother and partner at an address in Northcote following completion of the program at Hills and Ranges. These persons did not give evidence at the hearing.

At the subsequent hearing of this matter on 21 July 2023, the court was informed by the applicant’s counsel that AN has recently been charged with some drug‑related offences. She was allegedly in close vicinity of another gentleman at Port Phillip Prison and they were intercepted in a vehicle together, where small amounts of heroin and Suboxone were found. It was submitted that this is not particularly relevant in circumstances where the applicant has not been charged, it is not proposed that the applicant live with his partner in the short term, and the issue of proposed residence in the community can be revisited at a later time (and potentially the subject of an additional, and separate, bail application).

In the circumstances, it was entirely proper that the court was informed about this matter. In the event, I have not taken the matter into account in an adverse way against the applicant, and I will ignore it.

Employment

The applicant completed a four‑year apprenticeship as a chef after high school and reportedly went on to work at “high end” restaurants such as Ezard and Movida. The applicant originally submitted that he had employment available to him at Imbue Food and Wine in Footscray, should he be granted bail, and relied on a letter from the owner of that establishment, Phong Nguyen, dated 23 January 2023, to that effect. The court sought updated evidence from the applicant regarding his employment and was informed that the applicant no longer has this employment opportunity available to him.

Special vulnerability

The applicant relies on two letters from Amanda Brown of Lamberti Associates, a firm of rehabilitation consultants. The first letter is misdated as “223 November 2023” and the other dated 2 May 2023. The former letter states that the applicant has struggled with mental health issues — including anxiety and depression — since his early teens.

The applicant also has a long‑standing poly‑substance drug addiction. Since the age of 14, he has been using a variety of drugs including methylamphetamine and heroin. He has been addicted to heroin, with limited periods of abstinence since he was 18. Initially, while in custody, the applicant was given Benzodiazepine and Paracetamol to assist with withdrawals. He explained to Lamberti Associates that this was not sufficient and that his symptoms were so severe that he was vomiting, had diarrhoea, hot and cold sweats, restless legs, anxiety and was not able to eat or sleep for some time following his arrest.

Since then, the applicant has reportedly been prescribed drug‑replacement medication whilst in custody and this has minimised his cravings. It is noted that the letter from Amanda Brown of Lamberti Associates dated 2 May 2023 indicates that the medication prescribed was Suboxone, but conversely refers to the applicant losing privileges in custody due to urine screens testing positive for Suboxone. The applicant has also been prescribed an anti‑depressant, Avanza, that is helping him sleep as well as manage his anxiety and depression.

In a subsequent affidavit provided to the court dated 17 July 2023, documentation was provided which discusses the applicant’s medical history. In particular, a letter from consultant psychologist Ian McKinnon confirms that a psychological assessment of the applicant was conducted on 6 July 2023. Mr McKinnon’s opinion is that the applicant has ADHD and substance use disorder.

Further, the medical documentation provided, which is summarised by Mr McKinnon, indicates that the applicant has a history of prescriptions for medications and treatment including:

(a) treatment with Suboxone during 2010;

(b) AOD rehabilitation with Amanda Brown during 2018; and

(c) treatment with a Naltrexone implant in 2019.

A letter from Dr Swee Onn Chan confirms that he has been treating the applicant since 2006, including with Suboxone pharmacotherapy for opioid dependency and with referrals to other treatment services. He states in his letter that the applicant has been “tireless in his efforts to stop abusing drugs and had been successful reigning in his addiction by going on to the substitution program with Suboxone since 2010”.

A letter dated 20 July 2023 from Rita Cauchi, an AOD counsellor from ‘Uniting’, was also placed before the court. Ms Cauchi states that the applicant engaged throughout 2019 with Uniting for treatment to manage his heroin and methylamphetamine use. The applicant reportedly engaged in 10 counselling sessions with another counsellor, and two with Ms Cauchi, following which he entered the residential treatment withdrawal facility. After this he chose not to continue treatment through Uniting as his CCO had expired.

Availability of treatment or bail support services

If granted bail, the applicant proposes to return to Hills and Ranges to address his drug addiction through residential treatment. A letter provided from Hills and Ranges CEO, Edward Handley, dated 17 May 2023 refers to the circumstances in which the applicant was discharged from the facility on 1 March 2023, noting that a number of factors contributed to the decision to discharge being made:

One of these main reasons such action was taken was due to the fact that I was overseas and therefore could not be contacted in a timely manner. Moreover, these events took place of an evening and the support staff on duty took the action to call the police as a precautionary measure which resulted in an immediate exit. I would like to state clearly that none of those [sic] were a breach of [the applicant’s] bail conditions. [The applicant] did not get access to a mobile phone and did not breach his bail conditions in any other area.

Mr Handley opines that a “stern realignment conversation” with the applicant regarding boundaries would have been preferable to discharge, but that in any event the applicant is welcome to return to Hills and Ranges. A bed is available for him at the Mount Dandenong site, should he be granted bail. Mr Handley concludes by saying:

[The applicant] has shown a great amount of remorse and in our recent conversations demonstrated a change in his outlook on the program and is wholeheartedly willing to fully commit to the rehabilitation treatment, taking into consideration the birth of his first baby and the ability to learn to be a present father and a partner.

Mr Handley also gave evidence to the court. He stated that re‑entry into the program would require the applicant to demonstrate a change in attitude. He provided some context about the incident that resulted in the applicant’s exit from the program on the last occasion. Mr Handley confirmed in cross‑examination that the applicant requested a worker perform a sex act upon him whilst at Hills and Ranges, and also touched her leg on numerous occasions. The worker is no longer employed at Hills and Ranges, but “not by her choice”, according to Mr Handley.

He indicated that addressing the applicant’s substance abuse issues through clinical treatment, cognitive behavioural therapy, dialectical behavioural therapy, and trauma informed psychology, would assist the applicant. Mr Handley stated that drug testing could occur daily at Hills and Ranges if desired, and if there were any positive results, the informant would be immediately notified. It is proposed that the applicant would spend one month at the Hills and Ranges facility. Being a private facility, Mr Handley confirmed the applicant would need to pay an out‑of‑pocket cost of $15,000.

Following completion of the program at Hills and Ranges, the applicant proposes to engage with BailSafe, which is self‑described as:[9]

an outpatient treatment and monitoring program for adults on bail or seeking bail who require support and rehabilitation for substance use, addiction, mental health, and medical care. The program aims to reduce the likelihood of people re‑offending by providing patients access integrated care to address the physical and mental health illnesses that directly contribute to anti‑social behavior [sic].

[9]See: type="1">

According to a report provided by BailSafe, the applicant was assessed by telephone consultation on 19 April 2023 and determined to be suitable for participation in a BailSafe 24‑week outpatient treatment program. This would involve the applicant attending online appointments twice‑weekly, undergoing twice‑weekly supervised urine drug screens, being subject to GPS tracking, and receiving general support from a case manager, general practitioner, psychologist and social worker.

Jackson Oppy, a director at BailSafe, also gave evidence to the court. He stated that BailSafe is a treatment service for addiction and mental health issues, designed specifically for men and women who are on bail or are seeking bail. BailSafe has been operational since August 2022. Mr Oppy provided a treatment plan for the applicant, marrying in with the Hills and Ranges program. This plan would involve:

(a) BailSafe providing a GPS monitoring device whilst the applicant is at the Hills and Ranges facility, and afterwards;

(b) twice‑weekly urine drug screens whilst at the Hills and Ranges facility;

(c) monitoring via a video check app called ‘VCheck’, which requires a video check‑in at curfew, which can be accessed by the informant; and

(d) a program that includes group therapy, counselling, attendance at self‑help groups, and case management. Four therapeutic appointments would occur each week. Every therapeutic appointment is via telehealth.

As mentioned, it is proposed that the applicant would undertake a 24‑week program through BailSafe, following the month‑long period at Hills and Ranges. Mr Oppy confirmed in evidence that BailSafe has protocols requiring that the informant be notified if there is a known breach of bail or a positive drug screen is returned.

The applicant submits generally that he has shown a capacity to engage with services during his time on remand, with reference to his completion of a substance awareness program while in custody.

Delay

The applicant has been in custody since his remand on 16 January 2023, and notes that there have been some delays in the provision of disclosure material which resulted in two previous committal mentions (listed in April and June 2023) being adjourned. The matter is next listed for committal mention on 2 October 2023.

At hearing, the applicant shed further light on this factor, submitting that these committal mentions have been adjourned because of the need for forensic and DNA testing, to the effect that the applicant will have been in custody for approximately 10 months by the October committal mention date. It was further submitted that there would likely be a delay of two‑to‑three years from when the applicant first entered custody until the date of his trial. The applicant referred to the case of Roberts[10] in submitting that such a delay constitutes an exceptional circumstance.
[10]Roberts v The Queen [2021] VSCA 28 (Maxwell P, Niall and Emerton JJA).

Surety

The applicant’s mother, Linda Good, has offered a surety of up to $1,000,000 in equity in property. Ms Good did not give evidence in relation to the surety.

Unacceptable risk

Turning to the question of unacceptable risk, the applicant contends that he does not pose an unacceptable risk within the meaning of section 4E(1)(a) of the Act.

The applicant submits that the risk of the applicant offending is “objectively negligible” and that any notional risk can be reduced by requiring the applicant to comply with the Hills and Ranges and BailSafe programs. It is submitted that the applicant’s “limited” (non‑violent) criminal history is also relevant to the question of risk.

It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including that the applicant:

(a) reside at the Mount Dandenong Hills and Ranges Residential Rehabilitation facility;

(b) follow all lawful directions of staff at Hills and Ranges;

(c) comply with the BailSafe program monitoring;

(d) not leave the Hills and Ranges facility;

(e) not associate with any co-accused;

(f) not contact witnesses, other than the informant;

(g) surrender his passport and not to apply for any other;

(h) not attend points of international departure; and

(i) provide a surety to the court in the amount of (up to) $1,000,000.

The respondent’s contentions

The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the court that exceptional circumstances exist. Further, even if exceptional circumstances were to be established, the respondent submits that the applicant — if granted bail — poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence and failing to surrender into custody in accordance with conditions of bail.

In response to the applicant’s contentions, the respondent relies on the following matters.

Strength of the prosecution case

The respondent essentially characterises this matter as a large commercial drug trafficking enterprise, involving large amounts of illicit drugs, firearms, cash, and bullion, which the applicant is said to have been running. Over half a kilogram of pure methylamphetamine was found at the applicant’s premises, that being more than a large commercial quantity. The maximum penalty that attaches to such an offence is life imprisonment.

The respondent submitted that the prosecution case is generally strong, in that there is surveillance connecting the applicant to the South Yarra apartment, and various items found in both the applicant’s car and residential address. There is also telephone evidence and text messages that appear to point to the organisation of drug deals. The informant’s report includes a spreadsheet or ‘tick sheet’ of debts owed to the applicant for what is alleged to be drugs.

The respondent submits that the Jeep used by the applicant was not a rental but is, in fact, owned by a friend of the applicant’s — Nicholas Koutrigaros. Mr Koutrigaros has stated that he moved to Carlton in 2020 and allowed the applicant to use the car during this time as he no longer needed it.

In response to the applicant’s submission that he was unaware of the things found at the South Yarra apartment or in the Jeep, the respondent submits that this is implausible as the applicant:

(a) had possession of the keys to the South Yarra apartment;

(b) gave officers instructions on how to open the door;

(c) had drugs and a gun stored at the South Yarra apartment inside a grey bag, something he can be seen carrying on CCTV prior to his arrest;

(d) provided police with the codes to a locked wardrobe where 1,4 Butanediol was found; and

(e) gave details to police on how to open the boot of the Jeep.

Delay

With respect to delay, it is conceded that there has been some delay as a result of two outstanding reports, and that the matter, if it was to proceed to a trial, would likely not finalise until late 2024 or early 2025. Nevertheless, the respondent contends the applicant could be facing a significant custodial sentence of potentially greater than 10 years’ imprisonment if he is convicted of the offences.

Bail compliance history

The respondent notes that the applicant’s criminal history includes three convictions for committing an indictable offence whilst on bail.

Availability of treatment or bail support services

The respondent submits that the applicant’s proposed residential rehabilitation program causes concern, as he has previously been removed from the Hills and Ranges clinic within four days of his arrival. It is submitted that, in that instance, the applicant displayed a “clear disregard” for the discretion of the court and that accordingly this is not a suitable environment for him to once more be bailed to.

The respondent notes that the letter from Mr Handley suggests that the incidents at Hills and Ranges should have been dealt with by a senior member of staff. The respondent submits that the incidents in question were, in fact, dealt with by a senior staff member, namely the facility manager. This leads the respondent to have concerns that the clinic’s employees do not have the autonomy to make decisions, protect staff members, other clients or their reputation more generally.

Similarly, the respondent submits that the report of Mr Handley does not acknowledge the seriousness of the applicant’s behaviour. While it is conceded that the applicant did not gain access to a mobile phone, the respondent submits that he did ask other residents to leave their phone on a table with their access code and not to tell the staff. During the cross‑examination of Mr Handley, the respondent highlighted that Mr Handley considered an attempt to access a mobile phone to be a relatively minor infraction but had stated that it would be dealt with “severely”, though it would not necessarily be regarded as a breach of bail conditions and reported to police.

The respondent also cross‑examined Mr Handley regarding security at Hills and Ranges. Mr Handley stated that it is not a facility that is designed to physically prevent people from leaving, and that someone could plausibly just leave the facility.

In short, the respondent submitted that less weight should be given to the utility of Hills and Ranges, in circumstances where the applicant has previously been discharged from the facility. A similar submission was made in relation to BailSafe, along with concerns that the GPS device proposed to be installed is not always reliable, suffers from ‘dropouts’, and could not be said to work reliably in the Dandenong Ranges region.

Surety

The respondent submits that the applicant’s relationship to the surety, his mother, is strained. Police have previously applied for a family violence intervention order [‘FVIO’] against the applicant, which nominated Ms Good as the protected person. This followed a dispute in which the applicant allegedly threatened his mother by text message. Ms Good went to the Northcote Police Station and reported the incident at the time, and the police applied for the FVIO. It has since been struck out.

Unacceptable risk
Endangering the safety and welfare of any person

The respondent submits that the applicant has been charged with trafficking a large amount of drugs into the community, something which puts the public at risk of “drug‑fuelled” offending.

Similarly, the respondent notes that the applicant has been charged with firearm‑related offences. Should the applicant access more guns, the respondent submits that this would constitute a risk to the community as he may use those weapons, potentially while drug‑affected.

The respondent argues that, given the money and items seized, the applicant was committing offences in order to fund a lavish lifestyle.

The respondent accepted that the applicant appears to have a long‑standing drug addiction but submitted that the evidence before this court does not establish that this addiction has driven the applicant’s alleged offending. Instead, it was put that there is a level of organisation demonstrated, and the applicant has maintained successful employment as a chef throughout long periods of life without his addiction interfering. It was therefore submitted that the rehabilitation program proposed would not address the underlying cause or motivation behind his alleged offending, and therefore, sufficiently ameliorate any risk.

Committing an offence whilst on bail and failing to surrender into custody in accordance with the conditions of bail

The respondent notes the applicant has prior convictions for committing indictable offences while on bail for offences related to firearms. The respondent notes that the applicant was previously charged with possessing a traffickable quantity of firearms but could not provide any detail surrounding this matter.

Further, it is submitted that the applicant was found in possession of sophisticated false identification documents bearing his photograph. The respondent submits that, should the applicant acquire more documents like these, this would facilitate further offending and potentially assist him to abscond from the jurisdiction. Whilst there is no evidence of pre‑planning in terms of flight, or presence of a false passport, the respondent submitted that the applicant has the means to obtain such documents and has access to large amounts of cash.

Analysis and conclusions
Introduction

As noted above, because the applicant has been charged with a Schedule 1 offence, he bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail.

If he succeeds in doing so, the onus then falls on the prosecution to satisfy the court that:

(a) there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and

(b) the risk is an unacceptable risk, that cannot be mitigated by the imposition of any bail conditions.

In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.

With these factors in mind, I turn to considering the merits of the application.

Has the applicant shown that exceptional circumstances exist?

To begin, I note the revocation and later refusals of bail that occurred in the Magistrates’ Court. I make it clear that the determination of this application does not rest on whether or not the Magistrate, or Magistrates, acted in error in the proceedings in the lower court. The role of this court is to consider the application afresh, which I have done.

The applicant has pointed to a number of circumstances, as he is entitled to do, in submitting that the exceptional circumstances threshold has been met in this case. Having considered these circumstances, I make a number of observations and conclusions in determining this application.

Nature and seriousness of the allegations

The charges are unquestionably very serious in that they relate to the trafficking of large amounts of illicit drugs, and the possession of multiple firearms, the latter in a traffickable quantity. Notably, it is alleged the applicant trafficked a large commercial quantity of methylamphetamine. Considered in combination, the allegations against the applicant also involve trafficking and/or possession of multiple kinds of drugs, and allegations of proceeds of crime offences.

Furthermore, the applicant is alleged to have conducted his trafficking arrangements from an apartment rented in a false name, appearing to be specifically arranged for his activities. Rather than describing it as a ‘safe‑house’, it might be more appropriately described as a dedicated ‘business premises’. Moreover, the applicant did not utilise a motor vehicle in his own name and is alleged to have been in possession of a number of false identity documents. In sum, it is alleged the applicant conducted a sophisticated and well‑organised drug‑trafficking operation.

The allegations suggest the applicant was carrying out a business that involved the supply of large amounts of drugs to those that would then on‑sell, and thereby distribute, smaller quantities more widely into the community. These allegations, in combination with the applicant’s prohibition from possessing firearms, contribute to a conclusion the alleged offending is very serious indeed. It was submitted on the applicant’s behalf that his “limited” non‑violent criminal history is relevant to the assessment of risk. In my view, the initial attractiveness of this submission must be qualified by the applicant’s possession and access to a constellation of serious weapons which, in the context of his alleged drug‑trafficking activities, suggests the preparedness to use the firearms he is alleged to possess — in other words, including a preparedness to engage in violence, or at the very least physical intimidation. Furthermore, he is alleged to have been in possession of a firearm silencer, and a number of firearm parts.

Nature and strength of the prosecution case, delay and possible sentence

Whilst it is too early, and indeed not the role of this court, to form firm conclusions about the strength of the prosecution case, it does not appear to me to be a weak case, or one that is foredoomed to fail. On the other hand, in my opinion it is a case that is reasonably strong, given a number of circumstances, including the evidence of the applicant’s association with the South Yarra apartment, his apparent occupation of the apartment in a false name, his knowledge of entry arrangements to the premises, his knowledge of the code to a secure wardrobe and a safe, the assembled evidence of drugs and drug‑paraphernalia being present in the apartment and in bags, a notebook and telephone content alleged to evidence past drug transactions, and a number of other items located secretly in the motor vehicle being driven by the applicant. I also note an alleged admission to the presence of a firearm in a bag located in the apartment before the police conducted a search.

In my opinion, should the applicant be found guilty of the most serious aspects of the alleged offending, he almost inevitably faces the prospect of a lengthy term of imprisonment. Whilst the applicant has pointed to authority suggesting that a delay of two to three years may, on its own, constitute an exceptional circumstance, this circumstance must be considered in the context of other relevant factors, such as the seriousness of the allegations and the likely time to be spent in custody upon conviction. In any event, although the delay will inevitably be lengthy, I am not convinced that it will reach the extent of three years from the applicant’s arrest before these matters are finally resolved. If convicted, the applicant is likely to be sentenced to a period of imprisonment that well outlasts any such delay.

It is also worth noting that while the alleged offending presently pleads a charge encompassing a single day of activity, in my opinion this is a somewhat artificial way to look at this case. There must be a realistic possibility this will change as the matter progresses in light of a substantial amount of background evidence suggesting the applicant’s alleged offending extends more broadly than the activities of a single day. In my view, although a single day is currently charged, a realistic assessment of the breadth of the evidence placed before this court, at this point, must amount to relevant surrounding circumstances that can and should be taken into account under the provisions of the Act when considering both the exceptional circumstances test and the unacceptable risk test.

Bail support proposals

In the context of pointing to the potential delay until these matters are finalised, the applicant relies on the availability of support through the facility at Hills and Ranges, and BailSafe. The applicant contends he has a need for rehabilitation and treatment, given his history of opioid and other drug addiction. He also relies on the availability of stable accommodation with his mother.

The court’s attention was drawn to the following passage in the case of Robinson,[11] and in particular the following paragraph:[12]

The bail conditions proposed on behalf of the applicant were quite exceptional. It is most unusual for a grant of bail to be conditional on the applicant remaining resident in a supervised treatment facility and participating in drug rehabilitation. Not only does such a condition severely restrict the person’s freedom of movement and association but — on the positive side — it means that the pre‑trial period can be used constructively to tackle the person’s drug addiction. In this case, as in so many others like it, R’s drug addiction is central to his offending behaviour. Obviously enough, the potential benefits of an intensive residential program such as this far outweigh anything which would be available to R if he remained in custody. [emphasis added]

[11]Robinson v The Queen (2015) 47 VR 226 (Maxwell P and Redlich JA, Priest JA concurring).

[12]Ibid 204, [50] (Maxwell P and Redlich JA).

The applicant referred to the case of Akoka,[13] in a similar vein, to submit that there is a community interest in someone awaiting trial undergoing rehabilitation, be it outpatient or inpatient. I note, in passing, that Akoka related to treatment at Odyssey House, a well‑established and highly sought after intensive rehabilitation facility.
[13]Akoka v The Queen [2017] VSCA 214 (Warren CJ, Kyrou and Redlich JJA).

It can be accepted that the evidence suggests the applicant has had a difficult time breaking out of the cycle of drug addiction over the course of more than 10 years. It is to be acknowledged that the applicant has been diagnosed with ADHD and substance use disorder. Addressing his substance use problem is an important issue and it has been pointed out that the applicant has another chance to turn his life around through the rehabilitation program proposed.

In the face of his addiction, however, I remain unpersuaded that there is a realistic connection between the applicant’s addiction, and the carrying out of the alleged drug operation which he is alleged to have run. In this sense I am unconvinced that the evidence of his drug addiction can be said to be “central to his offending behaviour” as described in Robinson. The allegation is that he is the head of a well‑organised, and well‑planned drug‑trafficking syndicate. Furthermore, it is alleged his enterprise supports a luxurious lifestyle, in circumstances where he presently appears to have little other obvious legitimate income.

Furthermore, the court remains concerned about the circumstances in which the applicant was exited from the program at Hills and Ranges on the occasion he was bailed to that facility. The handling of the applicant’s exit from the program was troubling to say the least, and the applicant’s behaviour at the facility only adds to a lack of confidence that he will comply with any imposed conditions attached to a grant of bail.

At first blush it appears an attractive circumstance that a plan has been put in place with regard to the applicant’s proposed residence at Hills and Ranges, and subsequent engagement with BailSafe. On the other hand, the court remains concerned that Hills and Ranges is a recently established facility, and does not appear to have an established track record compared to other comparable rehabilitation facilities. Mr Handley was unable to speak to the statistics surrounding the facility’s success rate in treating drug addiction and mental health problems. Further, he stated that only around 12 people on bail have been through the program at the facility.

Similarly, I remain concerned that BailSafe cannot provide a level of supervision to the applicant that would render the circumstances exceptional, particularly given BailSafe is primarily an on‑line service. In this context I have considered the utility of a GPS device.

I note that it is proposed that, after completing these programs, the applicant would live with his mother, partner and child, born in February this year. I do not doubt the strength of their support for the applicant. Understandably, the applicant puts forward that he wishes to play a role in the child’s life. I also note the willingness of the applicant’s mother to provide a very substantial amount of surety, which would, ostensibly, deter the applicant from committing any further offences or committing any breaches of bail conditions that could be imposed. Whilst these may be significant factors, they must be weighed in light of the other competing factors put forward in assessing whether exceptional circumstances have been established.

The applicant has been given opportunities for rehabilitation before, specifically when he was granted bail by the Magistrates’ Court in February of this year. These opportunities have not been successful. Further, he was subject to a CCO in 2018 for a period of 12 months. Whilst it may be acknowledged that recovering from addiction is a non‑linear, and rarely straightforward process, I am not satisfied that the course that is proposed, along with the other factors that have been put forward by the applicant, are sufficient to establish that exceptional circumstances exist to justify a grant of bail.

Conclusion on exceptional circumstances

In all the circumstances I remain unpersuaded that the applicant has satisfied the exceptional circumstances test required to grant bail. Therefore, the application will be refused.

Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?

As the applicant has not satisfied me in regard to the first limb of the inquiry, bail must be refused. For completeness, however, I will indicate the following in relation to the second limb of the inquiry, regarding whether the respondent has satisfied the court that the applicant poses an unacceptable risk.

The question to ask is whether any of the risks set out in the Act could be made acceptable by the imposition of conditions. It is not a question of whether risk can be eliminated, but rather whether it can be reduced to an acceptable level.

On the one hand, the applicant appears to pose a degree of flight risk, given his proclivity for using aliases, having access to large amounts of cash and bullion, and his ability to acquire documents in false names. He appears to possess skills in the creation and use of false identities. On the other hand, with the imposition of a substantial surety, and without any evidence put forward that he might be inclined to take flight, this concern does not rise to such a level that it could not be ameliorated by the imposition of certain conditions of bail.

The above said, I do consider the applicant poses an unacceptable risk of committing further offences or endangering public safety if granted bail. I do not consider that sufficient conditions could be put in place to ameliorate the risk to an acceptable level. It should be noted that the applicant has prior convictions for committing an indictable offence while on bail. I accept the respondent’s submission that these risks are not likely to be ameliorated by the imposition of a treatment program through Hills and Ranges and BailSafe, given his drug addiction does not appear to me to have driven his alleged offending. Also, the court notes there are a number of similarities between the present allegations and the applicant’s convictions in 2015 and 2018. These convictions included charges dealing with suspected proceeds of crime, possessing ammunition, being in possession of a false document, and being in possession of a traffickable quantity of firearms. The applicant’s previous proven, and more recent alleged, possession of firearms is a particular aspect of concern in this matter when assessing the level of risk that attaches to him.

Accordingly, had I been satisfied the applicant had met the exceptional circumstances test, I nevertheless would have refused bail. I am of the opinion the respondent would have satisfied me that the applicant is an unacceptable risk of committing further offences or endangering public safety while on bail.

Conclusion

Accordingly, taking all matters into account and weighing them, the application will be refused.

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[2023] VSC 449

2 August 2023