Re Pollard
[2021] VSC 315
•1 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0112
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by Mark POLLARD |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2021 |
DATE OF JUDGMENT: | 1 June 2021 |
CASE MAY BE CITED AS: | Re Pollard |
MEDIUM NEUTRAL CITATION: | [2021] VSC 315 |
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CRIMINAL LAW – Bail – Drug trafficking and other charges – Applicant on bail and subject to a community correction order at time – 29 year old applicant with substantial criminal history and poor bail history – Likely delay of 9 to 12 months in hearing of charges – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Nikolovski | WS Lawyers |
| For the Respondent | Mr A Singh | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant applied for bail in respect of the following charges he faces which were laid by the respondent Detective Senior Constable Nash:
· Trafficking in a drug of dependence (two charges);
· Possessing a drug of dependence (six charges);
· Dealing with unauthorised explosives;
· Handling stolen goods;
· Possessing identification information; and
· Resisting an emergency worker on duty.
It was agreed between the parties that the Court was required to refuse bail unless satisfied that exceptional circumstances existed that justified the grant of bail. This was because the applicant is accused of a Schedule 2 offence under the Bail Act 1977 while on bail for another Schedule 2 offence.
Having heard the application, I indicated that I was not satisfied of the existence of exceptional circumstances. Furthermore, I stated that even had I been so satisfied, I would have been satisfied that the applicant, if released on bail, would pose an unacceptable risk. I therefore refused the application for bail. I stated that I would publish detailed reasons for my decision at a future time. These are those reasons.
Procedural history
On 8 July 2020, the applicant was convicted of charges including attempted burglary, committing an indictable offence whilst on bail, contravening a conduct condition of bail, further dishonesty offences, driving offences and drug possession offences. He received an aggregate term of imprisonment on some of the charges, and a 12 month community correction order (‘CCO’) on others.
On 18 August 2020, the applicant was arrested and charged with theft, possessing a drug of dependence and fraudulent use of number plates. He was released on police bail. The informant was Senior Constable Courtney.
The offences the subject of the present application were allegedly committed on 23 February 2021 while the applicant was subject both to the CCO mentioned above and the grant of bail. The applicant was arrested and charged on 23 February 2021.
Bail was refused on the current matters in Geelong Magistrates’ Court on 22 April 2021 on the basis that the learned magistrate was not satisfied of the existence of exceptional circumstances and was satisfied that there was an unacceptable risk.
The matters are next listed for a contest mention in Geelong Magistrates’ Court on 8 June 2021.
Summary of alleged offending
At 4.30pm on 23 February 2021, police attended Unit 3 of 83 Donnybrook Road in Norlane to serve a firearm’s prohibition order on the applicant and to execute various search warrants.
The applicant was located by police in the garage of the unit. He immediately tried to run, but could not open the rear door. He then turned to face police in a fighting stance but was forced into the door and handcuffed without further incident. The owner of the property, Julie Meade, was home at the time.
Four fireworks were found inside a Subaru vehicle in the garage. Beside the Subaru, a black Louis Vuitton bag was located inside a plastic shopping bag. The plastic bag contained identification cards belonging to the applicant and various third persons and a ‘tab’ of Buprenorphine, and the Louis Vuitton bag contained:
· five bags of methylamphetamine, with a combined total weight of 12.5 grams;
· one bag of an unspecified amount of methylamphetamine;
· three bags of cocaine, with a combined total weight of 5.5 grams;
· eight Xanax tablets;
· eight oxycodone tablets;
· seven ecstasy tablets;
· numerous re-sealable bags; and
· a set of digital scales.
Paperwork and identification cards in the names of third persons were also located inside one of the bedrooms of the unit. It is alleged that the applicant was intermittently occupying that bedroom.
Further, a shotgun broken into parts and 20 grams of methylamphetamine were also located inside the unit. They are not currently the subject of any charges against the applicant, but investigations are ongoing.
The applicant was arrested and conveyed to Geelong Police Station. He did not participate in a police interview.
Ms Meade was interviewed and provided a statement to police, confirming that the Subaru was the applicant’s vehicle. This was also supported by the fact that Ms Meade’s vehicle was located on the street and further that the keys to the Subaru were located in the applicant’s pants’ pocket at the time of his arrest.
Further investigations in respect of the Subaru vehicle were supportive of the proposition that he was the vehicle’s owner.
Personal background
The applicant is 29 years old. He was born in New South Wales (‘NSW’) and was raised there by his parents until they separated when he was four years old. The applicant remained in NSW for some years with his mother, and at the age of 12 moved to Victoria to live with his father and brother.
The applicant left school at the end of Year 11 and has not engaged in any significant form of employment since then. He has been diagnosed with psoriasis, for which he is treated with medication.
Criminal history
The applicant has a lengthy criminal history which commenced in the adult jurisdiction in 2010 and comprises convictions for a wide variety of offending dealt with by way of at least 14 separate court appearances, principally in the summary jurisdiction, but including a County Court sentence on 2 February 2018 of 3 years’ imprisonment with a non-parole period of 18 months for attempted armed robbery and making a threat to kill. The criminal history of the applicant includes convictions for dishonesty, driving, drugs possession and weapons offences. He has convictions for failing to answer bail in 2010 and 2016, convictions for committing an indictable offence whilst on bail in 2016 and 2020, and a conviction for contravening a conduct condition of bail in 2020. He has also been convicted of failing to comply with a community based order (2012), breaching a suspended sentence order (2012 and 2013), and contravening a CCO (2013). The applicant has been sentenced to terms of actual imprisonment on no fewer than eight separate occasions.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
As already indicated, the exceptional circumstances test applied in this case. The applicant bore the burden in respect of that test. In determining whether exceptional circumstances existed, the Court was required to take into account the surrounding circumstances,[1] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]Section 4A(3).
If satisfied that exceptional circumstances existed, the Court was then required to apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail was required to be refused if the Court was satisfied by the respondent that there was a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk was an unacceptable risk.
In applying the unacceptable risk test, the Court was required to again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there were any conditions of bail that might be imposed to mitigate the risk so that it would not be unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J in DPP v Muhaidat[2] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[3]
[2][2004] VSC 17.
[3]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[4]
[4]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The applicant’s submissions
Mr Nikolovski for the applicant relied upon a combination of matters set out in his written outline of submissions and expanded upon in his oral submissions in support of the existence of exceptional circumstances in this case. These were:
a) Significant and inordinate delay. Mr Nikolovski did not attribute the likely delay to court hold-ups due to the COVID-19 pandemic, but, rather, the delay which would result from a wait for the results of fingerprint and DNA testing. The applicant had been in custody for 92 days by the time of the hearing of the application, and with a contest mention listed in early June, the contested hearing would not get on until late-2021 or early 2022.
b) Likely sentence to be exceeded by time spent on remand. Notwithstanding the serious criminal history of the applicant, he has no prior convictions for drug trafficking. In light of the sentencing range for offences of this type in the Magistrates’ Court, which Mr Nikolovski submitted would include a CCO at the bottom end, if the applicant remains in custody until late-2021 or early-2022 for a contested hearing, the period on remand may exceed the likely sentence he would receive upon conviction. Mr Nikolovski submitted that this factor of itself may amount to exceptional circumstances, but was relied on in combination with the other factors.
c) The availability of drug treatment for the applicant. The authorities have indicated that the previous CCO of the applicant would be able to recommence should he be released on bail, and the services previously available to the applicant under that order, including drug treatment, would be available to him. On the other hand, should he remain in custody, drug treatment services and courses would be unavailable due to COVID-19.
d) The prosecution case is relatively weak. As it was put by Mr Nikolovski, the incriminating items were found in a bag next to the applicant’s motor car, rather than in his immediate possession or inside the car itself. No forensic testing currently linked him to the items. Whilst his wallet containing identity cards was found in the same plastic bag which contained the Louis Vuitton bag containing the drugs and other items, there would be innocent explanations for this having occurred other than his being the owner of the entire contents of the bag. The owner of the residence had raised the possibility of the bag being the property of one or other of two individuals who had stayed at the apartment in the weeks before the applicant’s arrest. Furthermore, there was a signed statement from a friend of the applicant, Luke Osmond, claiming ownership of the drugs and other items. Mr Nikolovski submitted that whilst the prosecution case could not be described as weak, nor could it be considered to be ‘self-evidently compelling’.[5]
e) The harsh nature of conditions in custody due to COVID-19. In the end, Mr Nikolovski acknowledged that in circumstances where conditions in custody had largely reverted to normal by the time of the hearing, what he was pointing to in this regard was the fact that a 14-day quarantine requirement applies to new entrants into custody, and the fact that educational and other programs have not yet been resumed.
f) The fact that the applicant does not pose an unacceptable risk. Mr Nikolovski submitted, correctly, that the absence of a demonstrated unacceptable risk may be taken into account as one of the circumstances pointing to the existence of exceptional circumstances. He relied on a series of matters set out in detail in the outline in proof of the contention that the risk posed by the applicant was not unacceptable.
[5]Outline [4(d)(viii)].
Specifically on the question of risk, Mr Nikolovski submitted that the imposition of strict bail conditions in this case could ameliorate the risk posed by him to an acceptable level. He proposed a number of conditions.
I note that in the affidavit material filed on behalf of the applicant, and indeed, in the unsuccessful application for bail in the Magistrates’ Court, the applicant relied upon the apparent offer of full-time employment as a construction labourer with a company called Reconstruct, and a letter from Ryan Esler, a director of that company in support of that offer. Prior to the hearing of the application, enquiries by the respondent cast doubt on the legitimacy of this offer of employment. No reliance was placed by Mr Nikolovski on the availability of employment during the application.
The respondent’s submissions
Mr Singh for the respondent, in his written and oral submissions, challenged the applicant’s contention as to the existence of exceptional circumstances, and asserted that even if the Court was satisfied as to the first step in the two-step bail process, I should be satisfied that the applicant posed an unacceptable risk of all of the eventualities covered by s 4E(1) of the Act.
Mr Singh submitted that the alleged offending is inherently serious, with trafficking in a drug of dependence attracting a high maximum penalty and presenting a danger to the community.
As for the strength of the prosecution case, Mr Singh submitted that there is a strong circumstantial case pointing to the guilt of the applicant, and that the innocent explanations advanced in respect of the finding of the wallet of the applicant in a bag with the incriminating items were far-fetched and far from reasonable.
It was submitted that the criminal history of the applicant contains a number of very relevant recent convictions for serious offending Furthermore, he has a poor history of compliance with bail, and of compliance with dispositions of courts. In that context, the current alleged offending occurred when the applicant was subject to a CCO and a grant of bail.
On the question of delay, and the interaction between that factor and the likely sentence should the applicant be found guilty, if proven, the charges would warrant a lengthy term of imprisonment in light of their seriousness and the extent of the applicant’s criminal history. Any period on remand would be very unlikely to exceed the sentence passed.
In respect of the reliance placed on the availability of drug treatment for the applicant should he be released on bail, Mr Singh submitted that what was on offer was vague, and far from adequate in the circumstances. The report from the authorities indicated that the applicant has successfully completed a drug lifestyle program, and yet he was charged by the informant Courtney with possession of cannabis after the completion of the program.
Turning to the personal circumstances, associations, home environment and background of the applicant, Mr Singh submitted that the applicant has a history of disregarding orders of courts and grants of bail. He has a drug habit which contributes to his propensity to commit offences. As for the home address, while the address itself may be stable enough, there is little recent history of the applicant living there, and in circumstances where he would be living in a granny flat away from his father, his compliance with bail conditions would be entirely a matter for his own efforts, unassisted by any real supervision by his father.
Mr Singh submitted, in summary, that the circumstances relied upon by the applicant were not capable of amounting to exceptional circumstances.
Mr Singh went on to submit that even if the Court was satisfied of exceptional circumstances, there were clear factors pointing to the unacceptable nature of the risk posed by the applicant.
Analysis
The offending alleged against the applicant is serious, as was asserted by the respondent and conceded by the applicant.
As for the strength of the prosecution case, looked at in the circumspect manner required at this stage of proceedings, it is difficult to consider the case to be anything less than quite strong. It seems to me that the circumstantial case linking the applicant with the incriminating items in the plastic bag found alongside his motor car, which bag also contained the wallet and identifying cards of the applicant, may end up being a compelling one. Mr Nikolovski asserted that there may well be innocent explanations for the findings. Considered at this stage, in light of the surrounding circumstances, it is somewhat difficult to view such explanations as reasonable. In addition, the applicant sought to evade capture by the police.
The applicant has a lengthy and concerning criminal history. He has shown a propensity to commit crimes of varying types over many years. He has also shown an unwillingness to comply with and take advantage of the numerous relatively lenient dispositions he has received over the years, particularly in the earlier years of his contact with the criminal justice system. He has shown an apparent lack of respect for orders made by courts.
In respect of bail, again, the applicant’s previous history shows a lack of respect and regard for its strictures. He has repeatedly failed to comply with bail in a number of respects.
At the time of the alleged offending, the applicant was not only on bail, but was also subject to a CCO.
None of the above matters would justify any confidence that the applicant would be willing or able to abide by the sort of stringent conditions of bail proposed by the applicant.
The applicant is fortunate to have the support of his father, the availability of a place to live, and the offer of a surety of $10,000 offered by Mr Pollard. The fact is, however, that the applicant has had limited connection to his father’s home in recent years, having lived there for only a week or two about 18 months ago. No significant supervision is likely, and nothing about the arrangements would give any real comfort that the poor behaviour of the applicant over many years now will be modified.
As for the availability of drug treatment, the report from Geelong Community Correctional Services which was provided to the Court, under a heading, ‘Assessment and treatment (including testing) for drug abuse’, stated:
Mr Pollard has successfully completed this condition and reports to be living a drug free lifestyle. Mr Pollard is aware referrals for a second episode of treatment could be initiated if he felt the need for further support in areas such as relapse prevention whilst subject to this Community Corrections (sic) Order.
The above report bears the date of 8 October 2021, which is clearly incorrect. On its face, it was written as ‘an update to the Judicial Monitoring report dated 10 October and heard on 16 October 2020’. I was informed that the applicant took no steps after the completion of the drug treatment referred to in the report to seek any further treatment.
As long ago as 2011 and 2012, the applicant was the subject of CCOs containing conditions to deal with his drug addiction.
There was an absence of material before the Court indicating the nature of the applicant’s drug problem over the years, and for that matter, now, and what services would be best to enable him to deal with the problem, if it still persists. Nor is there anything to indicate that the applicant would be willing to accept assistance if it was on offer. In the circumstances, the possible availability of drug treatment under the umbrella of the pre-existing CCO was not an important matter in the bail application.
Turning to the interrelation between the likely time on remand should bail be refused and the likely sentence in the event the applicant is found guilty, this matter may be heard by late this year, meaning a period of nine months or so in custody. If the case is not heard until early next year, this period may stretch out to a year or so. This would be a significant period on remand, but not inordinately so. As for the likely sentence, Mr Nilolovski advanced a sentencing range which included at one end of it a CCO. If and when the applicant comes to be sentenced, however, in view of the serious criminal history he has accrued and the fact these events occurred when he was on bail and subject to a CCO, a sentence at the lower end of the sentencing range would seem to be out of the question. A significant term of imprisonment would be highly likely, and not one which would be exceeded by the time spent on remand.
Having considered all of the matters relied upon by the applicant, I was unpersuaded that exceptional circumstances existed that would have justified the grant of bail. Indeed, I was of the view that the applicant fell substantially short of surpassing that high hurdle. For that reason, bail would have been refused.
For completeness, I also indicated my clear view that had the applicant succeeded at the first hurdle, he would have fallen at the second. I was of the view that the respondent had succeeded in proving that there was an unacceptable risk of the applicant engaging in the conduct envisaged by s 4E(1) of the Act. For that reason, also, it would have been necessary for the application for bail to be refused.
Conclusion
The application for bail was refused for the reasons stated above.
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