Re Goodwin
[2021] VSC 504
•13 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0209
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by DYLAN GOODWIN |
---
JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 August 2021 |
DATE OF JUDGMENT: | 13 August 2021 |
CASE MAY BE CITED AS: | Re Goodwin |
MEDIUM NEUTRAL CITATION: | [2021] VSC 504 |
---
CRIMINAL LAW – Application for bail – Trafficking in a drug of dependence – Committing an indictable offence whilst on bail – Compelling reason made out – No unacceptable risk – Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Portelli | James Dowsley & Associates |
| For the Respondent | Mr A. Singh | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
Dylan Goodwin (‘the applicant’) was arrested and remanded on 30 July 2021 on five charges of trafficking in a drug of dependence, five charges of possessing a drug of dependence, one charge of negligently dealing with the proceeds of crime and one charge of committing an indictable offence whilst on bail (‘the informant Trantor matters’). On 13 August 2021 the matters can before me as an application for bail. I granted the application and indicated that I would provide reasons. These are those reasons.
The charges arise from the execution of a search warrant at the house of the applicant’s co-accused on 30 July 2021; the applicant was present at the premises. At the time of the alleged offending, the applicant was on bail for charges of theft of a motor vehicle, two charges of possessing a drug of dependence, one charge of possessing a controlled weapon, one charge of possessing a registered long arm firearm and one charge of possessing cartridge and ammunition (‘the informant Lightbody matters’). Those charges arise from events on 22 May 2021 when a vehicle in which the applicant was a passenger was intercepted and searched by police. Bail in those matters was revoked on 5 August 2021.
For completion, at the time of this alleged offending, the applicant was also on summons for a charge of failing to stop a vehicle on police request, using an unregistered motor vehicle, unlicensed driving and breaching the Chief Health Officer’s directions after he was intercepted while driving an unregistered motorcycle in Pakenham on 18 July 2020.
The alleged offending
The informant Lightbody matters, as I have already indicated, relate to the applicant being apprehended whilst a passenger in a vehicle being driven by Michel Yazbek, his co-accused, who was driving a stolen van in Dandenong South when intercepted by the police. The applicant and the co-accused exited the vehicle while a search was undertaken by police. The handle of the rear sliding door to the van was missing and the door locked, which led to police only searching the front part of the vehicle.
During the course of the search, the police located a plastic plunger in the centre console of the dashboard which contained a clear liquid alleged to be 1,4-Butanediol. Police also found a satchel bag with a small Ziploc bag inside it with a crystal-like substance believed to be methylamphetamine as well as a flick knife. It is not entirely clear as to how it is put that the bag was the property of the applicant rather than the co-accused, having been found in the centre of the front seat of the vehicle. The applicant and the co-accused were arrested and transported to Dandenong police station.
The applicant made a no comment record of interview and both he and the co-accused were released on bail. On 2 June 2021, after the vehicle had been returned to the owner, an associate of the owner located the missing handle of the rear sliding door and reattached it. Upon reopening the rear door, the associate observed the metal drawer behind the front seats. She opened the drawer and observed what she believed to be a firearm inside a canvas shopping bag. The associate contacted police and they attended the premises and took custody of those items. The applicant was subsequently charged in relation to those matters. I have been informed that the items have been submitted for DNA analysis and it is likely that if those results are negative that, those particular charges will not be proceeded with against the applicant.
In relation to the Informant Trantor matters, at 8.15 on 30 July 2021 a search warrant was executed at the residence of Tiree Orrick, the co-accused. The applicant was present at the time. During the course of the search, police located and seized the following items: 150 ml of 1,4-Butanediol located in part on a coffee table in the lounge room; 50 ml in part inside the bedhead of the main bedroom; 100 ml, 1000 Subox and strips located in the television cabinet in the lounge room; 200 stanozolol steroid tablets located inside the bedhead of the main bedroom; 18 grams of methylamphetamine located in various areas in the residence including the lounge room, main bedroom and garage; $1,135 cash located in part behind the couch in the lounge room ($1,000) and in part in a handbag in the lounge room ($135); scales located behind the couch in the lounge room; tick books and bank statements in an unspecified name said to show large transactions; a note of instructions on how to deliver drugs via drones and a wallet containing identification in the applicant’s name located behind a couch in the lounge room. So there is a connection between the items behind the couch to the applicant, namely the $1,000 and the scales.
The applicant and the co-accused were arrested and at that stage remanded in custody. The co-accused was released on bail on 1 August 2021.
The applicable legislation
The applicant was charged with a Schedule 2 offence within the remaining s 3 of the Bail Act 1977 (‘the Act’), that is, trafficking in a drug of dependence and committing an indictable offence whilst on bail. Bail must therefore be refused unless the applicant satisfies the court that compelling reasons exist that justify the grant of bail.[1]
[1]The Act, ss 4AA(3), 4C(1)-(2).
I am obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act. Compelling reasons has been considered authoritatively within this Court on a number of reasons, but as most significantly covered in Rodgers v The Queen[2] in the Court of Appeal, where the guiding principles are set out as follows.
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant's detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[3]
[2][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[3]Ibid, [43].
As I have already indicated, I am satisfied, for reasons that I will state later in these reasons, that compelling reasons have been made out. That is not however, the end of the matter. If I am satisfied of the existence of compelling reason I must apply the unacceptable risk test. That is, I am obliged to consider whether having regard to the surrounding circumstances the respondent has established that the applicant poses an unacceptable risk of the matters set out in s 4E(1)(a) of the Act.[4] The Court must further consider whether there are any conditions of bail, which may be imposed to mitigate any risk that is not unacceptable.[5]
[4]Ibid s 4E.
[5]Ibid s 4A(3).
The applicant
The applicant is 26 years old. He was raised as the only child by his parents who currently reside in Cranbourne. He left school in Year 10 and spent periods working for his father’s furniture removal business, although he was unemployed for approximately six months prior to his remand. The applicant reports a history of drug use commencing at the age of 15 after introduction to cannabis and later methylamphetamine. He has previously sought treatment in both day setting and residential rehabilitation setting. He reports succeeding at recovery for a period of 18 months before relapsing in the context of his friends and past addiction sponsor passing away from a drug overdose.
The applicant would, if admitted to bail, be admitted to the Habitat Therapeutics private hospital in Newcomb. The applicant has a limited criminal history confined to two dispositions in 2019. First, on 3 July 2019 and he was convicted of failing an oral fluid test within three hours of driving, unlicensed driving, theft, failing to answer bail, possessing methylamphetamine and two charges of using an unregistered motor vehicle.
The charges of using an unregistered motor vehicle were discharged, and the applicant was sentenced to a 12 month community correction order for the balance of the offences. On 25 October 2019 the applicant was convicted and discharged on a single charge of carrying a prohibited weapon without exemption or approval. The applicant appears to have successfully completed the community correction order on which he had been released.
The applicant’s submissions
Briefly, the applicant submits that there are a number of weaknesses in the prosecution case. That the applicant’s criminal history is limited and although he has got one prior conviction for failing to answer bail he has generally been compliant with court orders made. It was also put that the current period of remand represents the first time that the applicant has been in custody. The applicant has the strong support of his parents, although at the time of the alleged offending he was living transiently between friends’ homes. Significantly, the applicant also has the availability of treatment and I heard evidence from Mr David Forbes, the director of Habitat Therapeutics Private Hospital, that a place was available for the applicant and that it would be likely that the he would remain at Habitat for the next 90 days.
Also put in support of the applicant were the matters of delay and likely sentence. It is likely that if the matters were to be fully contested that there is not much likelihood of the matters proceeding until at least the earliest part of 2022, and it is likely given the applicant’s history that if he were to receive any custodial sentence it would be less than any time to be served. It is trite but nonetheless important to say that because of the COVID-19 pandemic, the courts have accepted that conditions for those in custody are more severe than they might otherwise be, and that has been regarded by a number of judges of this Court as being one of the matters to be taken into account in either the assessment of exceptional circumstances or compelling reason.
I concluded that in relation to the question of strength of the prosecution case, the criminal history of the applicant, family support, the availability of treatment, delay, the likely sentence that the applicant might receive and the onerous conditions whilst in custody were sufficient to make out compelling reasons. That then led to the consideration of unacceptable risk.
The respondent’s submissions
In relation to the question of the unacceptable risk, the respondent had submitted that the nature and seriousness of the alleged offending was significant, that there were matters to be put that supported the prosecution case. It was, however, frankly admitted by Mr Singh, who appeared on behalf of the respondent, that there were at the same time some weaknesses in the Crown case and that these matters might in the fullness of time resolve.
It was also noted on behalf of the respondent that the applicant had a criminal history which included relevant offences of carrying a prohibited weapon and possession of methylamphetamine. But more significantly that at the time of the alleged offending in the informant Trantor matter, the applicant was on bail in the informant Lightbody matters subject to a condition that he reside at his parents’ house in Cranbourne, and it appears on his own admission that he was not residing at that address. It was also noted that the applicant has a prior conviction for failing to answer bail.
It was further submitted that when a proper analysis was completed of the applicant’s history and the nature of these two lots of offending, they supported the proposition that he is an unacceptable risk. Mr Singh on behalf of the respondent accepted that the admission to a residential facility was a powerful consideration, but noted that the applicant had done that previously. Although it had worked in the short term it had not been finally satisfactory and these matters were committed, notwithstanding the fact that the applicant had had the opportunity of a residential treatment facility and had at that time successfully completed it.
It was further put by Mr Portelli, who appeared on behalf of the applicant, that I could keep that matter under review by fixing the matter for judicial monitoring at a date close to when it would be anticipated that the applicant would be released back into the community.
Ruling
Having considered all the matters put, I am satisfied that although it is plain that there are risks in relation to the applicant, the well-known risks identified and known in the community associated with people who have drug addictions, I am satisfied that with the imposition of the appropriate conditions that those risks can be rendered not unacceptable. That is not the same as saying they would be acceptable, because they are not and the risks continue to exist.
The Court is satisfied that compelling reasons are made out that justify the grant of bail and it has not been shown that the applicant is an unacceptable risk for the reasons outlined. It is noted that Mr David Forbes, director of Habitat Therapeutics Private Hospital, gave an undertaking to the Court to report any breach of bail that occurred at Habitat Therapeutics Private Hospital.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
(a) He attend the Frankston Magistrates’ Court on 31 August 2021 and then surrender himself and must not depart without the leave of the Court. And if leave is given, return at the time specified by the Court and again surrender himself into custody. That is the standard condition that covers the extension of any bail.
(b) He reside at Habitat Therapeutics Private Hospital, Newcomb in Victoria, and not change that address without the leave of the Court.
(c) He remain at those hours between the premises of 9.00pm and 6.00am each day for the duration of bail except when in the company of a representative of Habitat Therapeutics Private Hospital.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He abstain from the consumption of any alcohol or any drug of dependence in the meaning of the Drugs, Poisons and Controlled Substances Act without lawful authorisation under that Act.
(f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(g) He comply with all lawful directions of any staff member of Habitat Therapeutics Private Hospital and attend all appointments directed by that service.
(h) He not contact directly or indirectly the co-accused, being Tiree Orrock and Michel Yazbez for the duration of the bail period.
(i) He not contact directly or indirectly any witness for the prosecution except the informant.
(j) Not to leave the State of Victoria.
(k) He reappear before this Court for judicial monitoring to review his compliance with this order at 9.30am on 29 October 2021.
0
0
0