Re Mirukaj
[2022] VSC 82
•14 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0378
| IN THE MATTER of the Bail Act 1977 (Vic) |
| IN THE MATTER of an Application for Bail by ERGYS MIRUKAJ |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2022 |
DATE OF JUDGMENT: | 14 February 2022 |
CASE MAY BE CITED AS: | Re Mirukaj |
MEDIUM NEUTRAL CITATION: | [2022] VSC 82 |
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CRIMINAL LAW — Application for bail — Charges of trafficking in a commercial quantity of a drug of dependence — Significant delay caused by pandemic — Parity of bail — Exceptional circumstances established — Risk not unacceptable with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Dunn QC | Marcevski Lawyers |
| For the Respondent | Mr A Albert | Office of Public Prosecutions |
HIS HONOUR:
Introduction
By application filed 20 December 2021, Ergys Mirukaj (‘the applicant’) seeks bail in this Court in relation to the following 18 charges brought by Detective Senior Constable Mona El-Helwani:
(a)cultivating a narcotic plant in not less than a commercial quantity (two charges);
(b)cultivating a narcotic plant;
(c)trafficking a drug of dependence in not less than a commercial quantity (two charges);
(d)possessing a drug of dependence (four charges);
(e)trafficking a drug of dependence (four charges);
(f)attempting to traffick a drug of dependence in not less than a large commercial quantity;
(g)attempting to possess a drug of dependence;
(h)dealing with proceeds of crime;
(i)failing to provide information or assistance in relation to a data storage device; and
(j)theft.
There are no grounds specified in the application.
The applicant was arrested on 7 September 2021 and has been on remand since that time. He was refused bail in Melbourne Magistrates’ Court on 28 September 2021 on the basis that he failed to show exceptional circumstances that justified the grant of bail.
The matter is next listed for a committal hearing on 1 June 2022 in the Melbourne Magistrates’ Court.
The application
The application is supported by the following affidavits:
(a)Nick Marcevski, solicitor, dated 17 December 2021, to which are attached two exhibits.
(b)Nick Marcevski, solicitor, dated 31 January 2022 to which further exhibits are attached.
(c)Rebeka Hanson, dated 14 December 2021, and
(d)Gianni Lupezinni, self-employed farmer, dated 6 December 2021.
The applicant supplemented the above with an 11-page written submission, oral submissions on the hearing of the application, and a chronology of events.
In response to the application, the respondent filed an affidavit sworn by Rafael Tudehope, legal practitioner employed by the Office of Public Prosecutions, dated 17 January 2022, also attaching a series of exhibits, including a 9–page bail report prepared and authored by Detective Senior Constable Mona El-Helwani, also dated 17 January 2022.
The respondent also relies on oral submissions made in the course of the application.
The parties agreed that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis. Oral evidence was called on the application which will be discussed below.
The alleged offending
The applicant moved to Australia from Albania in or around 2015. He was originally based in South Australia, but in August 2020 is said to have received assistance from co-accused Ayoub Adam to move to Melbourne. The prosecution case is that Mr Adam set the applicant up with a car registered in Mr Adam’s name, and a house in Springvale. The purpose of this move interstate was for the applicant to assist Mr Adam in the day-to-day running of a drug cultivating and trafficking operation.
In November 2020 Victoria Police Organised Crime Intelligence Unit commenced an investigation into the activities of the applicant and Mr Adam. The investigation used various tactics, including physical and covert surveillance to investigate the activities of these men.
Throughout the course of the investigation police identified various persons of interest who were linked to the applicant and Adam, including co-accused Salim Patel, Ali Sadeghi-Iman and Bill Argyropoulos. Their respective involvement in Adam’s and the applicant’s alleged operation is as follows:
(a)Salim Patel owns a house in Doveton. It is alleged that, on 10 August 2020, the applicant and Adam used a false name to enter into a lease agreement with Patel to rent the Doveton property. It is further alleged that they set up a hydroponic system at the house to grow cannabis, and paid Patel to sleep there and monitor the crops on their behalf. Numerous intercepted telephone conversations between the applicant and Adam, partly in code, are relied on by the prosecution as evidence of their regular discussions about the property. The applicant and Adam were also observed through physical surveillance regularly attending the property throughout the course of the investigation. On 7 September 2021, search warrants were executed at the address where police located 49 cannabis plants and loose green vegetable matter believed to be cannabis, as well as an electrical bypass. Patel was arrested and interviewed, but released without charge at that time. In his interview he made various statements implicating two persons, who the prosecution allege are the applicant and Adam. On an unknown date, Patel was rearrested, charged and remanded, before being granted bail in the Melbourne Magistrates’ Court on 24 November 2021.
(b)Bill Argyropoulos lived at a house across the road from the applicant’s house in Springvale. On 15 January 2021, the applicant and Adam attended Bunnings in Springvale and purchased pieces of pine and adhesive double-sided tape. They later drove to Argyropoulos’ house and remained there for a number of hours, during which time it is alleged they used the purchased items to assist in setting up a hydroponic system for growing cannabis. The applicant and/or Adam were observed attending Argyropoulos’ house on other occasions, including on 1 and 15 March 2021, and phone records show them both separately having phone contact with Argyropoulos at other times. They also referenced ‘Bill’ in several intercepted telephone conversations between themselves between July and August 2021. On 20 May 2021, search warrants were executed at Argyropoulos’ house. Inside the garage police found a hydroponic set up with six large cannabis plants and loose green vegetable matter believed to be cannabis. The total weight of the cannabis seized was 79 kilograms. Argyropoulos was arrested, charged and remanded in custody. He is not described as a co-accused in the prosecution’s material and his current bail or remand status is not known.
(c)Ali Sadeghi-Iman lived at a house in Point Cook. On 15 August 2021, the applicant and Adam were recorded on telephone intercepts discussing going to see ‘Salim’ to cut open, and then weld back together, an air compressor. On 16 August 2021, the applicant, Adam and Sadeghi-Iman went to Bunnings in Springvale and purchased various items including a large ‘Chicago’ brand air compressor and an angle grinder. That evening, Sadeghi-Iman was intercepted by police while driving on the Hume Highway in Barnawartha, close to the border of Victoria and New South Wales. A search of his car was conducted which located vacuum sealed bags of cannabis, in addition to a large Chicago brand air compressor. The air compressor was pulled apart and further vacuum sealed bags of cannabis were found secreted inside of it in a modified compartment. The total weight of cannabis seized from Sadeghi-Iman’s car was 45.89 kilograms. A search was later conducted at Sadeghi-Iman’s Point Cook home, revealing a hydroponic cannabis set up in one of the bedrooms with four large cannabis plants. The total weight of the cannabis seized from his house was 27.3 kilograms. At the house, police also located an electrical bypass in one of the wall cavities. It is alleged that the applicant and Adam directed and assisted Sadeghi-Iman to grow cannabis at his house, and to deliver cannabis to New South Wales – prior to him being intercepted by police. Sadeghi-Iman was transported to Wodonga Police Station where he made a partial ‘no comment’ interview. He was charged and remanded in custody, and has not since been granted bail.
Due to the financial losses incurred by the significant amount of cannabis seized from Sadeghi-Iman’s car and house, the prosecution allege the applicant was under serious financial strain. In order to alleviate this, it is alleged he attempted to traffic cocaine.
On 27 August 2021, it is alleged that the applicant made attempts to obtain a package addressed to ‘Franko Azzarro’ at Centre Road in Springvale. Shortly prior to the scheduled delivery time, the package was redirected to Argyropoulos’ former house in Springvale, then located across the road from the applicant’s house. The applicant approached the deliveryman and asked if he had a delivery for ‘Frank’. The package was not handed over to him, and he then followed the deliveryman to another address in Springvale and attempted to again obtain the package. The driver refused to surrender it but noted the applicant’s numberplate and the matter was referred to the Australian Border Force (‘ABF’) due to what was regarded to be the applicant’s suspicious behaviour.
Between 27 August and 2 September 2021, a number of calls were made, allegedly by the applicant, inquiring about the whereabouts of the package. During this period, telephone intercepts captured the applicant and Adam discussing their concerns about a package not being delivered. Analysis of one of the applicant’s phones at a later time revealed multiple screenshots of information alleged to be connected to the package – including shipping, tracking, re-direction, and invoice details. On 28 August 2021, the ABF examined the package and found in it approximately three kilograms of cocaine.
On 30 August 2021, Adam rented a storage unit from Kennard’s Self-Storage in Springvale. The lease was in his name using the applicant’s address in Springvale. Over the following week, CCTV captured the applicant and Adam attending the unit numerous times, often taking items inside with them.
On 7 September 2021, Adam was arrested at the unit. A search was conducted and inside the premises police located various items, including two zip-lock bags filled with white powder; 36 vacuum-sealed bags of cannabis; scales; vacuum sealer; vacuum bags; and LED ‘grow light’ racks.
A search of Adam’s house in Springvale was also conducted and no items were seized, however, a car out the front was searched, in which various documents in Adam’s name were seized, including an energy bill addressed to the applicant’s house in Springvale. There were also documents found in the car which were addressed to Patel’s Doveton house, but listed in the names of third parties. Adam was transported to Melbourne West Police Station. He made a ‘no comment’ record of interview and was remanded in custody. The following day, on 8 September 2021, Adam was granted bail in the Melbourne Magistrates’ Court subject to various conditions including a $1 million surety.
On 7 September 2021, the same day as Adam’s arrest, the applicant was intercepted by police while driving in Springvale. He had in his possession at the time a set of fobs for the storage unit Adam rented on 30 August 2021. His car was searched and three phones and $11,115 in cash were found, amongst other things. The applicant’s Springvale home was also searched and various items were seized, including three mobile phones, $163,020 in cash, 53.6 grams of cocaine, 484.9 grams of cannabis and a ‘tick book’ recording details of alleged drug transactions. The applicant acknowledged that the cocaine was his.
Police arrested the applicant and transported him to Melbourne West Police Station for interview, where he responded ‘no comment’ to questions put to him. He refused to provide PINs to the phones seized from his car and house, and was remanded in custody.
Evidence of the informant
The respondent called evidence from Detective Senior Constable El-Helwani, who indicated she was also the informant in relation to the co-accused, Adam. She confirmed authorship of the bail report dated 17 January 2022, and clarified that there was a jointly held mortgage in the applicant and his wife’s name in relation to a property in South Australia, and otherwise that the contents of her report are true and correct. She confirmed that the investigation involved a large volume of intercepted telephone calls, from which she opined that there was no evidence of the applicant having lawful employment. She also confirmed that the charges against the applicant and his immediate co-accused, Adam, are virtually the same. She indicated that the evidence revealed the applicant had tasked his co-accused to conduct activities, and giving him instructions about what to do, therefore having a more senior role in the alleged offending.
The informant asserted an opinion the applicant faces eventual deportation and as a result he is a greater risk of flight, in the face of a serious term of imprisonment being imposed on him. That said, she accepted from her knowledge of the telephone intercept material there was no other evidence suggesting an intention on the part of the applicant to take flight. She confirmed her belief that the applicant’s immediate family live overseas, and that he has associates in the Albanian organised crime community.
In cross-examination the informant confirmed that the co-accused, Adam, had a similar remand summary to the applicant, was granted bail with a surety of $1 million and had a prior criminal history, including convictions for failing to appear on bail and breaching a CCO. Further, the applicant has no prior convictions in Australia or Albania, and is married. Police did not find any false passport or travel documents in his possession, or at his house. The informant is not aware of any arrangements he had made to leave Australia prior to his arrest, or that he had obtained or tried to obtain false documentation. She had not heard on telephone intercept material, including Arunta recorded communications, any discussion about such matters. The informant confirmed that in her assessment of the unacceptable risk attaching to the applicant, the primary consideration was the nature of his alleged offending, namely, that he had been charged with cultivating and trafficking in the large quantity of cannabis. She also confirmed that there was nothing in the police brief regarding an allegation that the applicant was associated with Albanian organised crime figures. The informant also expressed the opinion that the applicant had access to false documents and he could easily use a false identity to obtain travel documents, as he had done in discussions seeking to obtain telephones and SIM cards. The informant also opined that the applicant owes significant amounts of money to Albanian organised crime entities, that there was evidence within telephone intercepted material that he was in contact with them, particularly focussing on the alleged cocaine importation, and his loss of money caused by his failure to obtain possession of the importation sent by persons overseas.
Re-examined, the informant said that the debt the applicant owed is a reason for him to take flight. She indicated that prior to his arrest there was no reason for him to depart the jurisdiction.
The applicable legislation
The applicant is charged with various Schedule 1 offences within the meaning of the Bail Act 1977 (Vic) (‘the Act’), including attempting to traffick in a drug of dependence in not less than a large commercial quantity, trafficking in a drug of dependence in not less than a commercial quantity and cultivating a narcotic plant in not less than a commercial quantity.[1] Bail must therefore be refused unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[2] In determining this, the Court must take into account the relevant ‘surrounding circumstances’, including those in s 3AAA(1) of the Act.[3]
[1]Bail Act 1977 (Vic) (‘the Act’) sch 1, items 6(a), 6(b), 6(d) and 12.
[2]Ibid ss 4AA(1), 4A(1A) and 4A(2).
[3]Ibid s 4A(3).
In Re Strachan[4] Lasry J observed:
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a)The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b)Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c)Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[5]
[4][2021] VSC 538.
[5]Ibid at para [27].
In determining this application I will apply the test as set out by Lasry J, as above.
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[6] In considering this, the Court must again take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[6]Ibid ss 4D(1)(a) and 4E.
[7]Ibid s 4E(3).
Finally, when interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1).[8]
[8]Ibid s 1B(2).
The applicant’s personal circumstances
The applicant is a 34 year old Albanian man. He obtained a Masters in Sports Science, was a professional and national champion wrestler, and worked as a security guard before immigrating to Australia in his mid-late twenties. Notwithstanding his family’s financial struggles, the applicant reports a good upbringing and is close to his parents and two siblings who remain in Albania.
Since migrating from Albania, the applicant has been primarily based in South Australia where he reports being employed as a farmer. However, at the time of his arrest, he was residing in Melbourne in Springvale with his wife, Rebeka Hanson, with whom he has been together for seven and a half years. He remains in Australia on a permanent partner visa.
Criminal history
The applicant does not have a criminal history in Australia, or Albania, and he has not been in custody previously.
The applicant’s contentions
The applicant relies on the following matters, in combination, in support of his application for bail.
Delay and likely sentence
The applicant submits it is now commonly recognised that the dominant exceptional circumstance in bail applications, even for people alleged to have committed serious offences, is the issue of delay. The applicant’s committal hearing is listed for 1 June 2022, representing a delay in custody amounting to about ten months. Further, the applicant pointed to the delay that will take place until the eventual hearing of his trial.
The applicant reminded the Court that prior to the COVID-19 pandemic a delay of two years was thought to be out of the ordinary. It was submitted that the system is now confronting delays of up to three years in some cases. The applicant further pointed to the grim reality of well over 1000 jury trials awaiting hearing in the County Court, with a growing and not shrinking backlog of cases.
The Court was informed the applicant proposes to contest the charges and submits he faces an exceptional period of up to three years on remand awaiting trial, due in part to delays associated with the COVID-19 pandemic. It is however conceded that he will face a significant prison sentence if convicted of the serious charges he faces. The applicant submitted that with a case such as the present, with over 20,000 intercepted telephone calls, multiple alleged offences, including an attempt to obtain an imported package of cocaine, and multiple offenders, that there are triable issues that cannot begin to be tested until the committal hearing.
Thus it was submitted that the anticipated delay is an exceptional circumstance.
Nature and seriousness of alleged offending
By reference to the quantum of substances and monies seized during the operation, the nature of the alleged operations, together with the maximum penalties for the charged offences, it is conceded the allegations against the applicant are serious.
Strength of the prosecution case
The applicant submits there are a number of triable issues in the prosecution case including:
(a)the applicant’s role, knowledge and intention in the commercial cultivation and trafficking charges;
(b)the applicant’s role in the attempted large commercial trafficking charge;
(c)the applicant’s belief as to the source of cash that was seized during the operation; and,
(d)the admissibility of matters raised by one of the co-accused which implicate the applicant.
Criminal history and previous bail compliance
As the applicant has no prior convictions or history of non-compliance with bail, it was thus submitted that the applicant was not on bail at the time of his alleged offending.
Family support and stable accommodation
The applicant is supported by his wife, Ms Hanson, and he proposes to reside with her at an apartment located at 138 Spencer Street in Melbourne if bail is granted.
Ms Hanson gave oral evidence on the application. She explained that her husband came to Melbourne in about June 2020 because he wanted to open the business, like a café or restaurant, however that proved too difficult because of the impacts of the COVID restrictions.
Ms Hanson arrived in Melbourne about two weeks prior to the applicant’s arrest. She was unclear about whether her husband was working in the period he was in Melbourne before her arrival, or if he was relying on savings from their farming business. She did not know what her husband’s source of income was around that time, nor about any large amounts of cash later found in the house by police.
Ms Hanson confirmed that she had the applicant have had personal issues, and stated that he is on ’thin ice’.She expressed an undertaking that if the applicant was to breach any bail conditions she would immediately contact the informant, and that the Spencer Street police station is a short distance away.
Employment
The applicant has ongoing employment available to him four days per week at the Italian restaurant, Eat’aliano by Pino, if bail is granted.. In a letter dated 30 January 2022, owner and manager of the restaurant, Giuseppe Russo, confirms this offer and states that the applicant would be working as a pizza apprentice and a handyman if granted bail.
Availability of treatment
The applicant proposes to receive treatment for drug addiction through Lamberti & Associates Rehabilitation Consultants, and was assessed for his suitability for same by clinician, Amanda Brown, on 8 December 2021. The applicant told Ms Brown he commenced occasional cocaine use at age 32 with friends to alleviate depressive symptoms which began in his thirties, and that this use progressed within a year to daily use of up to five grams. The applicant states he has detoxified on remand and is optimistic about recovery. It is proposed he engage in weekly counselling and regular drug screening if bail is granted.
Electronic monitoring
The applicant proposes to be subject to geographical electronic monitoring through Attenti Australia Pty Ltd (‘Attenti’), if bail is granted. This would involve a GPS device being fitted to his ankle to monitor his whereabouts.. The device is capable of being programmed to monitor certain bail conditions, including curfews and exclusion zones, any breach of which would trigger an alert to the informant and/or any other nominated person. In an affidavit affirmed on 16 December 2021, Laura Windsor, product manager for Attenti, confirms that the applicant’s proposed residence in the Melbourne CBD has full coverage and that the applicant is capable of being monitored by Attenti from this location.
The applicant called evidence from Philipp Schluter, the business development manager for Attenti Australia. Mr Schluter explained that although the bracelet is designed to be tamperproof, a person with the right tools could remove it, but if that happened an alert would be generated, and the police informed within a few minutes.
Surety
Ms Hanson and the applicant’s father-in-law, Gianni Lupezinni, propose to offer sureties on behalf of the applicant to a combined total of $175,000. In particular, Ms Hansen offers $75,000 by way of equity in an investment property in South Australia, and Mr Lupezinni offers $100,000 in cash.
In her evidence, Ms Hanson confirmed she was prepared to act as her husband’s surety in the event of a grant of bail, and that the property to be put up is located at 41, The Parade, Holden Hill in South Australia, which was purchased in 2019. She said the property was now worth more than $355,000, being the purchase price, and there is a mortgage associated with the property.
Unacceptable risk
The applicant submitted that the real battleground in this application is whether the prosecution can establish the applicant is an unacceptable risk, as provided for in section 4E of the Act.
The prosecution argues that there is a risk the applicant would fail to surrender himself into custody, and that he is charged with a serious criminal offence.
The applicant referred to the cases of Brookman[9] and Haidy[10], and submitted, relying these cases, that there must be a sufficient likelihood of the occurrence of the risk, having regard to all of the relevant circumstances, to make it unacceptable.
[9]Re Brookman [2020] VSC 470 at [17] (Dixon J).
[10][2004] VSC 247 at [15] – [16] (Redlich J).
The applicant pointed to a lack of evidence that the applicant has made any preparations, or discussed or done anything about trying to leave the jurisdiction. Further, the applicant points to the difficulty in leaving the Australian jurisdiction given a modern emphasis on facial recognition technology, and the ability for easy communications between Victoria Police and Australian Border Force to have a person placed on a departure prohibition order. It is argued that these features, along with other matters, act to ameliorate unacceptable risk to an acceptable level. So it is submitted, that although there may be a suspicion that the applicant may take flight, there is no evidence that can be relied on to establish that proposition and it is speculative in nature.
Furthermore, the applicant proposes bail conditions to mitigate the risk of flight, including two sureties, to reside with Ms Hanson at an apartment in Spencer Street, Melbourne, compliance with a curfew, daily reporting, not associating with co-accused or witnesses, possessing only one phone and providing a PIN number and passwords to the same phone, surrendering travel documents and not applying for any additional documents unless to maintain his visa, not leaving Victoria or attending international departure points, and being subject to electronic monitoring.
Finally, the applicant points to the series of bail decisions from this Court demonstrating that bail can be granted in cases of applicants charged with trafficking large commercial quantities of drugs.[11]
[11]See e.g. Re Ning [2020] VSC 609; Re Boo [2020] VSC 882.
The respondent’s submissions
The respondent opposes this application on the basis that the applicant has not demonstrated exceptional circumstances that justify the grant of bail, and that he poses an unacceptable risk of failing to surrender into custody in accordance with conditions of bail.
Delay and likely sentence
The respondent concedes that delay arising out of the COVID-19 pandemic is a relevant issue, however submits that the delay until the committal hearing on 1 June 2022 is not unreasonable. The respondent agrees that it is difficult to estimate when the applicant’s trial will get on, but that the likelihood is that it will not be until 2023, but there was no guarantee about that and it could even be a longer period.
In any event, it is submitted the applicant will face a prison sentence exceeding time spent on remand if he is convicted, and that that is a matter to be taken into account in assessing the exceptional circumstances test.
Nature and seriousness of the allegations
It is submitted that the allegations against the applicant are very serious, and as above, this is a relevant consideration in taking into account whether the applicant has satisfied the exceptional circumstances test. The respondent submits that the applicant did not play a small role in the alleged offending, and that he was at ‘the top of the tree’. It is submitted that there was an extensive number of crop houses involving a high level of organisation, with large amounts of cash found at the applicant’s premises. It is submitted that all of these factors indicate the applicant was engaged in a significant criminal business operation. As well as that, the applicant is alleged to have been involved in transportation of cannabis to New South Wales, with a large amount of cannabis secreted within a machine. Further, he was engaged in a subsequent attempt to traffic an imported amount of cocaine. All of this put together suggests, says the respondent, a significant poly-drug business operation where the applicant has no other identifiable source of income.
Criminal history
It is conceded that the applicant does not have a criminal history, however it is submitted there is a strong prosecution case to support the serious allegations against him. Further there is said to be intelligence obtained by South Australian police linking the applicant to cannabis cultivation activity between 2017 and 2020.
Family support and ties to the jurisdiction
The applicant has strong family ties to South Australia and maintains frequent contact with his in-laws who reside there. His mother-in-law, Sindy Hanson, has convictions for producing a controlled substance. It is further noted that the applicant travelled to South Australia on at least five occasions between December 2020 and his arrest, including during periods of lockdown in Victoria. In doing so, he has shown a disregard for the law.
The applicant argues that the potential flight risk factor, and of committing further offences, is a matter of inference from the circumstances. The respondent points to the applicant’s overseas links, with an ability, or an inclination to obtain false documentation. The respondent points to the likelihood that on conviction, and being sentenced to more than 12 months’ imprisonment, the Minister must cancel his current visa. Accordingly, it is argued there is less motivation for the applicant to remain in Australia in the face of that prospect, and a lengthy sentence of imprisonment being imposed.
Suitable accommodation
The respondent does not take issue with the applicant’s proposed accommodation with his wife in the Melbourne CBD, but questions how it will be paid for (estimating a rent value of $500 per week) given that the applicant’s wife is thought to be a student and unemployed.
Employment
In response to the applicant’s claim that he was working as a farmer in South Australia up until the time of the arrest, the respondent submits that this could not be accurate as the applicant was based in Melbourne and had been residing here full-time for at least the 12 months prior to his arrest. While he did travel back to South Australia several times in 2021, these were for brief periods with the exception of one trip in July 2021. It is noted that, during that particular July 2021 trip, the applicant’s phone did not ping off any cell-towers in the vicinity of his father-in-law’s farm in South Australia. Further, the applicant told the informant at the time of his arrest that he was working as a handyman at a restaurant in the city, contradicting his claims of working as a farmer. He refused to provide the name of the restaurant he claimed to be working at that time.
Availability of treatment
The respondent submits that the applicant’s offending was not motivated by his drug addiction, but rather financial gain, and on this basis questions the value of proposed drug counselling.
Surety
The respondent submits that the amount offered for a surety is insignificant considering the nature and seriousness of the offending, and the large quantity of unexplained cash seized at the time of the applicant’s arrest. Further, it is submitted that the amount is grossly disproportionate when compared with the $1 million surety provided on behalf of co-accused Mr Adam. As for the property Ms Hanson proposes to offer as a surety, it is submitted that this is tainted on the basis that the applicant is said to have used proceeds of crime to make payments for this property.
Accordingly, it is submitted that the amount put forward by way of surety does not come anywhere near what would be required to ameliorate the risk of flight, or non-compliance with other bail conditions.
Unacceptable risk
Failing to surrender into custody
The respondent asserts the applicant could flee to South Australia or overseas, relying on the following:
(a)That he has strong ties and has regularly travelled to South Australia where his in-laws reside;
(b)That he is believed to owe significant money to Albanian organised crime entities that he is linked to due to the significant amount of cash seized at the time of his arrest and the value of the drugs seized and intercepted by police;
(c)That he has shown he has access to large amounts of cash and unexplained wealth. This is evidenced through the significant amount of cash seized from the applicant’s car and home at the time of arrest, and his and his wife’s ownership of several properties through unexplained means. The applicant was recorded via telephone intercept throughout the course of the investigation talking about a house purchase and stating that it would ‘pay for itself in four months’, which the respondent submits would only be possible with proceeds of crime;
(d)That he has shown he has access to fraudulent identity documents. During the course of the investigation, the applicant directed his co-accused Adam (who was employed in disability work) to take photos of his clients’ identification and allegedly used that information to create fraudulent phone accounts. More generally, the respondent submits that members of Albanian organised crime syndicates – which the applicant is said to be linked to – have a methodology of using fraudulently obtained genuine documents to leave countries; and,
(e)That he may be extra-motivated to leave the jurisdiction due to the likelihood of deportation if convicted and following any sentence imposed.
The commission of further offences
The respondent submits that in circumstances where the applicant carried out and organised or sophisticated business criminal organisation, which provided him with income before his arrest, and in light of the fact he has no previous legitimate source of income, there is a risk the applicant will be tempted to go back to what he knows, namely drug trafficking.
Analysis and conclusions
The legal tests
It is common ground that the exceptional circumstances test applies to this application. The burden of establishing exceptional circumstances remains on the applicant. The burden of establishing the applicant is an unacceptable risk lies on the respondent.
The applicant has argued that he has satisfied the test, and further, that the respondent has not satisfied the Court that the applicant is an unacceptable risk such that he should be denied a grant of bail. The respondent argues to the contrary in both respects.
In making an assessment of whether the applicant has met the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been set out above. Further, I am well aware that the test can be satisfied by a combination of factors, observing that whilst relevant factors might individually be regarded as ordinary, when viewed together, may satisfy the test. Further, I have considered and applied the observations expressed in Roberts v The Queen[12] as set out by Lasry J in Re Strachan.[13]
[12][2021] VSCA 28, at [9].
[13][2021] VSC 538, at [28].
Exceptional circumstances
The applicant relied on the following factors in his argument that the exceptional circumstances test has been satisfied.
Delay
Acknowledging all the factors advanced on his behalf, the expected delay the applicant will likely face before his trial is resolved is put forward as the main supporting feature of this application. The applicant proposes at this stage to contest the allegations made against him, thus his innocence is to be presumed at this point of the proceedings.
Accepting at face value the applicant’s approach in contesting the charges, it is common ground between the parties that there will be a significant delay before the applicant’s trial is listed and heard in the County Court. His committal is listed for hearing on 1 June 2022. On the assumption that this hearing will take place, the applicant is then very likely to face a further delay up to 12 months, or even longer, before his case is heard. It is uncertain when the trial will take place. Counsel for the applicant submits that it could be as late as 2024, whilst the respondent argues some time in 2023, is more likely. Neither party has put forward the trial of this matter will take place in 2022. It is beyond argument that the effects of the COVID-19 pandemic have materially contributed to the delay that will be occasioned in this matter, for all the reasons that are now well understood, and require little further elucidation.[14]
[14]See e.g. Re JK [2020] VSC 160; Re Madden [2021] VSC 817; Re Glover [2021] VSC 822; Re Russell [2021] VSC 657; Re Taylor [2020] VSC 146; Re McCann [2020] VSC 138.
Furthermore, and as postulated by Niall JA in Re Peart, ‘delay is principally a forward looking question from today’.[15] Having said that, his Honour also regarded a particularly onerous and extensive period of delay that the applicant had experienced before the bail application as a factor to be weighed in assessing the existence of exceptional circumstances. In the present case, although the applicant has experienced five months custody since his arrest in September 2021, that period of time spent should be taken into account, particularly as it has occurred during the COVID-19 pandemic, however, in my opinion this period has only limited weight in the case of the applicant. Nevertheless, I have taken it into account.
[15]Re Peart 16/21/2021 at p 62
Of real significance in the present case is that there is a real prospect the applicant might spend between 1-2 years in further custody awaiting trial, having indicated that the charges are to be contested. That prospect is to be compared against the guiding principles set out in s 1B of the Act, including the right to liberty and the presumption of innocence.
Strength of prosecution case
I am required to make some assessment of the strength or weakness of the prosecution case, as amongst a number of other things in the assessment of whether applicant satisfies the exceptional circumstances test. The nature and quality of the prosecution case bears relevance to the impact of delay on the applicant, as discussed above. As well, such an assessment is relevant to the risk that the applicant may decide not to attend his trial.
As above, it is to be emphasised that the allegations put forward by the prosecution are as yet unproven. Accordingly, I have approached the assessment of this application on that basis. That observed, for the purposes of this application the Court can only form a broad view about the strength or weakness of the prosecution case. It is not the role of this Court to carry out a minute analysis of the case, as this application is not in nature of a trial of the issues. A deeper analysis of the case can be performed by the committal Magistrate, at which point the applicant’s remand, or bail circumstances, may come under review.
I have not examined the hand-up brief in the matter, and particularly, not had access to the telephone intercepted material. Accordingly I am obliged to rely on the material provided within the filed supporting documents, supplemented by the submissions of the parties. The prosecution case arises from a multi-faceted and lengthy police operation, entitled ‘Operation Deserving’. The case includes extensive overt and covert surveillance, and apparently a large amount of intercepted telephone conversations between the applicant and particularly the co-accused, Adam. Both men utilised multiple mobile telephones, some under different names than their own, with the use of pre-determined codes to describe the drugs being cultivated and sold, and what they were doing. Broadly, the case involves cultivation and trafficking, with the applicant at one stage attempting to obtain an importation of a large amount of cocaine.
The prosecution case is that the applicant’s offending was motivated by financial reward, and that he was in the business of large-scale cultivation and trafficking of cannabis, along with an attempt to obtain recently imported cocaine. The prosecution alleges the applicant had no other source of legitimate income, and his drug related activity was carried out to support his living expenses, and lifestyle. In this regard, police searches discovered significant amounts of cash and various amounts of drugs, providing support for the allegation he was engaged in a series of large scale drug cultivation projects from which trafficking would then, or had, taken place. The case involves four significant drug allegations, each of a commercial nature, with evidence of telephone usage and attendances at crop houses, suggesting the applicant had a very active involvement as a principal in the drug trafficking and cultivation operation.
When arrested the applicant was not prepared to provide his mobile telephone passcodes to allow police to investigate the usage of those phones, and later made a no-comment interview with police.
In my opinion, taking into account the allegations made, and in the absence of any evidence drawn to my attention which may point to a contrary narrative, at this stage the case against the applicant appears to be a strong one. Should the applicant be found guilty of some, or all, of the alleged offending, it is almost certain the penalty imposed will be a very significant custodial sentence, well exceeding the period spent on remand, should he not receive a grant of bail.
As above, along with all other relevant factors, the strength of the case against the applicant must be weighed along with the delay he will experience waiting his trial to happen. These are two powerful features pertaining to this applicant’s case. I am mindful however, that the allegations have not yet been examined in a curial context, which it must be assumed will happen in June this year at the applicant’s committal hearing. It is not to be forgotten that at this stage the presumption of innocence must apply, and in this regard, the Act specifically provides that this is a matter to be considered.
When considered together, the applicant is alleged to have been involved in a premeditated, well-organised drug trafficking and cultivation operation in Victoria, having moved from South Australia to Victoria to carry out the activity, which extended to an attempt to import drugs into New South Wales. In a conversation with Adam involving establishing truck company details in Sydney to be provided to the driver in the event he was stopped while crossing the New South Wales Victorian border, a comment was made that, ‘he will try it once or twice and see how we go’. Further, that the applicant and Adam would look after the driver and help him after his arrest. Telephone intercepted conversations suggest a close involvement of the applicant in this project.
As above, this aspect of the prosecution case involves allegations that the cannabis was secreted in a machine reflecting a significant degree of organisation and effort. Further, it is alleged the applicant had a part to play in obtaining the equipment in which the cannabis was secreted.
Taking all things into account, the applicant faces very serious charges.
Bail parity
Another matter which must be considered is the question of bail parity. The applicant’s co-accused, Adam, who faces a similar list of charges, and is also regarded as a principal, received a grant of bail from the Magistrate’s Court. It is pointed out that Adam has something of a criminal record, and that the applicant has not, and accordingly, no adverse bail history. Furthermore, from what I can assess, Adam is alleged to have played a very similar if not the same role in the alleged offending. Both are alleged to be highly placed organisers of the various projects undertaken.
The grant of bail to Adam was subject to strict conditions, including a surety amount of $1m, which I understand to have been provided against the value of his home. Given the similar circumstances pertaining to these two alleged co-accused, the applicant points to a sense of unfairness should he also not receive a grant of bail. I am of course not bound by the decision of the bail Magistrate, particularly if I thought it was an incorrect, or indefensible, decision. No information has been placed before me to suggest that the respondent lodged an appeal from that decision and sought a review of it. Further, the decision was not criticised in the application before me.
It might be observed that nothing was suggested that Adam had connections to any organised crime entities, and no suggestions were put forward that he was a particular risk of flight. Accordingly, some different considerations appear apply to him that may not have been relevant to the applicant. Nevertheless, I am obliged to consider the question of parity, and have regard to a sense of grievance on the part of the applicant should he not receive a grant of bail. Accordingly, I have taken this issue into account in forming the decision I have.
Risk of flight
In my opinion there is a lack of evidence for me to be satisfied there is a risk of flight by the applicant that should be regarded as reasonably open. I have taken into account all the circumstances put forward, and given particular consideration to the informant’s expressed concerns largely related to the type and seriousness of the alleged offending, the possible sentencing outcome, the applicant’s family connections interstate and overseas, and the discussions the applicant is said to engaged in regarding a false identity relating to the acquisition of mobile telephones. On the other hand there has been no evidence there have been discussions about taking flight on any recorded material, no evidence of preparations, and no historical adverse bail history that might add to the element of risk. As above, the applicant has no prior convictions. Further, he has relevant connections to the jurisdiction as evidenced by the marriage to his wife, his wife’s now presence in Melbourne, his in-laws, and property he has an interest in located in South Australia. Further, I am told he has employment available in Melbourne.
Furthermore, I have taken into account the evidence from the applicant’s wife, and proposed surety arrangements, with a static residential address in Spencer Street, along with reporting to police, and a curfew.
Having given the matter careful consideration, in all the circumstances I am satisfied the applicant has satisfied the exceptional circumstances test, justifying a grant of bail. I have come to that decision having considered the relevant surrounding circumstances, as I am required to do.
Unacceptable risk
Having concluded the applicant has satisfied the exceptional circumstances test that is not the end of the matter. I am required to consider whether the respondent has satisfied me that the application is an unacceptable risk in the relevant ways provided for in the Act.
In addressing unacceptable risk factors the respondent put forward the risk of flight as the central issue causing concern. In the course of the application that position appeared to also include an argument was to a risk that the applicant would commit an offence, or offences, while on bail. Irrespective of which position takes precedence, or is emphasised, it remains for the Court to come its own decision about the unacceptability or otherwise of possible risk factors. In this regard, it seems to me that a particular risk to be addressed is that the respondent may continue to commit similar offending. The applicant strikes me as intelligent, and capable, and appearing not be afflicted by significant mental health issues, or an addiction to drugs. The allegation against him is that he was in the business of large scale cultivation and trafficking, which self-evidently, involves a high degree of organisational skills, and planning.
The offending with which the applicant is charged, involves allegations of a continuing and persistent approach to his business model of cultivation and trafficking cannabis, as well as a later serious attempt to gain possession of an imported and large amount of cocaine. On the prosecution case, which I regard as strong, the applicant has shown a willingness to have a number of cultivating crop houses in operation simultaneously, and to have the wherewithal to manage multiple projects at the same time.
At the same time, however, the applicant has no prior convictions, and no history of violence, where it is demonstrated he presents a risk to any particular individual or members of the public more generally. In this regard, however, I do not forget that large scale drug activity of the kind alleged clearly has the capacity to harm those who choose to use the drugs provided to them by cultivators and traffickers.
I have given careful and anxious consideration to this aspect of the application. In the end I must be governed by the evidence, and in my opinion the evidence is not sufficient to satisfy me that the level of risk is unacceptable. I cannot engage in speculation or suspicion. Accordingly, with respect to the respondent’s argument that the applicant represents a risk of flight, and resulting failure to attend the hearing of his charges, as above, I am not persuaded there is sufficient evidence to support the argument put.
Taking all matters into account I am satisfied that the risk that attends the applicant can be ameliorated by the use of conditions on a grant of bail, including sureties, a strict residential requirement with nightly curfew, and a daily reporting condition to police. I have also relied on and taken into account the evidence on oath of the applicant’s wife as to her undertaking to inform the police should the applicant breach any of his bail conditions.
In the circumstances I am not prepared to order that the applicant wears a permanently affixed GPS bracelet. Furthermore, I decline to order the applicant attends for counselling as proposed to take place at the Lamberti Clinic. The applicant may well be a user of illicit drugs but I am far from persuaded that his day to day life is impacted in a significantly adverse way, given the suggestions of his involvement in the commercial drug operation alleged. I make the comment in passing that I regard the so-called professional report provided on the applicant’s behalf to be deficient in information, as well as deficient in explaining any detail of what the organisation proposes.
Bail is never risk free, and the decision to grant it involves an evaluation, and balancing, of competing factors. In the present case I am satisfied that risk can be ameliorated to an acceptable level, and that the applicant can be contained. Bail will doubtless be reviewed at the committal hearing when the evidence can come under more intensive analysis.
Accordingly the order of the Court will be that applicant will be admitted to bail on his own undertaking with two sureties in the total amount of $250,000 and on the following special conditions:
(a)He attend the Melbourne Magistrates’ Court on 3 June 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at any times specified by the Court and again surrender himself into custody.
(b)He reside at 5106/138 Spencer St, Melbourne, Vic, 3000 and not change that address without leave of the Court.
(c)He remain at those premises between the hours of 9:00pm – 6:00am each day for the duration of bail.
(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 within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(f)He report each day for the duration of his bail to the Officer in Charge or his delegate of the Melbourne West Police Station at 313 Spencer St, Docklands, Vic, 3008, between the hours of 9:00am – 6:00pm.
(g)He not contact, directly, or by any means whatsoever, Ayoub Adam, Salim Patel, Ali Sadeghi-Iman, and Bill Argyropoulos for the duration of the bail period.
(h)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(i)He possess and use only one mobile phone and provide both the phone number and PIN to the informant within 24 hours of possessing or using the phone.
(j)He notify the informant within 24 hours in the event that Ms Rebekah Hanson ceases to reside at 5106/138 Spencer St, Melbourne, Vic, 3000.
(k)He not leave the State of Victoria.
(l)He surrender any passport he may have to the informant within 24 hours and not apply for any other.
(m)He not attend any points of international departure.
(n)He reappear before the Court for judicial monitoring to review his compliance with this order at 9:15am on Tuesday 15 March 2022, and any further dates this Court appoints during the course of this order.
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