Re Karisson
[2023] VSC 45
•13 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0327
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an application for bail by Andrew KARISSON
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2023 |
DATE OF JUDGMENT: | 13 February 2023 |
CASE MAY BE CITED AS: | Re Karisson |
MEDIUM NEUTRAL CITATION: | [2023] VSC 45 |
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CRIMINAL LAW – Bail – Forty-four-year-old applicant with extensive criminal history – Bail sought on eleven charges including two of trafficking a large commercial quantity of a drug of dependence – Revocation of earlier grant of bail due to re-offending and failing to comply with curfew and other conditions - Forfeiture of surety of $900,000 as a result of breaches – Prosecution case of reasonable strength – Trial listed to commence in 3½ months – Serious offending – Long term of imprisonment inevitable upon conviction – Family supports and substantial surety failed to ensure compliance in past – Exceptional circumstances not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Ristivojevic | Sarah Tricarico Lawyers |
| For the Respondent | Mr J Shaw with Ms N Grunwald | Abbey Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of 11 charges he faces which are contained on an indictment filed against him in the County Court. The charges include two charges of trafficking a large commercial quantity of a drug of dependence[1] (‘trafficking LCQ’) and lesser alternatives to those charges, as well as charges of handling stolen goods and knowingly dealing with the proceeds of crime. The trial of the applicant is listed to commence on 24 May 2023.
[1]Methylamphetamine (‘MA’) and ephedrine.
By virtue of the inclusion of the charges of trafficking LCQ and the alternatives of trafficking a commercial quantity in Schedule 1 to the Bail Act 1977 (‘the Act’), the applicant is in the position of needing to satisfy the Court that exceptional circumstances exist that justify the grant of bail before he can succeed in the application.
Procedural history and compliance with earlier grant of bail
The procedural history of this matter is lengthy and unfortunate, due in part to the delays introduced into the criminal justice system by the advent of the COVID-19 pandemic about a year after the applicant was charged, but also to his poor conduct in connection with a grant of bail which was eventually made to him.
The applicant was charged with these and other offences on 17 April 2019 and remanded in custody.[2] Bail was refused in the Magistrates’ Court on 4 June 2019. On 2 August 2019, bail was refused by Coghlan JA in this Court.[3] On 22 April 2020, bail was granted in the Magistrates’ Court by his Honour Magistrate Goldberg. There was a surety of $900,000 provided by the parents of the applicant, and stringent conditions including a curfew and a condition that the applicant not leave the residential address outside the curfew hours unless in the company of a parent.
[2]These charges were laid by Detective Senior Constable Oliver Sharp (‘Sharp indictable charges’).
[3]Re Karisson [2019] VSC 613.
On 23 January 2021, members of Victoria Police conducted a bail compliance check on the applicant. He was found to be absent from his home address during curfew hours and was charged accordingly. Bail was granted on those charges in the Magistrates’ Court on 4 March 2021 and a concurrent prosecution application to revoke his bail on the Sharp indictable charges was refused.
On the afternoon of 17 March 2021, the applicant went alone to the Sandbelt Hotel in Moorabbin. He damaged a poker machine by punching it before giving a false name to staff and leaving the premises. He was charged on summons with damaging the machine and contravening a conduct condition of bail.
On 12 April 2021, the applicant left his home address alone and was absent from the property between 9.38am and 3.18pm. During this time, his parents were observed coming and going from the home. He was later charged with this contravention of a conduct condition.
On 13 April 2021, the applicant again left his home address alone at 9.21am and met with two men who are convicted drug traffickers. The applicant is suspected of having conducting a drug transaction although he was not charged. His car was intercepted by police in Moorabbin and he threw away his car keys as officers approached. Located in the vehicle was a watch valued at approximately $17,500. He was arrested and charged by Detective Senior Constable Sharp with breaching a conduct condition.
Bail was revoked in the Magistrates’ Court on all matters on the unopposed application of the prosecution.
On 28 May 2021, the surety of $900,000 provided in support of the grant of bail on the Sharp indictable charges was forfeited.
On 2 June 2021, the applicant was committed to stand trial on the Sharp indictable charges in the County Court.
On 9 August 2022, the applicant was sentenced in the Magistrates’ Court to five months’ imprisonment on an unrelated matter of dealing with property suspected of being proceeds of crime.
On 29 August 2022, the applicant was sentenced in the Magistrates’ Court to 14 days’ imprisonment on charges of contravening a conduct condition of bail (4 charges), intentionally damaging property, committing an indictable offence on bail, and possessing a drug of dependence.
On 28 October 2022, the applicant applied for bail in the County Court. Following what I am told was a very brief hearing, bail was refused by Judge Allen.
There is an outstanding application listed in the Magistrates’ Court on 20 February 2023 to rescind the order for forfeiture of the surety made on 28 May 2021.
Summary of alleged offending
In June 2018, an investigation into drug-trafficking in Melbourne’s south-eastern suburbs commenced. On 17 April 2019 at 4:03am, a surveillance operative observed the applicant leaving his home address at 21 Kenjulie Drive, Bentleigh East, and approach an orange Holden utility parked outside. The ‘flashers’ on the utility flashed, and the applicant returned to the house. CCTV from the applicant’s address captured the incident.
At 4:59am police executed search warrants at the applicant’s address. The applicant was present at the time. No other residents were home. Upon execution of the warrant, the applicant was arrested and police found the following items:
· $10,000 cash (in the applicant’s pocket);
· Keys to 18/536 Clayton Road, Clayton South (in the applicant’s pocket);
· 2014 Red Ferrari, registration C29 (in the garage). The plates were registered to Daniel Simic, who does not know the applicant and has never owned the Ferrari.
· 2017 white Mercedes AMG sedan (in the driveway);
· Cash counters, vacuum sealing devices, scales and plastic bags (in the garage);
· Key to the orange Holden utility (in the garage).
Police then conducted a full search of the premises and found several items in the house, garage and inside the white Mercedes and the Ferrari. These include quantities of cash, tablets, white powder and crystal substance, driver licences belonging to Daniel Simic and Scott McIntyre (who believes his licence was stolen in 2018), several luxury handbags (from the bedroom) and keys to a 2016 Revival boat and trailer. Identification documents belonging to the applicant were found inside the Mercedes. Police also found items believed to be used for manufacturing methylamphetamine in the garage and recycling bin. Drug analysis of the substances found at the property determined them to be MDMA, MA and cocaine, in varying purities.
The following items were found in the orange Holden:
· Large green Bunnings bag with several large resealable bags inside containing white crystal substance (in passenger footwell);
· Receipt from Bunnings Oakleigh South from 17 March 2019 for 6 rolls of shrink wrap and a large green tote bag (behind front passenger seat);
· Black backpack with a large package of shrink-wrapped white crystal substance (behind front passenger seat); and
· Three resealable bags and plastic container containing white crystal substance (behind front passenger seat).
Drug analysis found the crystal substance in the Holden to be methylamphetamine. The applicant’s fingerprints were found on the external side door frame. Police also found that the factory identifying numbers on the engine had been tampered with and the vehicle’s transmission originally belonged to another vehicle, which was stolen from East Geelong in April 2018.
The applicant was interviewed and told police he had been driving the Mercedes but did not own it. He said the Ferrari belonged to Daniel Simic, who was a friend. He denied ownership of the Holden or any knowledge of why the keys were in the garage. The applicant admitted possessing the drugs in the garage, stating he was a user of MA. He told police he worked for JB Lighting earning $2000 per week, with his role being to ‘take care of stuff’ and ‘get orders in’.
CCTV footage from Bunnings in Oakleigh South on 17 March 2019 shows the applicant attending the store in a white Mercedes, purchasing shrink wrap and a tote bag, then leaving again in the Mercedes.
Surveillance from 16 March 2019 observed the applicant driving the red Ferrari to his parents’ address and moving items from the Ferrari into the orange Holden utility, which was parked in his parents’ driveway.
On 17 April 2019, search warrants were also executed at 5 Lacebark Court, Oakleigh South, where an associate of the applicant, Arthur Moutsidis (‘Moutsidis’), lived. Police seized a green plastic bag containing five shrink-wrapped packages of white crystal substance from under the floor of the property. Telephone intercepts of calls between the applicant and Moutsidis from 23 January 2019 to 18 April 2019 indicate that the applicant regularly attended that address. Further, DNA evidence from the packages indicates three contributors, the findings being 100 billion times more likely if the applicant was a contributor, but more likely if Moutsidis were not a contributor. Drug analysis determined the substance to be ephedrine, with a purity of 75% to 77%.
On 29 April 2019, police entered 18/536 Clayton Road, Clayton South (a warehouse also owned by the applicant’s company) using the key that was seized from the applicant at the time of his arrest. A search warrant was executed and a 2016 Revival boat and trailer (stolen from Leon Hennessy in 2018) were seized.
The total quantities of the drugs seized were as follows:
· Methylamphetamine (mixed) – 7.08491 kg
· MDMA (mixed) – 27.5 g
· Cocaine (mixed) – 17.4 g
· Ephedrine – 2.906 kg (3.8749 kg total, with a purity of 75%)
The large commercial quantities applicable to MA (mixed) and ephedrine (pure) are 750 g.[4]
[4]Drugs, Poisons and Controlled Substances Act 1981, s 70(1) ‘large commercial quantity’, Sch 11 Pt 3, columns 1A-1B.
The applicant was charged with handling stolen goods with respect to the driver licences, the boat and trailer, and the transmission in the Holden.[5] He was charged with knowingly dealing with proceeds of crime with respect to several luxury items seized by police.
[5]The handling charges on the indictment allege that the applicant ‘dishonestly undertook the retention of stolen goods’ without the inclusion of the requisite words ‘by or for the benefit of another’ if that is the form of handling intended. It seems that what is intended to be alleged is that the applicant was a receiver or otherwise a handler of stolen goods for his own benefit.
Personal circumstances
The applicant is 44 years old, and has three children (aged 14, 6 and 5) with his partner, Carly Galanos. He had a happy childhood and a close relationship with his parents. However, the applicant reports a troubled relationship with his brother who is said to be ostracised from the family.
The applicant had some attention difficulties in school, leaving in year 11. He went on to work in various roles including for a chemical company, a manufacturing company and a transport company. The applicant reports his most recent employment to be in lighting sales.
The applicant reported to a psychologist, Ms Pamela Matthews, that his criminal history in 1995 commenced with him being ‘kicked out’ of school for cannabis use (although Ms Matthews comments that the applicant’s first recorded court outcome relates to ‘going equipped to steal’). The applicant states that he used cannabis heavily from age 16 until age 19, when he commenced using heroin instead. He was able to cease using heroin after undergoing residential rehabilitation at Odyssey House, and drug counselling with Lamberti and Associates. However, the applicant then began using MDMA and amphetamines, primarily on weekends at nightclubs.
In 2007, the applicant developed diverticulitis. He required surgery, then a colostomy bag for 12 months. He stopped using drugs when he became unwell, and then spent several years in custody. In the 12 months prior to his remand in 2019, the applicant had resumed using amphetamine and MA and was using daily.
Criminal history
The applicant has a substantial criminal history commencing in 1995 when he was aged 17, and continuing through to his most recent conviction in 2022, when he received an aggregate sentence of 14 days’ imprisonment as set out earlier in these reasons.
On my calculation, the applicant’s criminal history includes no fewer than 22 separate court hearings in the Magistrates’, County and Supreme Courts involving 52 charges. The history includes convictions for offences of dishonesty, violence, weapons, reckless conduct and drug trafficking. There are convictions for breaching a suspended sentence, breaching family violence intervention orders, and driving whilst disqualified, as well as the more recent convictions for contravening conduct conditions of bail and committing an indictable offence whilst on bail.
In May 2010, the applicant was sentenced in this Court by Lasry J to four years and nine months’ imprisonment, with a non-parole period of two years and three months for intentionally causing serious injury. The charge concerned an incident where the applicant attended his parents address in Bentleigh East and stabbed his brother repeatedly.[6]
[6]DPP v Karisson [2010] VSC 195 (Lasry J).
In June 2010, the applicant was sentenced in the County Court by Judge Hicks to 19 months’ imprisonment for false imprisonment, common assault, and prohibited person possess firearm. These charges concerned an incident where the applicant attended a building site due to a disagreement with the owner, then dragged a tradesperson into a bedroom and held him at gunpoint. Following this, the applicant located the owner and waved the gun towards her. The sentencing judge described the applicant’s behaviour during the episode as ‘somewhat bizarre’, partly due to the influence of alcohol or drugs.[7]
[7]DPP v Karisson [2010] VCC 771 [23] (Judge Hicks).
The applicant was convicted in the County Court of trafficking MA and criminal damage on 18 August 2011 and sentenced by Judge McInerney to 20 months’ imprisonment.[8] In sentencing the applicant, his Honour commented that the applicant ‘was up to his neck in trafficking,’[9] and the offending before the Court ‘puts at question the favourable comments made about you by both Lasry J and Judge Hicks as to your rehabilitation prospects’.[10]
[8]DPP v Karisson [2011] VCC 1152UR (Judge McInerney).
[9]Ibid [10].
[10]Ibid [18].
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[11] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[12], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[11]The Act, s 4A(2).
[12]The Act, s 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[13] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[14]
[13][2004] VSC 17.
[14]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[15]
[15]See, for example, Re Brown [2019] VSC 751 (Lasry J).
Evidence led on the application
In addition to the affidavit material relied upon by each side, two witnesses were called before me. The informant Detective Senior Constable Sharp was cross-examined about a number of matters by Ms Ristivojevic for the applicant. One of the two proposed sureties, George Yelayotis, attested to his willingness to act as surety. In cross-examination, he acknowledged that he would be unable to supervise the applicant all of the time, but in re-examination, indicated that he would have substantial contact with the applicant. In the end, the wife of Mr Yelayotis, who had also provided an affidavit indicating her willingness to act as surety, was not called before me.
Applicant’s submissions
Ms Ristivojevic relied on a combination of matters in proof of the existence of exceptional circumstances and in resisting the respondent’s contention as to unacceptable risk. The matters were set out in the notice of intention to make an application for bail and the affidavit in support. They were as follows:
a) The strength of the prosecution case. Ms Ristivojevic, whilst not contending that the case is a weak one, submitted that the case on the most serious charges is not overwhelming. In respect of the large quantity of MA found in the orange Holden in East Bentleigh and the quantity of ephedrine found in Oakleigh South, there would be other explanations for the presence of the drugs at the locations ostensibly connected to the applicant without any knowledge or involvement by the applicant. In respect of the drugs found in the orange Holden, specifically, she submitted that evidence would suggest a connection between another individual named Lloyd and the vehicle in the days leading up to the seizure, and that this other person might be responsible for the presence of the drugs. Even if the applicant could be shown to be in possession, proof of his knowledge or intent as to a large commercial quantity may be lacking.
b) The impact of COVID-19 on the criminal justice system. In this regard, Ms Ristivojevic relied on the part the pandemic has played in the delay thus far in the case, and the difficult conditions it has brought about in the custodial setting.
c) Delay. Ms Ristivojevic acknowledged that the period between now and the commencement of the trial is the relevant delay, but urged the Court to have regard to the entirety of the period the applicant has spent on remand.
d) The availability of psychological/drug treatment. A report from Pamela Matthews, forensic psychologist, was relied upon. In addition, a report from BailSafe Australia setting out services and support which would be provided to the applicant under the umbrella of a 12-week outpatient support program was provided to the Court. Regular urine screening and sessions with Ms Matthews were parts of the proposed plan.
e) Availability of a surety of $400,000. It was submitted that notwithstanding the existence of a significantly larger surety in connection with the previous grant of bail, in light of the increased knowledge and understanding of the applicant as to the consequences of a breach of bail, the surety on offer is a significant one.
f) Ties to the jurisdiction, stable family and family support, and changed circumstances since the last grant of bail. Ms Ristivojevic submitted that the applicant has strong ties to the community and strong family support. He has a close relationship with his parents, who continue to support him. He also has the continued support of his former partner and their children. If released on bail, he would reside with them and provide support to his children. The written material indicated the applicant’s older daughter has experienced psychological difficulties as a result of the applicant’s incarceration. In respect of the changed circumstances, Ms Ristivojevic distinguished the circumstances which would apply to the applicant should he now be released on bail from the difficult circumstances to which he was exposed as a result of the particularly stringent nature of the previous bail conditions. He was required to live with his parents away from his children and partner. The conditions, she submitted, were nearly impossible ones for someone with the applicant’s addiction and relationship issues. As she put it, he was bound to fail.
In elaboration on the significance of the previous breaches of bail, Ms Ristivojevic emphasised the very difficult position in which the applicant found himself, and submitted that he made the decisions he did in that context. Importantly, however, he did not commit drug or violent offences. The breaching offences were relatively minor.
Ms Ristivojevic submitted that in light of the fact that the applicant would be back with his young children and focussed on their support, and would have the supports outlined in the BailSafe Australia report, the Court could have confidence that appropriate conditions would satisfactorily ameliorate any risk posed.
Ms Ristivojevic relied on the above matters in resisting the prosecution contention as to unacceptable risk.
Respondent’s submissions
Mr Shaw, who appeared with Ms Grunwald for the respondent, dealt in turn with each of the matters relied upon by the applicant in proof of exceptional circumstances as set out in the notice of application.
Mr Shaw submitted that the prosecution case on charge 1 is a very strong one. The suggestion that the MA in the vehicle may have belonged to another person is a weak one unlikely to be supported by any evidence, in light of the fact that Lloyd has already been sentenced in respect of his offending. Even were he to claim a connection with the drugs, joint possession would suffice from the Crown’s perspective. Mr Shaw outlined some of the other evidence which in his submission shows the strength of the prosecution case. This includes a substantial amount of unexplained wealth constituted by sums of cash found in the applicant’s possession and significant funds in his bank account, large gambling losses, and his possession of expensive motor vehicles, a boat and a Rolex watch. Mr Shaw submitted that the unexplained wealth would be relevant not only to the strength of the case, but also to the risk posed by the applicant of reoffending.
In respect of the matters of the impact of COVID-19 and delay, Mr Shaw submitted that whilst until recently there were impacts flowing from the pandemic including significant delay in this case, none of this really matters now because the trial is listed to commence in 105 days.
In relation to the availability of psychological or drug treatment, this is also insignificant in light of the relatively brief period of time before the trial and the fact that little would be able to be achieved in that period. It can be assumed that the applicant has been drug free in gaol, and in any event, his drug use had no nexus with his alleged offending. As for his psychological condition, he has been receiving treatment in custody.
As for the availability of a surety, a previous surety of $900,000 was insufficient to prevent the applicant breaching bail in the past in circumstances where he was living with the sureties. How can it be said that a $400,000 surety put up by people who would not live with the applicant would assure compliance with bail conditions in circumstances where a much larger surety put up by people living with the applicant failed to do so?
In respect of the matters of ties to the jurisdiction, family support and the like, those matters have been present all along. They did not lead to compliance last time. There is no reason to suppose they would do so now.
Mr Shaw took strong issue with the defence contention that these are not serious examples of the offence of trafficking LCQ because they involved only possession for sale and no actual sales. It is wrong in law to suggest that the mode of trafficking constituted by possession for sale is in some way less serious than other forms. As he put it, the regime in the Drugs, Poisons and Controlled Substances Act 1981 makes it clear that the seriousness of drug trafficking offences is usually determined by the quantity trafficked. Here, the amount of MA and ephedrine allegedly trafficked were respectively nine times and 3.8 times the large commercial quantities applicable to those drugs. This is therefore serious offending.
Mr Shaw submitted that the matters relied upon by the applicant are insufficient to establish exceptional circumstances, falling well below the requisite high threshold. If he was wrong about that, he submitted that the circumstances of the case would establish unacceptable risk, the central risk being of further offending, which in the case of serious drug offending would entail also a risk to the community.
Analysis
Turning to the first of the matters included in the non-exhaustive list of circumstances set out in s 3AAA(1) of the Act, namely, the nature and seriousness of the alleged offending, it is obvious that the charged offending is very serious, with trafficking LCQ attracting a maximum sentence of life imprisonment. Even the lesser alternative of trafficking a commercial quantity attracts a sentence of 25 years’ imprisonment. I accept the contentions of Mr Shaw as to the seriousness of the particular crimes alleged in this case. Whether or not I accept, as asserted by the informant in his report, that the applicant ‘is well entrenched as the leader of a sophisticated drug trafficking syndicate’,[16] about which I make no finding, he is alleged to have had in possession for sale quantities of two drugs far in excess of the applicable large commercial quantities for those drugs. The alleged offending is undoubtedly exceedingly serious.
[16]Informant’s report, [4].
Turning to the strength of the prosecution case, it is usually neither possible nor appropriate for a judge in my position to reach a definitive conclusion as to this matter. Having said that, Ms Ristivojevic submitted only that the case is not of overwhelming strength, and certainly not that it is a weak one. That in my view is understandable. The prosecution case on any view would be far from weak. Indeed, on the face of it insofar as I am in a position to make such an assessment, the case would seem to be a reasonably strong one.
The next matter for consideration in s 3AAA(1) is the applicant’s criminal history. Unfortunately, his history as I have already spelt out is a very serious one. It shows that he has had an apparent lack of regard for the criminal law from a young age and over many years of his life. He has been imprisoned on numerous occasions, and has shown in his response to a number of the relatively lenient dispositions extended to him his lack of respect for the authority of the courts.
As for the extent to which he has complied with conditions of earlier grants of bail, it is true that there were no breaches of bail until the ones for which he was sentenced on 29 August 2022. This should be seen in light, however, of the breaches of other sentencing orders and FVIOs with which his record is littered, and the great significance of the fact that he has been convicted of breaching bail upon the very charges upon which he now applies again for bail. Whilst those breaches did not involve a return to drug trafficking or other serious offending, their seriousness is illustrated well enough by the fact that the applicant was convicted and imprisoned in relation to them, and the $900,000 put up by his sureties was forfeited. An important opportunity was extended by a court to the applicant. He spurned it. Notwithstanding the fact that the applicant clearly was subject to very stringent conditions, these were imposed because a court considered them necessary and appropriate to ensure compliance. The applicant must have been well aware of the risk he was taking in not complying with the conditions to the letter. Those stringent conditions and the imposition of a very large surety were insufficient to ensure that the applicant did what was required of him. His conduct would raise a real question as to his willingness or ability to comply with any grant of bail this Court might make.
The fact of there being substantial family support available to the applicant is not a new thing, and would go little distance in support of the existence of exceptional circumstances. As for the bail support services on offer, this would not fundamentally change the applicant’s position, or serve to significantly reduce the risk he would pose of reoffending in light of his long criminal history.
Turning finally to the matters considered in s 3AAA(1)(k) and (l), the period of time the applicant would spend in custody if this application is refused is 3½ months. Of course any time in custody is significant, and I do not disregard the overall period the applicant has spent on remand. However, it is notable that the trial is not in the distant or uncertain future.
As for the likely sentence to be imposed should the applicant be found guilty of the most serious charges here, it would be very substantial, and would far exceed the entirety of the period he would have spent on remand even if bail is now refused.
Taking into account the circumstances to which I have specifically referred and all of the other circumstances of this case, I am far from persuaded that exceptional circumstances exist that justify the grant of bail here. In my view the applicant has fallen substantially short of discharging the burden resting upon him.
Although this is sufficient to dispose of the application, I note for completeness that even had this first hurdle been surpassed by the applicant, in the circumstances including importantly the serious criminal history of the applicant, the serious nature of the current offending, and his recent failure to comply with bail granted on these very charges, I would have been satisfied that there would be an unacceptable risk of his committing further offences while on bail should a grant of bail be made to him.
Conclusion
For the reasons stated, this application for bail must be refused.
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