Re Pak

[2009] VSC 211

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1427 of 2008

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by MAKSUT PAK

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2009
DATE OF RULING:	18 May 2009
CASE MAY BE CITED AS:	Pak v R
MEDIUM NEUTRAL CITATION:	[2009] VSC 211

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Criminal Law – Bail application – Charged with trafficking – Charged with conspiracy to traffick commercial quantity – New and exceptional circumstances caused by delay - Unacceptable risk of  re-offending – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Gullaci	C. Marshall & Associates
For the Respondent	Ms W. Duncan	Office of Public Prosecutions

HIS HONOUR:

1. Bail will be refused in this matter and I will state my reasons.

1. Maksut Pak makes application for bail by notice dated 24 February 2009.  He has been charged with four drug offences, three of trafficking in Ice, GBH and Ecstasy and one count of conspiracy to traffick a commercial quantity of Ecstasy.  He strenuously denies the allegation relating to the conspiracy to traffick a commercial quantity.

1. As I understand it, the case would otherwise have come within the jurisdiction of the Magistrates' Court.

1. The alleged trafficking and conspiracy to traffick took place roughly between 20 June and 20 July 2008 and the applicant has been in custody since.  The evidence available against the applicant for each of those offences will depend on the contents of telephone intercept material.  The transcript of that material should be in the hands of the applicant's legal advisors by the middle of June.  The delay in the provision of that transcript material has meant that the committal mention and committal have been adjourned.  The committal is to take place in September 2009.  It is likely that any trial would not take place until well into 2010, more likely the second half of 2010.

1. The position of the co‑accused, Miriam Mustafa, has not yet been determined and neither has the question of whether or not she will be available as a witness against the applicant, a matter of some importance in relation to the conspiracy charge.

1. The fact that a trial would not take place until well into 2010 would mean that the applicant will be detained in custody for almost if not actually two years.  The fact that he may serve an outstanding sentence of one month for breach of a suspended sentence hardly alters that situation.

1. The applicant is on bail for trafficking in methylamphetamine between 10 February 2008 and 8 April 2008.  I am told that there is a committal mention for those charges in about three weeks; that is, early in June 2009.  The details of those offences, outlined by Sergeant Brett Williamson in his affidavit of 12 March 2009, are as follows:

At the time of these offences Pak was on bail for serious drug offences.  In April 2008 Pak was arrested as a result of a nine month drug investigation conducted by the clandestine laboratory squad of the Victoria Police crime department.  Pak was monitored conducting drug trafficking over a telephone intercept on his mobile phone and when arrested by police was actively cooking methylamphetamine in the house occupied by his partner and two small children.

Pak was charged with possess equipment for manufacturing a drug of dependence, trafficking in methylamphetamine and being a non‑prohibited person possessing handgun.

Pak was also charged over a second clandestine laboratory which was set up at his brother's address.

1. On 27 November 2008 the applicant was refused bail by Justice Harper of this court on the basis that he had failed to show exceptional circumstances.  His Honour also considered, without dealing with the matter in detail, that the applicant posed an unacceptable risk of re-offending.

1. The delay is now somewhat greater and the Crown has conceded that it is open for me to find new facts and circumstances.  The Crown argues, however, that exceptional circumstances have not been made out and that the applicant is otherwise an unacceptable risk of re-offending or of interfering with witnesses.

1. For my part I would accept that both new and exceptional circumstances do now exist.  This is principally because of the question of delay, but also in taking into account the whole of the circumstances of the case.

1. I am also prepared to accept that the applicant does not pose an unacceptable risk of failing to answer bail.

1. I would not be concerned with the proposed person acting as surety, or that the applicant if released on bail would reside at her address. 

1. The fact that he is unemployed and has little, if any, prospects of employment are  important considerations.

1. When the offending and re-offending involved in the two incidents are examined, I am satisfied on the balance of probabilities that the applicant is an unacceptable risk of re-offending whilst on bail.

1. I make no finding as to whether or not the applicant is an unacceptable risk of interfering with witnesses.

1. In the circumstances bail will be refused.