Re Niyazi
[2021] VSC 556
•3 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0182
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by SERKAN NIYAZI |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2021 |
DATE OF JUDGMENT: | 3 September 2021 |
CASE MAY BE CITED AS: | Re Niyazi |
MEDIUM NEUTRAL CITATION: | [2021] VSC 556 |
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CRIMINAL LAW – Application for Bail – Trafficking in a commercial quantity of cannabis – Committing an indictable offence whilst on bail – Delay – Exceptional circumstances made out – No unacceptable risk – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Thomas | Fayman Lawyers |
| For the Respondent | Ms A Moran | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
On 20 May 2021 Serkan Niyazi (‘the applicant’) was arrested as a passenger in a motor vehicle being driven by his co-accused Jess Rodney Dunbar. Dunbar was the owner of the vehicle, which was registered to him in the state of Queensland. The vehicle was searched pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the following items were located and seized:
(a) One large Fox branded travel bag containing green vegetable matter believed to be cannabis packed in 20 individual vacuum-sealed packages located on the back seat of the vehicle;
(b) One unbranded travel bag containing vegetable matter believed to be cannabis in 20 individual and sealed packages located in the rear tray of the vehicle;
(c) One unbranded travel bag containing green vegetable matter believed to be cannabis packed in 20 individual and sealed packages located in the rear tray of the vehicle;
(d) One unbranded travel bag containing green vegetable matter believed to be cannabis packed in 20 individual and sealed packages located in the rear tray of the vehicle;
(e) $860 in cash located in a black wallet placed on the front passenger seat of the vehicle belonging to the applicant;
(f) $16,240 in cash located in a black bag placed in the rear passenger seat of the vehicle. The c-accused, DUNBAR, has claimed ownership of that money.
(g) Two empty, large, black travel bags in the rear tray of the vehicle.
The co-accused and the applicant were both arrested and taken to Sunshine police station. A search warrant was executed later the same day at the applicant’s then premises and a small amount of green vegetable matter was found. I do not consider it particularly relevant for the present circumstances. It will not make any essential difference to the other material for the purpose of weighing and the total quantity of the green vegetable matter is found to be 35.81 kilograms. That is greater than a commercial quantity, which is 25 kilograms.
The applicant was charged with trafficking a commercial quantity of a drug of dependence, trafficking a drug of dependence, possessing a drug of dependence, dealing with property suspected of being the proceeds of crime and committing an indictable offence whilst on bail (‘the informant Sarwar matter’).
That last offence arises as the result of the applicant having been charged on 17 March 2021 (‘the informant Briggs matter’) with cultivating cannabis, trafficking in a drug of dependence (two charges: cannabis and cocaine), possessing a drug of dependence (two charges: cannabis and cocaine) and dealing with property suspected of being the proceeds of crime (two charges).
The applicant was further charged in relation to events on 17 March 2021 with offences of theft, possessing controlled weapons without an excuse and possessing prohibited weapons without exception or approval.
It had been anticipated at one stage that there was a possibility that an application would be made for the revocation of that bail but in fact that did not ever take place.
The applicant made a pervious bail application at Melbourne Magistrates’ Court on 17 June 2021 and his application was refused on the basis that he failed to demonstrate exceptional circumstances.
The applicant’s co-accused was subsequently admitted to bail, the magistrate having found that exceptional circumstances did exist on the basis of delay. Although there is an apparent contradiction between those two propositions, it is not necessary that that be so. Delay could have itself, in a particular case, constitute exceptional circumstances. But in the totality of circumstances as they related to the applicant, that was found not to be so.
But there is some relevance insofar in a very limited way, parity has been found to apply and to have been a principle which operates in relation to the question of bail. I have never personally regarded it as a particularly significant matter but it is one of the matters to be taken into account.
The applicable legislation
It follows that among the circumstances that operate in relation to the applicant, he was on bail for what would have been Schedule 2 offences at the time that these offences are said to have been committed. Because he is in any event being charged with a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 (Vic) (‘the Act’), that is, trafficking in a commercial quantity of cannabis, he finds himself in circumstances where he must satisfy the Court that exceptional circumstances exist that justify the grant of bail.[1]
[1]The Bail Act 1977 (Vic), ss 4AA(1), 4A(1)-(2).
He would have in fact also have been subject to the exceptional circumstances for the commission of any Schedule 2 offence committed whilst on bail for a Schedule 2 offence. But I do not need to deal with that proposition.
If I am satisfied that exceptional circumstances have been made out, I would then have to consider whether or not the respondent had shown that the applicant was an unacceptable risk of either committing an offence on bail, endangering members of the public or endangering witnesses.[2]
[2]Ibid, s 4E(1)(a).
The alleged offending
In relation to the present offending, it can be summarised as follows. On 18 May 2021, the applicant made a phone call to the co-accused Jess Rodney Dunbar. That is a phone call between the two telephones as I understand the material at the moment, which lasted about six minutes.
On 19 May 2021, the applicant boarded a flight at 6.15 am from Melbourne to the Gold Coast before travelling back to Victoria on what is alleged to be the same day. The prosecution rely on CCTV footage from Melbourne Airport and call charge records associated with the applicant’s mobile phone number which are said to be consistent with those movements. The applicant’s name was not listed on the flight manifest, indicating that he travelled on an unknown name. Mr Thomas, who appeared on behalf of the applicant on the application, pointed out that there is no evidence of that proposition on the brief as the matter stands.
On 20 May 2021, Dunbar was observed by police driving a Nissan Navara utility with Queensland registration plates on The Esplanade, Caroline Springs. Police intercepted the vehicle and the applicant was sitting in the front passenger seat. Dunbar is the registered owner of the vehicle. The items I have set out above were found in the vehicle.
The applicant and Dunbar were arrested. Both of them effectively made no comment in their records of interview, though Dunbar stated that the large amount of cash belonged to him.
Forensic examination of the packages seized from the Navara, and the jar, determined the contents to be cannabis. DNA analysis and swabs taken from the handle regions of some plastic bags containing the cannabis exclude both the applicant and Dunbar as contributors, although it seemed to me, in looking at that material, as though the amount of material available for comparison was very limited.
The applicant
The applicant is 41 years of age and completed his schooling and subsequently undertook a diploma in international trade of Victoria University. He has a history of employment in retail work and as a courier and truck driver. In 2004, the applicant established a business Xtreme Rendering, with his younger brother. It continues to be operated and the applicant remains involved. A brief examination of the provided tax returns in relation to that business does not demonstrate that it was a source of great income for the applicant.
The applicant has an 11 year old child who is presently in the care of his parents. Prior to his arrest, the applicant shared custody of his son and cared for him after school each day until 7.30pm and each Saturday, but that position appears to have changed.
The applicant has a criminal history. For present purposes, the two main convictions are these:
(a) May 2012: convicted at the County Court of cultivating cannabis and sentenced to 8 months’ imprisonment which was fully suspended.
(b) October 2012: convicted at the County Court of cultivating a commercial quantity of cannabis and theft. He was sentenced to a total of 42 months’ imprisonment with a non-parole period of 2 years and 2 months. That sentence was later affirmed on appeal in the Supreme Court.
The applicant was subsequently released on parole in relation to that sentence and appears to have successfully completed that parole. It would follow that he has not been in trouble with the authorities in the time between the completion of that parole and the offences for which he was charged in relation to informant Briggs, having said to have occurred in March of this year.
Although it was submitted that the prosecution case is weak, I am not particularly satisfied that that is so in the way that it emerged in discussion with counsel. It is, however, a circumstantial case and the applicant cannot be criticised for his decision to seek to stand trial for this offending.
It is likely that in relation to his history on bail, that in relation to the May 2012 matters, the applicant had been on bail for an extended period of time. It appears that in relation to the October 2012 matters, that they were committed whilst he was on bail.
At the time of the informant Briggs offending in March 2021, the applicant was residing at [redacted] Caroline Springs. The items that give rise to him being charged were items that were found at that address where he was then living. And as I understand it, living there together with his younger brother.
The applicant proposes to reside with his parents at [redacted] Cairnlea. The applicant’s father has filed an affidavit, in which he says that the applicant’s son is in the primary care of him and his wife, that is, the applicant’s father and mother.
They are presently trying to home school the son, who is in Grade 6, and say that they are having difficulty in assisting in that task. It is put that the mother of the applicant’s son is not able to assist much in that regard.
The applicant has been offered full-time employment by Philippe Boudsocq, who is the manager of Datalec Technologies Pty Ltd, by letter dated 2 September 2021. He is a person who has known the applicant for 23 years.
The applicant has been involved in examination for the availability of CISP to assist him. In relation to the first report that was provided, dated 15 June 2021, he was not recommended for ongoing case management. In relation to a report which has been provided and dated 25 August 2021, he does have the support of CISP, who would make arrangements for him to do something about what he says is his substance use, which included cocaine, cannabis, non-prescribed benzodiazepines (Xanax) and alcohol. The applicant has said to CISP that he would engage in such treatment and programs as is recommended.
The applicant of course at the time of his arrest was subject to a 14-day quarantine period because of the present COVID pandemic restrictions existing in the prison system and he would be subject to such conditions as are applicable to prisoners under that regime. It has been recognised both by single judges of this Court and by the Court of Appeal in varying ways that the restrictions in custody of the requirements of the Chief Health Officer’s restrictions do operate heavily and adversely in relation to prisoners. And that of course is a matter to be taken into account.
The applicant’s father has offered a surety of $250,000 by way of equity in a property at [redacted], Deer Park. The applicant’s mother consents to that property being so offered.
The applicant’s submissions
The proposition put on behalf of the applicant is that the totality of the circumstances, but in particular the question of delay which I will now deal with, do amount to exceptional circumstances. It had been anticipated, in one sense somewhat surprisingly, that the committal of the applicant was due to take place on 7 September 2021, having been set down at committal mention on 17 August 2021. It was then listed on the basis that it would be about a two-hour committal that would involve two witnesses.
The Form 32, which was submitted on behalf of the applicant for the purposes of the fixing of the committal mention, set out a number of matters including the details of such witnesses who are being sought but in particular, it sets out the balance of the material sought on behalf of an accused person which has not otherwise been provided in the brief.
We do not have the details of what the basis of any public interest immunity claim would be, but as is the nature of what is requested under the Form 32, the request is a large body of material in the hands of the police. In going through that, the informant has come to the conclusion that although some of the material would be provided, there is other material about which public interest immunity would be sought. It is known at least in part that the arrest of the applicant appeared to be some part of an ongoing operation. But what the nature of the claims will be remains to be seen.
The difficulty about that, however, is that the material in support of the public interest immunity claim will need to be prepared and the possibility of that being prepared between now and 7 September is unlikely. But it is equally unlikely that in a committal which I have been told is set down to take two hours that those matters could be resolved during that period. It is a matter that almost certainly will not involve the prosecution but more likely involve the Victorian Government Solicitor’s Office. Applications for public interest immunity are usually supported by affidavit and all that material would have to be prepared.
These are matters that will be more certain as to how they are going to operate between now and next week but it seems to me likely, if not almost certain, that the matter will not be able to proceed next week.
It turns out that the second of the two witnesses who - in relation to whom leave is being granted will be on family leave between 1 October 2021 and 2 January 2022. Although the witness, Acting Detective Sergeant Rockes, had expressed the view that he thought that the informant would be able to answer any questions the defence might have about the Form 32 materials, the difficulty about that is, that until such time as the defence know what the material is it is very hard for them to make any concession about that. They are matters that might be discussed between the parties between now and next week.
The difficulty about delay is that if we look at the last published material from the County Court which of course is material that was published in July 2021, that is, prior to the most recent lockdown, it was expressed that in relation to new initiations in 2021, of which this is one, is that even if there was a committal this year it would be expected that the earliest the trial could be committed is between July 2022 and June 2023. If, however, the committal goes off until next year as well it might, the earliest dates that are being talked about are July 2023.
My own interpretation of the position that we are now in is such that we cannot proceed looking at those dates with any degree of certainty.
And it can only really be assumed that the position is likely to be worse, with there being real no possibility that it will be any better. So with my relatively pessimistic view about it, I think that the time for trial is more likely to be in the period of about three years, but certainly not less than two and a half years.
Whether I would find that delay was of itself exceptional, I do not need to resolve. It certainly does not fit the ready basis for exceptional delay on the basis that it would create a delay greater than any sentence that the applicant would reasonably be likely to be called upon to serve. If the applicant is convicted of these matters, he will, given his history, receive a reasonably significant custodial sentence likely to exceed any period of delay. But it is a very significant delay and it is delay of somebody who is on remand and under circumstances of the difficulties that arise under the present Covid restrictions.
I say that, in parenthesis really, in terms of what has happened in New South Wales and a number of prisoners having been infected in New South Wales prisons. The enforcement of the Covid restrictions in this state are going to be very careful indeed.
So we are faced then with the proposition of a delay which is significant, under circumstances that are difficult, together with a practical address at which the applicant can reside and the availability of the surety. These are matters that when taken as a whole, I am satisfied amount to exceptional circumstances. That leads me to the obligation of considering unacceptable risk.
Unacceptable risk
Mr Thomas frankly, and rightly conceded, that a court would need to proceed on the basis that the applicant was a risk and that arises quite directly out of the proposition that he had only on 17 March 2021, been released on bail for slightly similar, but not totally similar offending and because the only condition that had been imposed on that earlier bail was that he reside at a particular address. He was not therefore in breach of his bail conditions by going to Queensland.
Although it was not included in the conditions and therefore he is not in breach of his bail, it would be usual that people on bail are not permitted to leave the State of Victoria. As I observed in talking about the strength of the prosecution case, they are slightly peculiar movements in any event.
The question really of what risk it is that would be unacceptable, would be the risk of whether the applicant would commit further offences on bail. I do not think it is a serious concern that he would not answer his bail or that he would endanger the welfare of members of the public, except by committing further offences. As has already been said, he is undoubtedly a risk.
The question is whether or not I can ameliorate that risk by the imposition of conditions so that he is not an unacceptable risk. It is to be remembered in making that assessment it is not to say that he is an acceptable risk, it is to say that he is in the double negative sense, a not unacceptable risk.
I regard as quite significant in relation to how this applicant might be managed that he would live with his parents, although he was living with them at the time of this alleged offending, and that they are prepared to offer a surety of $250,000, which I regard as being a quite significant surety in the circumstances of the case.
I am obliged when considering unacceptable risk to take all the surrounding circumstances into account in exactly the same way that I am obliged to take them into account in the consideration of exceptional circumstances. On balance I am not satisfied it has been shown that he is an unacceptable risk and I will grant him bail.
It goes without saying that he will need to make sure that he keeps this bail, because he will not get bail from anyone else and I doubt that if he steps out of line in any way that any court would hesitate to revoke the bail.
Ruling
The court is satisfied that exceptional circumstances exists to justify the grant of bail and it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
The applicant will be admitted to bail on his own undertaking with a surety in the sum of $250,000 and on the following conditions:
(a) He attend the Magistrates Court of Victoria in Melbourne on 7 September 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [redacted], Cairnlea in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9.00pm and 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 report each day to the Officer in Charge of the Police Station at Sunshine, or his or her nominee, between the hours of 6.00am and 9.00pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed.
(f) He own or possess one mobile phone and provide that phone number to the Informant.
(g) 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.
(h) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
(i) He engage with The Court Integrated Services Program (CISP) and obey all lawful directions of CISP and undertake any treatment directed by them and attend any appointment arranged by them or in conjunction with them.
(j) He not contact, directly or indirectly, the co-accused, being Jess Rodney Dunbar for the duration of the bail period.
(k) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(l) He not leave the State of Victoria.
(m) He surrender any passport he may have to the informant within 48 hours.
(n) He not attend any points of international departure.
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