Re Jensen
[2022] VSC 365
•28 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0153
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an application for bail by DANIELLE JENSEN |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2022 |
DATE OF JUDGMENT: | 28 June 2022 |
CASE MAY BE CITED AS: | Re Jensen |
MEDIUM NEUTRAL CITATION: | [2022] VSC 365 |
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CRIMINAL LAW – Bail – Applicant charged with drug offences – Whether compelling reason exists that justifies the grant of bail – Whether applicant an unacceptable risk of endangering the safety and welfare of any person or committing an offence whilst on bail – Bail granted – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Marcs | Galbally Parker Lawyers |
| For the Respondent | Ms J Gleeson | Victoria Police |
HER HONOUR:
The applicant is charged with trafficking in a drug of dependence (32 charges), possession of a drug of dependence (10 charges), fail to comply with an order to provide access to a device seized under warrant and dealing with property suspected of being proceeds of crime. She has been in custody since 4 May 2022.
By a Notice of intention to make an application for bail filed 6 June 2022, the applicant applies for bail.
On 22 June 2022 I granted the applicant bail subject to the conditions detailed in paragraph 50 below indicating that I would later publish my reasons for so doing. These are those reasons.
Summary of allegations
The applicant is known by the name ‘Ellie’. At the time of the alleged offending, she resided with her partner and co-accused, Guy Kennish, at an address in Camberwell.
Prior to the applicant’s arrest on 3 May 2022, police had identified messages on the phones of multiple persons arrested in unrelated drug matters showing monthly menus from ‘Ellie in Camberwell’ referencing ‘Cold in the East’ and listing various illicit and prescription drugs with corresponding prices.
On 3 May 2022 police attended the Camberwell address of the applicant and Kennish to execute a search warrant. The applicant was located inside the address. Kennish was found walking out of a laneway at the rear of the property. They were both arrested. The following items were seized during the search:
· $3,250 in cash.
· A book with ‘Ellie’ printed on the front cover and containing notes and tick lists pertaining to drug use and trafficking, including amounts owed by customers.
· Various illicit drugs, including 2.73 grams of methylamphetamine,[1] one litre of GHB, 140 grams of hashish and unspecified amounts of amphetamine (MDMA) and cannabis.
[1]It was subsequently determined by police that 1.85 grams belonged to Kennish.
· Various prescription medications.
· Various drug paraphernalia including vials, deal bags, plungers and receptacles.
· A note stating ‘Raid is incoming. Police are onto you.’
The applicant was found in possession of three phones. She provided the passcodes for two. On those phones police found various messages (sent to apparent customers and alluding to trafficking activity), encrypted applications, photos of illicit drugs and also a draft ‘menu’ in the notes section. The latter referred to ‘Ellie’ and ‘Cold in the East’. It listed both illicit and prescription drugs as well as paraphernalia with prices, weekly specials, options for pick up or delivery for a proximity based cost, trading hours and a money-back guarantee policy.
The applicant claimed that the third phone belonged to a friend. The third phone repeatedly rang in police presence. Police believed it belonged to the applicant but she refused to provide access to it. The applicant used the third phone to speak with her solicitor. At that point police gained access to it briefly – by taking it from her – before it went into sleep mode. They were unable to log into encrypted applications due to password protection.
While at the property, police were told by Kennish about a storage unit at Kennards Storage in Ivanhoe. Police made enquiries with the manager of that facility, who said that the unit had been hired under the applicant’s name and address. The associated phone number was the same as that depicted on the ‘menu’.
Later that evening police executed a search warrant at the storage unit and found various prescription drugs (including one bottle prescribed in the name of a third person) and twenty empty boxes of various prescription medication.
The applicant gave a no comment record of interview. She did not provide police with any evidence of prescriptions for any of the medications located.
From analysis of the tick lists and drug menus, police estimate the sum of $200,000 is owed to the applicant. The total value of the substances seized from the applicant’s address and the storage unit is approximately $27,820.
Procedural history
The applicant was charged and remanded in custody on 4 May 2022. She was refused bail in the Ringwood Magistrates’ Court on the same day. The matter was adjourned for mention to 10 June 2022. On that date the matter was further adjourned for mention to 14 July 2022.
Kennish, who was charged with possess methylamphetamine and storing unauthorised explosives without approval, was granted police bail on 4 May 2022.
Applicant’s personal circumstances
The applicant is now 41 years of age. She has no criminal history.
The applicant’s upbringing was difficult. Her parents struggled financially. Her father was violent to both her mother and younger sister. The applicant was sexually abused by her father between the ages of 8 and 14. She disclosed the abuse to her mother following the separation of her parents. The matter was reported to police, but the applicant was dissuaded by police from pursuing the matter. The applicant subsequently developed an eating disorder which led to irritable bowel syndrome and chronic constipation. The applicant also began using drugs.
At the age of about 15 years, the applicant left school and moved in with an older partner after her mother ceased paying rent and the family was evicted from public housing. The applicant took up sex work at age 18 to fund her drug habit. In about 2007 she was called to a job and then detained overnight and raped by a group of drunk males.
In 2010 her partner was imprisoned for child sex offences. The applicant became homeless. She eventually lived with her mother and became sober. The applicant thereafter maintained full-time employment for a period of eight and a half years and lived in her own rental property.
The applicant met Kennish on an online dating platform. Through him she was reintroduced to drugs. She resigned from her employment in late 2020 after attending work in a drug-affected state. She has since been unemployed and in receipt of Centrelink benefits.
Legal considerations
The applicant is charged with Schedule 2 offences.[2] Bail must be refused unless the Court is satisfied that she has demonstrated a compelling reason exists to justify the grant of bail.[3] In making this determination, the Court must have regard to the surrounding circumstances,[4] including the matters listed in s 3AAA of the Act.
[2]Bail Act 1977 (‘Act’), Schedule 2, item 24(b).
[3]Act, ss 4AA(3), 4C(1A) and 4C(2).
[4]Act, s 4C(3).
As summarised by the Court of Appeal in Rodgers v The Queen,[5] the principles to be applied when considering the compelling reason test are threefold. First, for an applicant for bail to demonstrate a compelling reason, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified. Second, it is not necessary that the demonstrated reason is irresistible or exceptional. Third, a compelling reason is one which is forceful and therefore convincing; a reason that is difficult to resist.
[5][2019] VSCA 214, [43].
If the Court is satisfied that the applicant has demonstrated the existence of a compelling reason justifying the grant of bail, bail must still be refused if the Court is satisfied by the respondent that the applicant poses an unacceptable risk of any of the s 4E(1) factors and that such a risk cannot be moderated by conditions of bail.[6] Again, in making this determination, the Court must have regard to the surrounding circumstances.[7]
[6]Act, ss 4C(4), 4D and 4E.
[7]Act, s 4E(3).
Finally, in interpreting and applying the Act, the Court is required to have regard to the guiding principles set out in s 1B.
Applicant’s contentions
The applicant relies upon a combination of factors to demonstrate the existence of a compelling reason.
First, it is argued that the allegations are a typical, albeit not insignificant, example of the type of offending charged. That submission is made notwithstanding acknowledgment of the significant number of charges, the polysubstance nature of the allegations and the duration of the alleged offending as evidenced by the tick list book. It is accepted by the informant that a significant number of the charges in their current form are invalid.
Second, while the prima face case for trafficking is accepted, it is argued that the strength of the prosecution case cannot be assessed in the absence of the full brief of evidence. The absence of witness statements (other than that of the informant) and forensic analysis, of both the phone and drugs, is highlighted. The role and extent of involvement of Kennish in the drug enterprise is questioned given his awareness of drugs of dependence being stored at the Camberwell address. Limited amounts of drugs were found at both premises.
Third, the applicant enjoys the support of her sister, Dianne Foulton. Mrs Foulton offers the applicant the opportunity to reside with her, her husband and children in the event that the applicant is granted bail.
Fourth, it is argued that the applicant’s health issues make her particularly vulnerable in custody. A letter of Dr Nirosha Athukorala dated 31 May 2022 was tendered. Dr Athukorala is a general practitioner at the medical centre attended by the applicant since 2014. It details the applicant’s history of chronic lower back pain and neck pain, anxiety/depression, left knee pain as well as chronic headache and sinusitis. A radiological report of a scan taken on 29 March 2022 confirms the presence of a splinter in the applicant’s left foot which requires surgical removal. It is submitted that such removal cannot occur whilst she is in custody. The inability of appropriate in-custody treatment for bowel issues, a haemorrhoid and severe thrush is also argued.
Fifth, the applicant proposes to receive treatment for her drug and mental health issues. The applicant relies upon a letter dated 17 June 2022 from the Court Integrated Services Program (‘CISP’) Remand Outreach Program which assessed her for case management by the Ringwood CISP team. In the event bail is granted, she will be referred to the Australian Community Support Organisation for a comprehensive alcohol and drugs assessment. The CISP report noted that in the months leading to her arrest, the applicant was using about one gram of methylamphetamine and 20 to 30 millilitres of GHB per day. The CISP report also noted the applicant’s ongoing issues with anxiety and depression and her engagement with WestCASA in custody. A letter from WestCASA dated 20 June 2022 confirmed the applicant’s eligibility for trauma-informed counselling in the community.
It is to be noted that in the event that recommendation for CISP management was not made, the applicant intended to undertake private drug treatment through Lamberti and Associates, funded by Mrs Foulton.
Sixth, the applicant argues that although she does not have an offer of employment, she had established a fledgling cleaning business prior to her remand. Its business name, ‘Cleans4U’ was registered the day before her arrest. The applicant intends to pursue that business.
Seventh, the applicant submits that due to the backlog in the Magistrates’ Court consequent upon the pandemic, the matter may not be resolved for up to two years. Whilst acknowledging that a period of imprisonment may be imposed in the event of a finding of guilt, it is argued that such disposition is not inevitable in light of the applicant’s age and lack of prior history. It is further submitted that the applicant may be a suitable candidate for Drug Court and that a community correction order (‘CCO’) may be an appropriate sentencing disposition. In the event that a sentence of imprisonment was imposed, it is argued that the period on remand ‘could possibly’ exceed the likely sentence.
As to the risk of endangering the welfare of any person or committing an offence while on bail, the applicant argues that there is no evidence that appropriate bail conditions could not manage any alleged risk. To this end, conditions including a static residence, curfew, reporting and limitations on phone possession and use are proposed.
Respondent’s contentions
The respondent argues that the applicant has failed to demonstrate the existence of a compelling reason that justifies the grant of bail.
In response to the argument regarding the strength of the prosecution case, the respondent notes that the brief was provided to the applicant’s former solicitor on 4 May 2022 and to her current solicitor on 21 May 2022. While the brief does not contain any forensic drug analysis, such analysis would only be taken in the event that the applicant indicated she would contest the charges.
As to the proposal that the applicant reside with her sister, the respondent argues that such an arrangement would create an unsafe environment for Mrs Foulton’s children given the drug milieu in which the applicant is said to have participated.
As to the issue of delay, the respondent states that the applicant has not requested any witness statements and forensic analysis of the seized devices is impossible in the absence of the applicant providing the relevant passwords.
At the hearing of the application, counsel for the respondent indicated that Victoria Police were currently considering whether the matter should ultimately be heard on indictment rather than in the summary stream of the Magistrates’ Court. It was conceded that, if so, that was a factor relevant to the issue of delay.
Turning to the issue of unacceptable risk, the respondent argues that the applicant is an unacceptable risk of endangering the safety or welfare of any person given the significant amount of money owing to her from her trafficking activities and the real possibility that there is a large quantity of drugs connected to the applicant’s operation that have not been located by police.
The respondent further argues that the applicant is an unacceptable risk of committing an offence while on bail. The scale of the drug trafficking business, the quantum of drug debt owed to the applicant coupled with her ongoing need for money as well as the belief by police that many drugs under the control of the applicant were not located during the searches are said to combine to produce a motivation to offend.
Analysis
In my view, the applicant has demonstrated, through the combination of factors identified, the existence of a compelling reason that justifies the grant of bail.
The charges against the applicant are serious. The prima facie case for trafficking is obvious, irrespective of the number or form of the charges. However, the allegations are of trafficking simpliciter and the penalty for charges that relate to scheduled poisons is limited to a fine. Further, cross examination of the informant at the hearing of the application revealed a number of deficiencies in the charges, the evidence and in the compilation of the brief of evidence.
It follows that although a sentence of imprisonment is within the range of appropriate penalties in the event of a finding of guilt of the charges (if they remain in the current number and form – or something very similar), such a sentence is unlikely to be numbered in years. That is because of the applicant’s lack of prior convictions, her age and the matters personal to her background. Other sentencing dispositions are also reasonably open.
However, given the evidence of the informant at the hearing of the application, it seems unlikely that the number and form of the charges is sustainable. The issue of delay therefore has some role to play. The sensible resolution of the matter was agitated at the hearing of the application. While that is a possibility relevant to the likely delay, I accept given the deficiencies identified with the prosecution brief, that in the event bail was refused, the period of remand would likely exceed any sentence of imprisonment ultimately imposed.
The availability of the supports offered under CISP management are also significant. The applicant has never before had the opportunity to address her drug and mental health issues in a structured and supported manner. The support of her sister and wider family is also notable.
Mrs Foulton gave evidence at the hearing of the application. She was an obviously honest witness. I do not doubt her desire to support the applicant. Mrs Foulton demonstrated great understanding of the nature of drug addiction and the signs of such addiction in her sister. Equally I do not doubt her evidence that drugs would not be tolerated in her home and, in the event that the applicant brought drugs into the home, Mrs Foulton would evict the applicant and notify police. Mrs Foulton’s willingness to support the applicant, by allowing her to live in her family’s home and otherwise providing for her financially and emotionally as needed is, therefore, a matter of importance.
So too is my view that the applicant does not pose an unacceptable risk of endangering the safety or welfare of any person or of committing an offence while on bail. She has sufficient supports, structures and motivation that any risk she poses in these regards can be rendered acceptable by the imposition of bail conditions.
It follows that the continued detention of the applicant is not justified.
My reasons for finding that the respondent has failed to demonstrate that the applicant poses an unacceptable risk include her lack of prior criminal history (and, therefore, the absence of any bail offences), the support offered by CISP and the support – including financial support – offered by her sister.
Conclusion
The applicant is admitted to bail on her own undertaking, to appear at the Melbourne Magistrates’ Court on 14 July 2022, with the following conditions:
(a) Reside at 106 Belmont Road East, Croydon South (‘the bail address’);
(b) Notify the informant of any proposed change to the bail address at least 24 hours in advance of such change;
(c) Not leave the bail address between the hours of 10.00pm and 6.00am (‘the curfew hours’) unless directed to do so by a staff member of the Court Integrated Services Program (‘CISP’) or a member of Victoria Police;
(d) Present at the front door of the bail address at any time between the curfew hours when requested to do so by a member of Victoria Police;
(e) Report each Monday, Wednesday and Friday to the Officer in Charge (or his or her nominee) at Croydon Police Station between the hours of 8.00am and 8.00pm;
(f) Not contact any witness for the prosecution except the informant;
(g) Comply with all lawful directions and recommendations of CISP staff whilst engaging in treatment and attend all appointments recommended by CISP staff;
(h) Not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act;
(i) Possess only one mobile phone or internet capable device;
(j) Provide the informant with the telephone number, IMEI details and SIM card details for the mobile phone or internet capable device referred to in condition (i) within four hours of obtaining the phone or device;
(k) Produce to a member of Victoria Police for inspection the mobile phone or internet capable device referred to in condition (i) immediately upon request and provide any passwords, PIN codes and/or other assistance to access the phone or device;
(l) Not download, access or use any encrypted messaging application or platform on any mobile phone or internet capable device;
(m) Surrender passports (if any) to the informant within 24 hours of release, and not apply for any other passport;
(n) Not attend any points of international departure; and
(o) Not leave the State of Victoria without first obtaining the leave of a court.
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