Re McNally
[2018] VSC 522
•16 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0185
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application by Luke MCNALLY | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2018 |
DATE OF JUDGMENT: | 16 August 2018 |
CASE MAY BE CITED AS: | Re McNally |
MEDIUM NEUTRAL CITATION: | [2018] VSC 522 |
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CRIMINAL LAW – Application for bail – Charges of trafficking in a drug of dependence, possessing equipment for trafficking, possessing precursor chemical, possessing a drug of dependence, resisting police, possessing prohibited weapon without exemption, possessing ammunition without licence, arson, reckless conduct endangering serious injury – Exceptional circumstances – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Brown | Emma Turnbull Lawyers |
| For the Respondent | Ms S Coombes | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 11 January 2018, Luke McNally (‘the applicant’), was charged with trafficking in a drug of dependence (methylamphetamine) (two counts), possessing equipment for trafficking (two counts), possessing precursor chemical (iodine), possessing precursor chemical (phenyl-2-nitropropene), possessing a drug of dependence (methylamphetamine), resisting police, possessing prohibited weapon without exemption, possessing ammunition without licence, arson and reckless conduct endangering serious injury.
On 16 April 2018, the applicant was charged with two further offences of trafficking in a commercial quantity of a drug of dependence (methylamphetamine), and possessing a drug of dependence (methandienone).
On 20 July 2018, the applicant was charged with 20 further offences, comprising two counts of trafficking in a drug of dependence (1-phenyl-2-nitropropene and methylenedioxymethamphetamine (‘MDMA’)), and 18 counts of reckless conduct endangering serious injury.
The charges result from an investigation by the Victoria Police Clandestine Laboratory Squad, codenamed ‘Operation CHINOOK-2017’, into syndicated importation of ephedrine from China, and manufacturing and trafficking commercial quantities of methylamphetamine.
The applicant has been in custody since his arrest on 10 January 2018.
On 16 July 2018, the applicant filed an application for bail in this Court. The applicant had previously been refused bail in the Magistrates’ Court in respect of the above charges as they stood as at 11 January, 18 April and 6 July 2018.
There are two co-accused in this matter, Stuart Wareham and Andrew Bayly, who are both alleged to be members of the syndicate. Mr Wareham was charged with one count of trafficking methylamphetamine by way of summons. Mr Bayly was charged with trafficking methylamphetamine, trafficking MDMA, possessing methylamphetamine, possessing MDMA, dealing with property suspected of being proceeds of crime, and permitting use of premises for trafficking or cultivation of drug of dependence. He has been granted bail on his own undertaking with conditions.
All three accused are to face a contested committal hearing on 13 September 2018. I am told it is listed for one day, and will involve the cross-examination of the informant and a forensic scientist. I am also informed that there may be some prospect of resolving this matter.
The applicable legislation
Section 4 of the Bail Act 1977 (‘the Act’) states that a person accused of an offence is entitled to bail unless the Act requires the Court to refuse bail.
Where a person is accused of a Schedule 1 offence, s 4A(1) of the Act provides that the Court ‘must refuse bail … unless satisfied that exceptional circumstances exist that justify the grant of bail’. The charge against the applicant, namely trafficking in a quantity of a drug of dependence that is not less than the commercial quantity, is a Schedule 1 offence.
Pursuant to s 4A(2) of the Act, the burden of satisfying the Court that exceptional circumstances exist rests on the applicant. Pursuant to s 4A(3), in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail in relation to a Schedule 1 offence, s 4B(1) of the Act requires the Court to apply the ‘unacceptable risk test’.
The unacceptable risk test is found in s 4E(1) of the Act, and requires the Court to refuse bail if the respondent satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to take into account the surrounding circumstances, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable. In respect of surrounding circumstances, s 3AAA provides that the Court must take into account all the circumstances that are relevant to the matter including, but not limited to, the following –
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g) the accused's personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
Part 1 of the Act includes the principles on which the Court is to act in the course of determining such applications, and s 1B provides (among other things):
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty;
…
The alleged offending
The prosecution alleges that the applicant is a member of a drug syndicate involved in importing ephedrine from China, and manufacturing and trafficking methylamphetamine on a large scale. Further, the applicant is alleged to be the head of the syndicate, and in charge of sourcing precursor chemicals and manufacturing methylamphetamine. Other syndicate members include Mr Wareham and Mr Bayly, who are alleged to have assisted the applicant in the manufacturing and trafficking of methylamphetamine.
Manufacturing
Evidence gathered through telephone interception of the applicant’s mobile phone and physical surveillance indicates that once the syndicate received the necessary chemicals and apparatus, the applicant would utilise a shed to manufacture methylamphetamine at 146 Clausen Road in Rushworth (‘Clausen Road’). The applicant would then conduct the final process of re-crystallisation at a property at Lot 5, Tait Hamilton Road in Cornella (‘Lot 5’).
The property at Clausen Road is owned by Mr Bayly. A shed located on the property was set up to manufacture methylamphetamine; it contained various items of scientific glassware and apparatus, and was fitted with surveillance cameras and a monitor. In close proximity, there was also a container buried in the ground, which contained precursor chemicals and scientific glassware.
The property at Lot 5 is controlled by Mr Wareham. This was the applicant’s primary residence between August 2017 and December 2017 and where he conducted the final manufacturing process of methylamphetamine (re-crystallising).
Trafficking
The prosecution case is that the applicant utilised two separate mobile phones registered under fictitious names to communicate with syndicate members and associates. He would also use coded language and encrypted communication applications such as ‘Wickr’ to communicate with members and associates.
On 9 October 2017, police executed a covert search warrant at the premises at Lot 5. During that search, investigators observed a laboratory containing numerous plastic bottles of liquids, solids, and bi-layered liquids; a lasagne dish with white solid; scales; bottles labelled ‘hcl’; a bottle labelled ‘dry NaOH’; a zip lock bag containing white solids; glass containers containing white solids; a bottle labelled ‘isopropyl alcohol’; a ph test kit; a taser; glass breakers; and an open tray containing a liquid and solid with a fan blowing over it. Samples of the liquids and solids taken by investigators indicate methylamphetamine and ephedrine mixture, DMS cutting agent and various other mixtures. It is alleged that the applicant was the sole occupant of these premises.
On 10 January 2018, a search warrant was executed at the premises at Clausen Road. Upon gaining entrance, police observed a shed on the eastern side of the rural property to be on fire. Police attempted to gain entry to the shed but it was locked. They then heard the sound of smashing glass from inside the shed, smelt a strong smell of solvents, and observed a thick black smoke emanating from the shed.
The prosecution case is that the applicant was alerted to the police presence by surveillance cameras that were installed at the property, which fed into a monitor screen inside the shed. It is alleged that the applicant deliberately started the fire and smashed glassware in attempt to destroy evidence.
Following a struggle, the applicant was arrested and transported to Goulburn Valley Health. A search of his clothing located a substance weighing 2.2 grams, which contained ephedrine. The applicant was the only occupant present at the premises at the time the search warrant was executed.
On 11 January 2018, a further search of the Clausen Road premises was conducted by police. During this search, police located two glass jars containing scheduled precursor chemicals and drugs of dependence, a glass condenser, and a glass fractioning column labelled ‘24/40’ in a concealed underground pit near the shed.
Police also located a gas burner, broken glass condenser, vacuum pump, electric hot plate and mental retorts stands inside the shed. These items are alleged to be consistent with equipment for manufacturing drugs.
A search of a fire-damaged vehicle located, inter alia, a metal pressure cooker with attached gauge, an iPhone, two Optus sim cards, a taser and quantity of .22 calibre ammunition.
A search of the applicant’s main residence located, inter alia, a PSPB containing white crystal, a plastic container containing capsules, a Berocca container containing four capsules, and two PSPs containing white crystals.
On 11 January 2018, the applicant was interviewed by police and denied any involvement in the manufacturing of drugs of dependence.
The applicant
The applicant is a 34 year old man, who identifies as Indigenous. He has a criminal history in Queensland, including a number of prior offences for possession of drugs and weapons, and failure to properly dispose of needle and syringe. He does not have a criminal history in Victoria.
At the time of the alleged offending, the applicant was on bail for a large number of matters in Queensland. These included 14 pending charges in the Magistrates’ Court, eight pending charges in the Supreme Court, and two charges awaiting sentence in the Supreme Court. A number of these alleged offences relate to illicit drugs of dependence.
Additionally, there is an outstanding warrant for the applicant’s arrest, issued by the Southport Magistrates Court in Queensland on 26 February 2018. This was issued when the applicant was already in custody in Victoria, and therefore is not a matter that can be properly utilised in the resolution of this application. There was also a matter said to be a second arrest warrant issued on 10 August 2017, by the same Court. However, this appears to be a breach of a sentencing recognisance, not an arrest warrant. To my mind, the information is not clear enough surrounding this event to draw any adverse conclusion against the applicant.
The applicant’s contentions
In the affidavits dated 16 July 2018, the applicant’s solicitor submitted that the following matters are established by evidence and show exceptional circumstances as to why the applicant should be granted bail.
Availability of residential rehabilitation
The applicant has been assessed as suitable for a placement at The Wellbeing Planet to undertake a residential treatment program. I heard evidence from Denise Abadee, Director of The Wellbeing Planet, in support of the application. I have carefully listed to that evidence, and the relevant submissions.
Weakness of the prosecution case
It was submitted that the prosecution case against the applicant is weak. The primary charge of trafficking in a commercial quantity of a drug of dependence is based upon the contents of a glass jar labelled ‘Capriccio 700g’, located on 11 January 2018. The preliminary results indicated the presence of other drugs. The prosecution failed to comply with the timetable for the provision of evidence, which was on 6 July 2018, but submitted at the hearing that this analysis had been determined and there was no further evidence in this regard.
Delay
The matter is listed for a committal hearing on 13 September 2018. The applicant accepts that this delay is not inordinate, but submits it is globally relevant.
Relevance of the applicant’s criminal history
Whilst it is conceded that the applicant has a criminal history in Queensland and was on bail at the time of the alleged offending, there is no criminality alleged against him prior to the age of 29.
First time in custody
The applicant has remained in custody since his arrest on 10 January 2018. This is his first substantial period in custody.
Length of potential sentence
The applicant acknowledges that the offending is serious, but submits that the charge of trafficking in a commercial quantity may not be established. If it is not established but the applicant is convicted of the other charges, there is a strong possibility that he will have served a significant portion of any sentence or non-parole period on remand.
Availability of conditions
It is proposed that the Court impose a condition confining the applicant to The Wellbeing Planet until the date of his committal hearing, supported by an undertaking from Ms Abadee, to provide a secure platform for the applicant’s release from custody.
Proposed conditions include that the applicant:
(a) reside at The Wellbeing Planet;
(b) must comply with all lawful directions given by Ms Abadee;
(c) report to the local police station daily;
(d) not leave the State of Victoria or attend any international points of departure; and
(e) not contact any witnesses for the prosecution.
As to the issue of whether the applicant is an unacceptable risk of committing offences whilst on bail, endangering the safety and welfare of the public, and failing to answer bail, the applicant submitted that any such risk could be appropriately dealt with by the imposition of the proposed bail conditions above.
The respondent’s contentions
The respondent opposes bail and submits that the applicant has not demonstrated exceptional circumstances that justify the grant of bail, and that he poses an unacceptable risk of committing further offences whilst on bail.
Risk of committing further offences whilst on bail
The respondent submits that the applicant has shown a significant level of premeditation and planning in the alleged offending. He has demonstrated that he is willing to invest a significant amount of money and time in the alleged criminal enterprise for financial gain. Allegedly, when the applicant became aware that the search warrant was being executed through surveillance cameras, he set fire to the laboratory with an aim to destroy evidence of manufacturing drugs of dependence.
The applicant also continued to commit offences whilst on bail from Queensland courts for a large number of charges, and has breached his bail undertaking on numerous occasions.
The respondent submits that the type of offending he has engaged in will continue to endanger the safety and welfare of the public, such as driving at excessive speed to avoid police detection, and setting fire to the shed in an attempt to destroy evidence.
Failure to surrender himself into custody in answer to his bail
The applicant committed the alleged offences whilst on bail for a large number of offences of a similar nature in Queensland. He breached the conditions of his bail for the Queensland offences by residing at addresses other than the nominated address in Altona North. The applicant does not have strong ties to the Victorian community, as his only ties are those involved in drug trafficking, and his family and associates are all interstate.
Further, the respondent expresses concerns regarding the applicant’s proposed residential rehabilitation program as it is voluntary, providing him with the opportunity to abscond.
Conclusions
In my opinion the applicant has failed to demonstrate exceptional circumstances that justify a grant of bail.
As to the strength of the prosecution case and the seriousness of the allegations, a Magistrate will be best placed to make this assessment at the conclusion of the committal. It appears the first charge of commercial trafficking may fall away at the committal. However, I do not find the prosecution case can be said to be a weak one. When looked at in its entirety, the case is not limited to a few allegations of trafficking, but is a quintessential circumstantial case. It appears to indicate a well organised syndicate and sophisticated drug manufacturing operation.
The allegations are unquestionably very serious, in regards to the scale, degree of organisation and sophistication of the set-up and syndicate. The major allegation of commercial trafficking is a Schedule One offence. The alleged offending involves the importation of chemicals from overseas, and the establishment of a sophisticated manufacturing process.
As to the issue of delay, the matters are listed for a committal hearing less than a month from today. I do not consider that there will be a significant delay in concluding the committal in this matter.
The applicant’s criminal history has some significance, and he currently faces a series of outstanding charges in Queensland. It is conceded that he was on bail from Queensland courts at the time of the alleged offending in Victoria. The applicant appears to be in breach of those bail conditions, and there is at least one warrant for his arrest issued by a Queensland court, although this may have been issued while he was in custody in Victoria. While such breach of bail might ordinarily require an applicant to show exceptional circumstances, it was not submitted as the basis on which I should conclude this matter. As the applicant is otherwise charged with a Schedule One offence, and thus in an exceptional circumstance position, it was not necessary to determine the issue of bail regimes operating across jurisdictions. Nonetheless, these circumstances may be appropriately considered under s 3AAA of the Act, as ‘surrounding circumstances’.
The applicant appears to be unemployed, with few connections to Victoria. He has put forward a proposal to attend a residential drug treatment facility, as well as offering a substantial surety. In my opinion, these two proposals come nowhere near amounting to exceptional circumstances, either individually, or in combination with all other relevant factors. Further, there is minimal evidence to demonstrate that the applicant is in need of the type of drug treatment this clinic offers. On the prosecution case, the applicant is in the business of manufacturing and trafficking drugs. I am not satisfied on the evidence that he suffers from the kind of affliction that warrants the proposed treatment.
Having taken into account all the circumstances, I am not satisfied that exceptional circumstances have been established by the applicant and accordingly I refuse the application for a grant of bail.
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