Re Mm
[2020] VSC 691
•20 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0242
| IN THE MATTER OF the Bail Act 1977 (Vic) | Crown |
| v | |
| IN THE MATTER of an application for bail by MM | Accused |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2020 |
DATE OF RULING: | 20 October 2020 |
CASE MAY BE CITED AS: | Re MM |
MEDIUM NEUTRAL CITATION: | [2020] VSC 691 |
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CRIMINAL LAW – Application for bail – Charges of trafficking in large commercial quantity of a drug of dependence – Firearms offences – Availability of place at residential rehabilitation facility – Anticipated delay due to COVID-19 – Exceptional circumstances not established – Unacceptable risk established – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Phillip Dunn QC | Sarah Tricarico Lawyers |
| For the Respondent | Ms Ruth Champion | Office of Public Prosecutions |
HER HONOUR:
Introduction
MM (‘the applicant’) has been in custody since 10 July 2020 on suspicion of drug trafficking and related offending. He was charged by Senior Constable Christopher Hammond (‘the Informant’) on 11 July 2020 with:
(a) Charge 1: Trafficking in a drug of dependence in a quantity not less than a large commercial quantity, namely amphetamine, contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’);
(b) Charge 2: Attempting to traffick in a drug of dependence in a quantity not less than a large commercial quantity, namely amphetamine, contrary to s 71(1) of the DPCS Act;
(c) Charge 3: Trafficking in a drug of dependence in a quantity not less than a commercial quantity, namely amphetamine, contrary to s 71AA of the DPCS Act;
(d) Charge 4: Attempting to traffick in a drug of dependence in a quantity not less than a commercial quantity, namely amphetamine, contrary to s 71AA of the DPCS Act;
(e) Charge 5: Trafficking in a drug of dependence, namely amphetamine, contrary to s 71AC of the DPCS Act;
(f) Charge 6: Attempting to traffick in a drug of dependence, namely amphetamine, contrary to s 71AC of the DPCS Act;
(g) Charge 7: Possessing a drug of dependence, namely amphetamine, contrary to s 73(1) of the DPCS Act;
(h) Charge 8: Possession of a traffickable quantity of firearms contrary to s 7C of the Firearms Act 1996 (Vic)(‘Firearms Act’);[1]
[1]Pursuant to s 7C of the Firearms Act, if the applicant is found guilty of this offence, he cannot be convicted of charges 9 – 16, as noted by Ms Champion for the Crown during the hearing on 6 October 2020.
(i) Charges 9 to 12: Possessing a firearm as a prohibited person contrary to s 5(1) of the Firearms Act (four charges);
(j) Charges 13 to 16: Possessing an unregistered general category handgun contrary to s 7B (1) of the Firearms Act (four charges);
(k) Charge 17: Cultivation of a narcotic plant, namely 2 cannabis plants, contrary to s 72B of the of the DPCS Act; and
(l) Charge 18: Dealing property suspected proceeds of crime ($30,000 cash) contrary to s 195 of the Crimes Act 1958 (Vic).
The first seven charges comprise a range of alternative offences that relate to a quantity of white powder packaged in a plastic shopping bag and located in the rear of the Hilux utility driven by the applicant.
Charges 9 to 16 relate to possession of four different firearms found at the applicant’s premises during a subsequent search, none of which are registered to the applicant.
The Informant gave evidence at the bail hearing, and explained that a number of other suspected drugs and a very large quantity of ammunition were found during a search of the applicant’s home on 11 July 2020 (‘home search’), conducted shortly after the applicant’s arrest. However, police decided to defer laying charges for the additional suspected drugs and ammunition until all of the drug analysis was completed.
The Informant is expecting the drug analysis on the substance referred to in charges 1 to 7 to be completed by early November. No specific evidence was given as to whether that drug analysis would include analysis of the other suspected drugs found during the home search.
After his arrest, the applicant was remanded to appear at a Committal Mention on 7 October 2020 before the Melbourne Magistrates’ Court. Bail was refused in the Magistrates’ Court on the grounds that he failed to show exceptional circumstances for the grant of bail and posed an unacceptable risk that he would endanger the safety or welfare of any person.[2]
[2]Order of Magistrate McKenna (Melbourne Magistrates’ Court, 31 July 2020).
Circumstances of the applicant’s arrest and current charges
On 10 July 2020, Victoria Police received intelligence that a drug deal was to occur at the intersection of Cooper Street and Market Street, Essendon North. Police drove to the location and patrolled the area. They saw the applicant’s White Toyota Hilux utility positioned by the side of the road in Cooper Street. The only person in the vehicle was the applicant who was the driver. The applicant was intercepted after he pulled the vehicle out on to Cooper street, conducted a U-turn and turned left.
Police searched the Hilux utility and found a large quantity of crystalline substance (‘the seized substance’) in a Woolworths shopping bag, hidden between ladder rungs in the tray of the utility, directly behind the driver's area. Three mobile phones were also seized from within the passenger compartment of the utility. A further phone was located on the applicant’s person after he was taken into custody and searched. Later examination revealed that two of the mobile telephones were encrypted. Data recovered from the other two phones included a photograph of rifles displayed across a bed, an internet search of ‘Glock 22’ and references to drug manufacturing.
Preliminary tests conducted on the seized substance using a TruNarc Laser Device gave results indicative of the presence of sugar, but a subsequent ‘Marquis Reagent Spot Test’ was indicative of the presence of amphetamines or methylamphetamines.
Police obtained warrants to search the applicant’s home and on 11 July 2020 a search was conducted at his residence in Taylors Hill where the applicant ordinarily resides with his wife and young daughter.
The property was described as a three-bedroom, single storey home with a rear entertaining area, and a small garden shed at the side of the house.[3] The Informant described the home as ‘immaculately kept’,[4] and noted various high value items at the premises including a Jet Ski in the rear yard. There was also construction work being undertaken at the house. There was a Mercedes vehicle in the garage, which the applicant had apparently taken possession of after taking over repayments on the vehicle from the registered owner.[5] The informant was unable to verify a legitimate income stream to support the applicant's apparent lifestyle.
[3]Respondent’s Affidavit in Response to an Application for Bail, 1 October 2020, SPC 1, 2 (‘Affidavit in Response’).
[4]Transcript of Proceedings, Re MM (Supreme Court of Victoria S ECR 2020 0242, Dixon J, 6 October 2020), 28 (the Informant)(‘Transcript’).
[5]Affidavit in Support of Application for Bail, 23 September 2020, ‘ST-3’(‘Affidavit in Support’).
The following items were found during the search:
(a) Substances suspected to be illicit drugs or drug related equipment:
(i) Powder in zip lock bag in lower compartment of toolbox in entertainment area (suspected to be approximately 160 grams of cocaine);
(ii) GVM (green vegetable matter) in zip lock bag in upper section of toolbox in entertainment area. (Cannabis);
(iii) GVM in plastic wrapper in upper section of toolbox in entertainment area; and
(iv) Seeds in black tube in upper section of toolbox in entertainment area (Cannabis).
(b) Firearms and ballistic accoutrements:
(i) Winchester semi-automatic pump action shotgun in garden shed. Serial number erased. Capable of discharge;
(ii) Loaded Sig Sauer semi-automatic pistol in lower compartment of toolbox in entertainment area. Capable of discharge. Serial number visible;
(iii) Smith & Wesson semi-automatic pistol in lower compartment of toolbox in entertainment area. Capable of discharge. Serial number visible;
(iv) Browning single barrel semi-automatic shotgun (barrel sawn-off and stock removed) in lower compartment of toolbox in entertainment area. Not capable of discharge as missing parts. Serial number visible;
(v) 2 x silencers in the garden shed (one fitted a firearm found in the home, one did not);
(vi) HK (Heckler and Koch) firearm storage case containing a firearm manual in the garden shed. The applicant’s fingerprints were found to match prints lifted from several pages of manual;
(vii) Assortment of ammunition and magazine clip in the garden shed;
(viii) Various boxes of ammunition in a lock box in the garden shed (a key taken from the applicant opened this box);
(ix) 5 x rounds of ammunition in upper section of toolbox in the entertainment area;
(x) 61 x rounds of assorted ammunition in lower compartment of toolbox in entertainment area;
(xi) Loaded firearm magazine in lower compartment of toolbox in entertainment area;
(xii) Box of Browning ammunition located in lower compartment of toolbox in entertainment area; and
(xiii) 2 x boxes of assorted ammunition in lower compartment of toolbox in entertainment area (located in same drawer as paperwork addressed to the applicant).
(c) Cash:
(i) $15,000 cash in master bedroom (3 x bundles of $5,000); and
(ii) $15,000 cash in lockbox on passenger seat of Mercedes parked in garage (3 x bundles of $5,000).
The applicant does not hold a firearms licence under the Firearms Act, and is not authorised to possess, carry or use cartridge ammunition.
Ms Champion, who appeared on behalf of the respondent submitted that the applicant was a ‘prohibited person’ under the Firearms Act due to the fact that not more than 5 years had passed since he finished serving a term of imprisonment for relevant offending.[6]
6Pursuant to the definition of ‘prohibited person’ at s 3 of the Firearms Act. According to the applicant’s prior history, he was sentenced to 3 years imprisonment in November 2012, with 2 years suspended. As such, while he was released from prison on 14 October 2013 (according to his Remand/Sentence Summary, Affidavit in Support, ‘ST-5’), he would have been serving a sentence of a term of imprisonment (which is defined under s 3 of the Firearms Act to include a sentence that is wholly or partly suspended), until around October 2015, and so not more than 5 years had elapsed between the applicant finishing that sentence and the alleged offending taking place.
Ms Champion also pointed out that the applicant, if found guilty of possessing a traffickable quantity of firearms (Charge 1), could not also be found guilty for the other offences relating to possession of a firearm.[7]
[7]Pursuant to s 7C(2) of the Firearms Act.
During an interview which followed his arrest, the applicant did not provide any comment in response to police allegations.
The Informant gave evidence that forensic ballistics results have recently become available along with some, but not all, DNA test results. Phone data results have also been received from two of the phones. The drug analysis tests are incomplete at this stage.
Criminal and Bail History
The applicant has limited criminal history, but it includes relevant offending.
In 2008, he entered a six-month adjourned undertaking after pleading guilty to charges of possessing ecstasy and possessing cannabis. The undertaking required him to complete a ‘Positive Lifestyle Program’ with the Salvation Army. He complied with the undertaking, and the charges were accordingly dismissed in 2009.
In 2012, the applicant was sentenced to three years imprisonment, two of which were suspended, for offences of cultivating a narcotic plant in a commercial quantity (cannabis) and possessing methamphetamine. He was on bail for that matter until sentencing in 2012 and he complied with the conditions of bail.
The applicant’s subjective circumstances
The applicant is 33 years old and is the son of Lebanese migrants. He was raised in Melbourne as one of eight children.
He attended school in Thomastown until year 8, when he travelled to Lebanon to spend some time learning the trade of spray-painting cars. At 16, he returned to Melbourne, and commenced working in this trade. He has worked at various panel shops over the past 14 years.
In 2017, a business the applicant was involved in went into liquidation, causing him significant stress.
No information was provided regarding the applicant’s most recent employment.
Regarding his personal life, in 2012, the applicant was married, and he and his wife have one child together, born in 2014.
The applicant’s father died at age 64 in 2009 and one of his brothers also died in 2015. His mother resides in Melbourne and suffers from high blood pressure.
Regarding the applicant’s history of drug use, the applicant’s solicitor, Ms Tricarico, in her affidavit in support of bail (‘Affidavit in Support’), deposed that at 16 the applicant was using cannabis. The applicant began using amphetamines at 19. In 2008, he had treatment for drug use and urine drug screens were required as part of that treatment.[8] Prior to being remanded in custody for the current offences, he was consuming methamphetamine ‘every other day’, cocaine on weekends and Xanax nightly to sleep.[9]
[8]Affidavit in Support, [60].
[9]Ibid [61]-[62].
In the Affidavit in Support, Ms Tricarico said that the applicant had not had any ‘intense treatment’ for drug use in the past, but that he is ‘aware’ of the need for professional intervention and willing to engage in treatment.[10]
[10]Ibid [63]-[64]
Statutory tests applicable to the applicant’s bail application
Pursuant to the Bail Act 1977 (Vic) (‘the Act’) the applicant must establish that exceptional circumstances exist in order to justify the grant of bail[11] due to being charged with Schedule 1 offences.[12]
[11]The Act s 4A(1A).
[12]Specifically, trafficking in not less than a large commercial quantity of a drug of dependence (charge 1), attempting to traffick in not less than a large commercial quantity of a drug of dependence (charge 2), trafficking in not less than a commercial quantity of a drug of dependence (charge 3) and attempting to traffick in not less than a commercial quantity of a drug of dependence (charge 4). See the Act, sch 1, items 6(a)-(b) and 12.
Therefore, the Court embarks on a two-step process in determining the application. First, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances justify the grant of bail.[13] Second, even if satisfied by the applicant under Step 1, the Court must refuse bail if the respondent satisfies the Court under Step 2 that the applicant poses an unacceptable risk pursuant to ss 4D and 4E of the Act.
[13]The Act s 4A(1A).
Step 1 – the ‘exceptional circumstances’ test
In considering whether exceptional circumstances exist, the Court must take into ‘the surrounding circumstances’.[14] This includes all the circumstances that are relevant to the matter, including, but not limited to, those set out in s 3AAA(1) of the Act.
[14]The Act, s 4A(3).
In the bail application of Re Brown,[15] Lasry J summarised principles relevant to interpreting ‘exceptional circumstances’ in the context of applications for bail:
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.
Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[16]
[15][2019] VSC 751.
[16]Ibid [65] (citations omitted).
Unacceptable risk test
Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail, any or all of the matters captured by s 4E(1) would arise. In the present case the relevant category of risk relied upon by the respondent as posing an unacceptable risk, is the risk that the applicant would endanger the safety or welfare of any person.
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
The applicant’s arguments in favour of bail
The applicant relied on the Affidavit in Support,[17] written submissions put forward in support of bail[18] and evidence and submissions put forward during the oral hearing.
[17]Affidavit in Support.
[18]Dated 5 October 2020.
Delay
At the oral hearing, Mr Dunn QC conceded that the Crown case appeared strong,[19] but noted that a challenge would be mounted to the lawfulness of the search of the applicant’s vehicle and the alleged reasonable suspicion relied on by police. This would lead to a challenge to the admissibility of evidence that flowed from that search. The Affidavit in Support also adverted to a dispute as to knowledge and possession of the items in the Hilux utility and at the applicant’s home.
[19]Transcript, 2 (Mr Dunn QC). The Affidavit in Support conceded that the alleged offending was a ‘serious example’ of drug trafficking.
A committal mention was held the day after the oral hearing and the matter was set down for a two-day contested committal on 18 and 19 January 2021.[20] Mr Dunn QC had indicated that the completion of committal proceedings could be delayed by a subpoena seeking information as to police intelligence that triggered the interception of the applicant. This could result in public interest immunity issues being raised for determination in the court below, leading to delay in finalising the committal. However the Court notes that subsequent to the bail hearing as well as fixing a committal date, a date was fixed in the Magistrates’ Court for a special mention on 23 November 2020, at which time the potential subpoena issue can be discussed.
[20]Solicitors for the applicant advised the Court of the outcome of the Committal Mention by email on 7 October 2020.
Quite apart from possible delays in committal proceedings being finalised, Mr Dunn QC also relied on the probability of further delays before jury trials will be able to resume in the County Court and before a trial in this matter can be expected to be heard, due to the delays caused by the COVID-19 pandemic.
Ms Champion for the respondent, conceded that there will likely be protracted delay before a trial could be heard and said that on current reckonings the trial might be expected to be heard in term 2 of 2022 as an earlier estimated date, or term 1 of 2023 at the latest.
It was submitted on behalf of the applicant that the sort of timeframe adverted to by the respondent represented inordinate delay.
Nevertheless, both parties agreed that any pre-trial legal argument that might influence the direction of the proposed trial could lead to eligibility for emergency case management in the County Court of Victoria. This gives rise to the possibility of an earlier date for airing the challenge to the search of the vehicle and to the admissibility of evidence flowing from that search which might then result in those aspects being decided well in advance of any proposed trial date.
Nevertheless, delay was strongly emphasised by Mr Dunn as a factor relied on in combination with other factors, to establish exceptional circumstances.
The residential rehabilitation service
Mr Dunn QC also emphasised the availability of a form of confinement for up to 90 days at a drug rehabilitation and treatment facility: the DayHab Centre for Addiction Treatment (‘DayHab’) as an interim bail placement. If bail were granted, it was proposed that the applicant could return to the Court upon completion of the 90-day program. At that juncture a bail review, or bail variation could occur based on an assessment of the applicant’s conduct in the rehabilitation facility.
Mr Justin Vincent, Intake Assessment Officer for DayHab was called to give evidence in support of bail. His qualifications include a Certificate IV in Alcohol and other Drugs and a Diploma in Community Services. He has lengthy experience in his current role. He testified that Dayhab has been operating for 10 years, and for the last 3 years has operated as a private hospital for drug treatment purposes.[21] He had outlined the nature of the rehabilitation service in a letter that was annexed to the Affidavit in Support:
At DayHab we specialise in Forensic/Corrections treatment programs for clients who are experiencing difficulty with the law due to Alcohol/Drug Abuse and related offences.
Our Residential Program which include Group and Individual Therapy, Interactive Workshops, Clinical Assessment by our Chief Psychiatrist, Medical Assessment Aid for detox [sic]Needs, Health, Wellbeing and Mindfulness Sessions, Nutrition and Fitness training sessions.
All clients are supervised by trained and qualified staff 24 hours/7 days a week and CCTV is present in all Dayhab facilities. Clients do not have access to there[sic] mobile phones and other electronic devices during there [sic] inpatient stay and all client phone call's have to be approved by the manager then supervised by staff. Visits are fully supervised and are strictly limited to family only, if deemed appropriate. All clients participate in random Urine and Drug screens as part of there[sic] treatment. We give undertaking to contact the informant if there is a breach of Bail conditions or DayHab guidelines which may lead to discharge.[22]
[21]A letter dated 23 September 2020 from Dayhab annexed to the Affidavit in Support at ‘ST-7’, stated that it has a current certificate of registration with the Department of Health and Human Services in Alcohol or drug withdrawal (detoxification) and is recognised as a private hospital.
[22]Ibid.
During his evidence, Mr Vincent explained DayHab offers residential rehabilitation for between 28 to 90 days, although it can be extended for longer. The patients are supervised day and night. There is CCTV monitoring, and a support worker and nurse always on site.
Four-hourly head checks occur at night and the premises are secured. It is possible for patients to leave if they want to, but any departure would not remain undetected for long. The facility undertakes to contact the police informant if a patient who is bailed to the facility leaves, or is discharged from the program. Further, the facility can accommodate visits from police for compliance checks.
Mobile phones or electronic devices are not allowed, but the worker’s phones can be used by patients for permitted contact with family members or pre-approved contacts. No family visitors are currently allowed to visit on site, due to the pandemic.
The applicant had been interviewed and assessed as suitable for the DayHab program and could be housed at their Wantirna facility with daily transfer to the Glen Waverley facility for programme components. Supports at DayHab include weekly counselling, an aftercare program and weekly house meetings and random urine-drug screens.
Mr Vincent considered that the applicant has a serious addiction to amphetamines and cannabis and that significant emotional events in his life[23] had contributed to his addiction. He believed that the applicant was ‘quite authentic in his willingness to want to change’ and he was satisfied as to the applicant’s substance abuse history as a factor qualifying him for admission.
[23]Mr Vincent referred to grief and loss with the death of family members.
Mr Vincent told the Court that the applicant’s treatment would seek to address the ‘underlying core issue of addiction’, assisting him to create ‘healthy new behaviours for him moving forward’ and addressing any ‘unresolved anger’ that he might have, as well as dealing with ‘guilt and shame’, relapse prevention and self-defeating behaviours so that the applicant could have a ‘real understanding of what was going on in his brain’.[24] When asked whether the treatment would address his offending behaviours as well as his substance use, Mr Vincent said he believed the two were ‘tied together’ and ‘intertwined’. However, when asked about the connection between the applicant’s drug use and the alleged offending behaviour, Mr Vincent said it was not his place to ‘go into’ the applicant’s offending.[25]
[24]Transcript, 13.
[25]Transcript, 14.
The applicant’s family are prepared to fund the residential place at DayHab, and have put down a $9,000 deposit to secure a bed. The remaining fee, if the applicant undertakes the program, is $39,000, payable upon admission.
Mr Vincent explained that further support and treatment would also be available to the applicant at the conclusion of his 90-day program. There is the possibility of transitional housing, ongoing counselling, and an option for him to continue his treatment if needed. Mr Vincent could not give an estimate on how much further treatment would likely cost, as it would depend on the services required.[26]
[26]Ibid 15-16.
Hardship caused by conditions in prison due to COVID-19
The applicant submitted that the current health crisis and its ‘cascading effects on the criminal justice system’ form part of the surrounding circumstances to be considered under s 3AAA of the Act.[27]
[27]Citing Tong [2020] VSC 141, [33].
The Affidavit in Support referred to specific hardship experienced by the applicant including that the applicant ‘is locked in his cell every second day for 24 hours and currently has no access to programs or the ability to apply for any courses.’[28] The affidavit also stated that the applicant is currently in B yard which is sharing their yard with the quarantine unit. Further, that on top of the complete cancellation of face to face visits from family and friends, the applicant was said to have experienced ‘very limited telephone access’, removal of permission to have personal items delivered, and it was noted that there is a high demand on video link or telephone facilities making contact with legal representatives more limited, although box visits were available.
[28]Affidavit in Support, [73(d)].
The Affidavit in Support also referred to the rigours of the 14 day quarantine process which applied to the applicant when he first entered prison and the difficulties of maintaining hygiene to avoid the risk of infection with COVID-19. Hardship caused by concern and stress about the risk of COVID-19 entering the custodial setting was also referred to.[29]
[29]Citing Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
Whilst the precise details of the applicant's custodial conditions were the subject of further enquiry by the Court, the abovementioned impacts flowing from the COVID-19 pandemic were relied on (in combination with other matters) to establish the existence of exceptional circumstances.[30]
[30]Affidavit in Support.
The Court makes enquires of Corrections Victoria
As a result of the information in the Affidavit in Support regarding the custodial conditions experienced by the applicant, including the reference to the applicant being locked in his cell every second day for 24 hours, the Court, with the consent of the parties, sought information from Corrections Victoria about those matters and provided a copy of the Affidavit in Support to Corrections Victoria. This caused a degree of unavoidable delay in finalising the application, but in my view was necessary in order for the Court to proceed on a fully informed basis.
In response to the Court’s enquiry, the Assistant Commissioner (Sentence Management Division) Corrections Victoria,[31] Ms Jennifer Hosking, provided an affidavit dated 23 October 2020 (‘Hosking Affidavit’).[32]
[31]Corrections Victoria sits within the Department of Justice and Community Safety (DJCS).
[32]The affidavit was not sworn or affirmed due to working from home conditions in place in Victoria.
Ms Hosking stated that:
…on 20 March 2020, a joint decision was made by all State and Territory Commissioners and Chief Executives to suspend all personal visits from 21 March 2020, but professional visits were permitted to continue though as non-contact or box visits. This suspension was implemented in all Victorian prisons on 21 March 2020. The suspension will be lifted when the advice of the Chief Health Officer (CHO) of Victoria and federal and state authorities is that it is safe.[33]
[33]Hosking Affidavit, [6].
Ms Hosking also outlined the conditions that are currently in place for remand prisoners such as the applicant, stating that:
The prisons increased access to telephone calls, tablets and video connections with registered visitors, where possible, and encouraged prisoners to write letters. It depends on the prisoner's risk rating and placement, how easily telephones may be accessed. If the prisoner is in mainstream, telephones are easily accessible without escort. Prisons are running skype visits 7 days a week.
From 27 March 2020, Port Phillip Prison, Melbourne Assessment Prison (MAP) and Melbourne Remand Centre (MRC) introduced limited hours out of cell to reduce the number of prisoners being able to mix with each other, consistent with social distancing guidelines. All mainstream prisoners are receiving half their standard time out of cell, to reduce the numbers out of cell at any time and to ensure all prisoners are able to access telephones. Prisoners who are working, receive close to normal hours out of cell on the days they work.
From 28 March 2020 until further notice, all prisoners coming into the Victorian prison system are required to spend 14 days in a protective quarantine unit, regardless of their screening risk. This requirement will only be lifted when the advice of the CHO and federal and state authorities is that it is safe.[34]
[34]Ibid [7]-[9].
Regarding the specific conditions applicable to the applicant Ms Hosking stated that:
On 16 July 2020, [the applicant] was received into the Melbourne Assessment Prison. In the male prison system, each prisoner on reception undergoes a medical and mental health assessment conducted by appropriately qualified medical and mental health staff. Prisoners are also assessed for security rating and placement by Corrections' officers. Under the COVID-19 restrictions, [the applicant] was placed in protective quarantine in the William Mainstream Unit in a single cell.
On 21 July 2020, [the applicant] was transferred to the Ballan Mainstream Unit, MRC, still under protective quarantine and placed in a single cell. He had limited time out of his cell under the quarantine restrictions.
On 30 July 2020, [the applicant] was released from quarantine.
On 31 July 2020, [the applicant] was moved to the Burnside Mainstream Unit, MRC. The usual out of cell hours at MRC are 12 hours, but due to the COVID-19 restrictions to allow social distancing, the out of cell hours were no more than half that time, unless the prisoner was working. [The applicant] and other mainstream prisoners at MRC receive a minimum of 4.5 hours out of cell each day, and on most days they receive a greater amount of time.[35]
[35]Ibid [13]–[16].
Ms Hosking also stated that on 4 August 2020, a sentence management panel met with the applicant regarding his security rating and placement. She stated that:
…from August to late September 2020, [the applicant] was working in Metal Industries. (Remand prisoners are not obliged to work under the Corrections Act 1986, but may do so to earn a higher allowance.) Prisoners working at MRC work a 9-day fortnight, and receive additional hours out of cell on workdays, when his hours out of cell were at least from 8.30 am to 4.45pm.[36]
[36]Ibid [24].
Regarding courses available to the applicant Ms Hosking stated that ‘courses available to prisoners are limited as a result of COVID-19, with either smaller class sizes or some conducted as non-contact or video courses.’ She noted that there are generally fewer courses available for remand prisoners. She said that, ‘To be working in industries and later in the prison kitchen, [the applicant] must have completed the OH&S safety introduction course and the food handling course.’[37]
[37]Ibid [25].
Ms Hosking also stated that ‘from late September 2020, [the applicant] has worked in the MRC prison kitchen where his working hours are at least from 2.00pm to 6.35pm or from 8.20am to 4.45pm. Again, he works a 9-day fortnight. He has out of cell time each day he works in addition to his working hours.’[38]
[38]Ibid [26].
Regarding access to telephone calls Ms Hosking said that: ’Between 22 July and 7 October 2020, the defendant made 286 telephone calls, using the telephone most days and often making several calls in a day. As he works and is out of his cell longer than non-working prisoners, he has greater access to the telephones.’[39]
[39]Ibid [27].
In respect of personal and professional visits Ms Hosking said:
As with all prisoners' lawyers, the defendant's legal representatives are not restricted in booking video visits with him, but there may be a problem making bookings if they try to make them on short notice. His legal representative had video visits with him on 10 and 17 September 2020. [The applicant] had personal video visits on 12, 14, 23 and 29 August, 4, 6, 10, 12, 14, 22, 26 and 30 September, and 4 October 2020; a total of 13 visits by video.[40]
[40]Ibid [28].
As to the concern about sharing the yard with quarantining prisoners Ms Hosking said: ‘On 7 October 2020, [the applicant] was moved to the Albion Mainstream Unit, MRC where he remains. The Albion Unit is next to a protective quarantine unit, but prisoners in quarantine do not come into contact with mainstream prisoners, and the protective quarantine unit accesses another exercise yard from the one used by [the applicant].’[41]
[41]Ibid [30].
On the topic of delivery of personal items Ms Hosking said: ’Since personal visits were suspended, the delivery of personal items for prisoners at MRC were also suspended. All prisoners may request to have items posted into MRC, and each request is considered on its merits. These requests are fewer than pre-COVID-19, because MRC is providing prisoners with all prisoner uniforms (remand prisoners may wear their own clothing, but most only do so for court) and underwear.[42]
[42]Ibid [31].
Ms Hosking also provided information about hygiene measures and sanitation procedures in place at the MRC including in common areas which need not be set out here.
Regarding the crediting of emergency management days (‘EMDs’) in recognition of the hardship caused by emergency management conditions Ms Hosking said that:
Should prisoners be placed in extended lockdowns, Emergency Management Days (EMDs) under s 58E of the Corrections Act would be considered by the Secretary to the Department of Justice and Community Safety or her delegate. New grants are considered fortnightly and given appropriately, depending on the restrictions in prisons and the behaviour of prisoners. Though [the applicant] is a remand prisoner, he has received notional EMDs due to lockdown restrictions at MRC of 14 days for his protective quarantine and 50 days for his current time at MRC, a total of 64 days as at 29 September 2020. New EMDs are added fortnightly if the prisoner is still in the same conditions and is of good behaviour.[43]
[43]Ibid [38].
The parties were offered an opportunity to file further submissions or evidence after receipt of the information from Corrections. The applicant’s solicitor declined to file anything further and the respondent filed a brief submission summarising the import of Ms Hosking’s affidavit.[44]
[44]Respondent’s Submissions regarding Corrections Victoria Affidavit dated 16 October 2020, which I will make Exhibit R-2.
In summary, the outcome of the Court’s enquiry led the Court to conclude that the severity of the restrictions imposed on the applicant, and the degree of hardship experienced by him, did not rise to the level conveyed in the Affidavit in Support. Nevertheless, the Court accepts that the conditions experienced by the applicant do involve additional hardship as a result of the COVID-19 pandemic and that the loss of face-to-face contact with family members would be distressing, along with stress occasioned by fear of contracting the virus in prison. It is also accepted that for people in prison, access to legal representatives is almost always more constrained than for people who are at large, and the constraints are undoubtedly greater under the current restrictions caused by the pandemic.
Other factors relied on to establish exceptional circumstances
The applicant argues that, if granted bail, he is not a flight risk as he is an Australian citizen who is strongly supported by his family, including his wife and daughter.[45]
[45]Transcript, 49.
The Affidavit in Support mentions that a surety is available through a family friend of the applicant,[46] or from the applicant’s sister-in-law.[47]
[46]‘GP’.
[47]‘SMC’.
Submissions lodged on behalf of the applicant on 5 October 2020 (after the Affidavit in Support was filed with the Court) refer to the availability of a surety of $150,000.
No vive voce evidence was called from either GP or SMC, although I gather that GP was present for the oral hearing (on a virtual link) and was willing to give evidence. I have decided the application on the basis that a substantial surety is available to the applicant.
Mr Dunn QC summarised the position by saying that this is an unusual case because what is sought is a limited period of bail for 90 days to be reassessed after that time, and that the applicant would in effect be moving from one form of confinement of another. Also, that it was in the community’s interest for the applicant to be rehabilitated because of the positive benefits for the community if prisoners are rehabilitated in a therapeutic inpatient facility[48] as described in Robinson v The Queen.[49] It was submitted that these benefits apply even if the person admitted to bail is ultimately sentenced to a term of imprisonment.
[48] [2015] VSCA 161.
[49]Ibid.
Mr Dunn QC submitted that if the applicant is housed at the DayHab facility the risk of ongoing drug trafficking or access to, or possession of firearms is not likely to arise.
The bail application of Ning[50] was cited as an example of this Court recognising the extraordinary circumstances posed by the pandemic and the way in which it has impacted on court rosters, resulting in recognition of those factors in the determination of whether exceptional circumstances are met, or whether conditions can be imposed to mediate risk and render it acceptable.
[50][2020] VSC 609.
In summary, it was submitted that delay caused by the pandemic in the present case should, in combination with the other factors relied upon by the applicant, allow the exceptional circumstances requirement to be met. Further it was argued that the conditions of bail suggested by the applicant would render any risk that he poses, acceptable.
Respondent’s material in opposition to bail
The respondent argued that the case against the complainant involves allegations of high-level drug trafficking, together with possession of multiple firearms and large quantities of cash. The maximum penalty for trafficking in a large commercial quantity of amphetamine is life imprisonment and the offence is a standard sentence offence.[51]
[51]DPCS Act s 71.
In writing and orally it was submitted that the prosecution case is strong and that:
(a) the applicant attended the arrest location during a period of strict COVID-19 lockdown;
(b) to the extent that the applicant challenges the lawfulness of the vehicle search, police were provided with information that a drug deal was due to take place in a specific location informing the basis of a reasonable suspicion for the search of the applicant’s vehicle for drugs of dependence;
(c) regarding the search of his residential premises no other suspect appears feasible as the source of the items found there;
(d) the firearms located by the police included a loaded magazine;
(e) The absence of the gun relating to the empty HK handgun case, and the absence of a weapon that matched one of two the silencers was concerning. Similarly, there was an absence of any weapon that matched some of the ammunition. These factors in combination led police to suspect the existence of an unaccounted-for gun; and
(f) The applicant’s sister, NM has an extensive drug trafficking history and is subject to a firearms prohibition order. Right at the time of the applicant’s arrest, she was making repeated attempts to call him. Several other siblings have criminal and drug-related histories.
The respondent argued that the applicant’s reliance on a drug rehabilitation placement did not really address the applicant’s alleged offending. The evidence of the Informant was suggestive of the applicant funding his lifestyle through his criminal offending, rather than merely supporting a drug habit. The applicant did not appear to have a legitimate source of income to explain the extent of expenditure observed by the Informant at his premises.
The Informant gave evidence that the seized substance taken from the Hilux utility was weighed by him and found to equate to around two kilograms in weight, suggesting that evidence would support a charge alleging a large commercial quantity. Given that the applicant was in the process of transporting the substance in his vehicle just prior to his arrest, the prosecution case should be regarded as strong. It did not appear to be in dispute that the utility belonged to the applicant or that he was the driver at the relevant time.
Whilst the pandemic is likely to lead to delays in the applicant’s trial being heard, the gravity of the charges means that the anticipated delay is not of itself sufficient to amount to exceptional circumstances.
It was also argued that even if exceptional circumstances were established, the applicant posed an unacceptable risk of endangering the safety and welfare of any person because of the nature of the alleged offending behaviour, and the applicant’s apparent access to large quantities of drugs allegedly in his possession, as well as numerous firearms and a large amount of ammunition at his home. Trafficking drugs of dependence places the safety and welfare of members of the public at risk, and firearms are inherently dangerous, and the offending is alleged to have involved storage of items at the applicant’s home address. The suggestion of a 90 day residential facility left unanswered the question of how bail conditions could address the risk of re-offending after that time, given the Informant’s evidence that criminal offending appears to provide the applicant with a source of income.
Analysis
Step 1 – Do exceptional circumstances justify a grant of bail?
The delay in matters being finalised at trial as a result of the COVID-19 pandemic has led to consideration of general principles to be applied in the context of bail.
Beach JA in Re Diab,[52] stated that:
(1) Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
(2) The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4) In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.[53]
[52][2020] VSC 196.
[53]Ibid [38].
In El Nasher v DPP,[54] the Court of Appeal (Priest, T Forrest and Weinberg JJA) observed in respect of the COVID-19 pandemic:
[a]s the primary judge observed in Tong, the current health crisis and its cascading effects on the criminal justice system form part of the surrounding circumstances required to be considered by every bail decision maker conducting the two step test set out in s 4AA and following of the Act.[55] It remains just one of many factors that must be taken into account by a bail decision maker.[56]
[54][2020] VSCA 144.
[55][2020] VSC 141,[33].
[56][2020] VSCA 144, [42].
The Court also said in that case:
We should add that we specifically reject the appellant’s somewhat bold submission that in any case where there is a delay of the order apparent in this case [2.5 to 3 years], exceptional circumstances will, without more, be demonstrated. Each case will turn on its own facts and a decision maker will need to balance all of the relevant surrounding circumstances.[57]
[57]Ibid [43].
In that case, the appeal from a refusal of bail by Tinney J was successful due to a combination of factors that included the weaknesses found to exist in the prosecution case for attempted murder or related serious charges, and the fact that the applicant was likely to have spent up to three years in custody before his trial was completed. If acquitted of the major charges, as appeared ‘nigh on inevitable’ he ‘may well have served all or nearly all of any sentence that may be imposed on the ‘attempt’ alternatives or the minor charges (charges 5 to 8) before his guilt or otherwise on any of those charges is determined’.[58] This was considered by the Court to ‘weigh powerfully in the mix on the question of unacceptable risk.’ The Court also said: ‘If the case were stronger, or the delay less than anticipated in this case, then other factors pulling in the opposite direction would likely assume more significance in the s 4E exercise.’[59]
[58]Ibid [52].
[59]Ibid [52].
In Taylor v DPP[60] the Court of Appeal (Priest, T Forrest and Weinberg JJA) considered an appeal from a refusal of bail by Lasry J.[61] The applicant was charged with trafficking in a commercial quantity of Methylamphetamine together with firearms and other offences. The applicant had an extensive criminal history, unlike the present applicant who has only been before a court twice before, and Lasry J also noted a history of non-compliance with court orders. Further the applicant in that case was already on bail when he made his application to this Court.[62] The applicant in that case had also sought to be bailed to DayHab.
[60][2020] VSCA 142.
[61][2020] VSC 146.
[62]Ibid 2 [8].
Lasry J, found that exceptional circumstances were established due to delay caused by the COVID-19 pandemic, the impact of the pandemic on conditions for prisoners and the availability of a rehabilitation bed. His Honour noted that the Court had previously considered the availability of rehabilitation treatment ‘persuasive’ in establishing exceptional circumstances, but that it was not always sufficient to either establish exceptional circumstances or otherwise ameliorate risk.[63]
[63][2020] VSC 146, citing Rajic v R [2016] VSC 27; Re an application for Bail by Vasko Stankovski [2016] VSC 310; Re an application for bail by Fadi Afram [2018] VSC 708. See also: Re Nicholls [2020] VSC 189.
Ultimately, his Honour considered there were no conditions available to ameliorate the risk of the applicant endangering community safety and committing offences. It should also be noted that there was evidence before the Court in that case about the applicant’s Arunta calls which indicated that he was attempting to continue his drug trafficking activity whilst in prison, during calls to his partner. The Court of Appeal upheld the decision of Lasry J, finding that the circumstances compelled the conclusion that the applicant was an unacceptable risk of endangering community safety and committing offences. Regarding the weighing of the factors of delay and the availability of residential rehabilitation against the strength of the prosecution case and likely sentence, the Court said:
It might be acknowledged that the appellant has treatment under strict conditions available to him, but that is for 90 days only; following which, the appellant will — apart from the proposed surety — be left largely to his own devices in deciding whether to comply with bail conditions (including not committing any further offences). According to current information, the appellant’s committal can proceed on 12 February 2021, meaning that the appellant will spend eight or nine months in custody before the next stage in the prosecution can proceed. Although that may be thought to be an inordinate delay, should the appellant be convicted of the principal charges that he faces — and, as we have said, the prosecution case appears strong — we consider that the appellant will likely be sentenced to a custodial sentence, the length of which will far exceed the period of his remand.[64]
[64][2020] VSCA 142, [36]. I accept that despite both the applicant in this case, and the applicant in Taylor both proposed to attend DayHab, the ultimate proposal for bail in the case of Taylor v DPP differed from the bail proposal in this case.
Coming now to the application before me, I have given the matters relied on by the applicant careful consideration and I accept that the delay faced by the applicant as a result of the COVID-19 pandemic is likely to be lengthy. Counsel for the Applicant submitted further that proceedings could be also be delayed due to complex subpoena/public interest immunity argument regarding the search of the applicant’s vehicle. This kind of delay would arise regardless of the COVID-19 pandemic, and so I do not consider that it adds significantly to the determination of exceptional circumstances in this case. However, that is not to take away from the delay occasioned by COVID-19.
I accept that conditions experienced in custody because of the pandemic are more oppressive than would ordinarily be the case for a remand prisoner, although I note that having read the Hosking Affidavit, I am not persuaded the conditions are as onerous as described in the Affidavit in Support. I accept that there are fewer programmes available in prison than might otherwise be the case and that there are currently no face to face visits. Uncertainty about the risk of COVID-19 entering and spreading within the prison is an added stress, although thus far Corrections Victoria have been able to manage this risk well.
I also accept that the availability of an interim place at a supervised residential facility is matter that contributes favourably to the mix of factors relevant to the exceptional circumstances test along with the applicant’s somewhat limited prior criminal history, and his prior compliance with bail conditions when facing drug charges in the past. The availability of a surety and the applicant’s family ties are also matters that are favourable to him.
On the other side of the coin is the fact that, despite having previously served a prison sentence for serious drug offending, the applicant is before the courts again charged with serious drug offences. Indeed, the drug trafficking charges combined with the firearms charges and evidence relied on in support of these charges represent a profoundly serious scenario.
The firearms charges imply a sinister aspect to the applicant’s pre-arrest lifestyle and activities, involving four separate weapons, one of which is a cut down weapon, one of which is a pump action firearm which has had the serial number erased. These weapons were alleged to have been found with a very large quantity of ammunition, a loaded magazine, and two silencers. It is also alleged that the applicant was a prohibited person at the time of his arrest. Whilst the applicant is entitled to the presumption of innocence, in assessing bail, the Court looks to the strength of the evidence relied on to support the charges and in the present case the evidence appears objectively strong. This does not appear to be a case where the length of time on remand would exceed the sentence that could be expected to be imposed if the major charges result in convictions. In light of this, despite the fact that I accept that it is highly likely the applicant’s trial will be delayed by the COVID-19 pandemic, I am not persuaded that that factor, along with the other factors relied upon, are sufficient to meet the exceptional circumstances threshold in this case.
Further, despite the availability of a rehabilitation placement, I accept the respondent’s submission that the link between the alleged offending and the applicant’s drug use/habit is not well established, on the basis that the alleged offending appears to involve a financial motivation rather than merely being motivated by drug addiction.
Ultimately, I have concluded that the material relied on to meet the test of exceptional circumstances, falls short of meeting that test.
Step 2 – Is the risk of granting bail unacceptable?
Even if I am wrong and the test for exceptional circumstances is met in the present case, I consider the applicant poses an unacceptable risk to the safety or wellbeing of others in light of the nature of the activity he is alleged to have been engaged in, and the material allegedly in his possession and at his home. Had the respondent also submitted that the applicant posed an unacceptable risk of committing further offences while on bail,[65] I would also have been satisfied that unacceptable risk was made out on that basis.
[65]Bail Act, s 4E(1)(a)(ii).
The respondent’s case is that despite having been previously imprisoned for cultivation of a commercial quantity of cannabis, and despite the strict measures imposed on the citizens of Victoria by the emergency management lockdown in response to the COVID-19 pandemic, at the time of his arrest the applicant was out and about in the community and actively engaged in serious criminal activity. He was away from his home when he was apprehended, and is alleged to have been transporting up to 2 kilograms of a substance containing amphetamine or methamphetamine in the tray of his ute.
In El Nasher v DPP, the Court of Appeal said:
What constitutes an acceptable risk (or conversely, an unacceptable risk) will always be a question of fact and degree. There are 14 variables in s 3AAA (‘surrounding circumstances’) that must be considered, together with subsets within some of those variables; the weight given to those variables and their interaction with each other will vary from case to case. The end result will be a product of an informed, intuitive evaluation, and reasonable minds may well differ on that result.[66]
[66]Ibid [51].
I am not satisfied that the conditions proposed by the applicant would be adequate to prevent him posing a risk to the safety of others.
Bail is therefore refused.
The Applicant’s unnecessary transport to Court on 7 October 2020
Before concluding these reasons for my decision refusing bail, I wish to note one further matter.
When the Court foreshadowed with the parties that it sought to make an enquiry of Corrections Victoria about the applicant’s custodial conditions, the applicant’s solicitors raised a further concern. It was stated that on 7 October 2020, he had been brought to Melbourne Magistrates’ Court (‘MMC’) for a committal mention rather than being video-linked from the MRC to the MMC. Upon attending the cells of the MMC he was not ultimately brought before the court in person. On return to the MRC, he was required to undergo a further 8 days of quarantine.
This information caused the Court to seek an explanation about what had occurred. An explanation was provided by Ms Hosking that when the Sentence Calculation and Warrant Administration Unit received a remand warrant for the applicant on 31 July 2020 remanding him to appear at MMC on 7 October 2020, no declaration was provided that the matter would be as a video link. The case was never converted to video link, as had occurred in most other cases after the COVID-19 pandemic struck.
The circumstances which occurred appear very regrettable. The Court wishes to impress upon all agencies concerned with prisoner movements that every available step should be taken to avoid such events in the future[67] especially if the outcome is that prisoners who are already experiencing considerable hardship due to emergency management conditions are exposed to greater hardship or a greater level of risk of exposure to COVID-19.
[67]The exception being where the Court orders in person appearance or the prisoner requests such and the Court approves it.
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