Re Saputra

[2017] VSC 433

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0118

IN THE MATTER of the Bail Act 1977
v
IN THE MATTER of an Application for bail by BAMBANG SAPUTRA	Applicant

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2017
DATE OF RULING:	28 July 2017
CASE MAY BE CITED AS:	RE Application for Bail by Bambang Saputra
MEDIUM NEUTRAL CITATION:	[2017] VSC 433

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CRIMINAL LAW – Application for bail – Attempting to import commercial quantity of cocaine – Applicant prima facie entitled to bail under the Bail Act 1977 – Whether applicant ‘unacceptable risk’ of failing to answer bail – Parity with co accused, a number of whom were granted bail – Strong ties to the community despite absence of Australian citizenship – Conditions able to be imposed to reduce risk of absconding – Statutory presumption in favour of bail not rebutted – Bail granted – Bail Act s 4(1) – Criminal Code Act 1995 (Cth) ss 11.1 and 307.1.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I. Hill QC and Mr D. Hannan	Ondrik Larsen Lawyers
For the Respondent	Mr S. Moglia	Office of Public Prosecutions (Cth)

HIS HONOUR:

1. Bambang Saputra is a 29 year old applicant for bail.  His application is supported by affidavit material from his solicitor and members of his family.  The application is opposed on behalf of the informant.

1. On 1 June 2017 the applicant was arrested in New South Wales and charged that on 6-7 December 2016 in Victoria he attempted to import a commercial quantity of a border controlled drug, namely cocaine.  He was remanded in custody and extradited to Victoria. 

1. On 23 June 2017, following an application for bail to the Melbourne Magistrates’ Court, the application was refused on the basis that the risk that that the applicant would fail to appear to answer bail was unacceptable. 

1. It is common ground that pursuant to s 4(1) of the Bail Act 1977, the applicant is prima facie entitled to bail.  The onus of displacing that entitlement by establishing an unacceptable risk that the applicant would fail to appear in answer to bail lies with the respondent to this application.

1. The charges arise from operations conducted by the Joint Organised Crime Task Force between September 2016 and January 2017.  Two operations were conducted by the JOCTF known as Barada and Trapani.  They commenced September 2016 and concluded in January 2017.  The broad facts relevant to the applicant and several of his alleged accomplice were summarised by Weinberg AP in dealing with two related applications for bail (Youkhana [2017] VSC 406 and Tawfik [2017] VSC 405). Being two of the applicant’s most immediate accomplices.

1. The activity targeted by the investigation was the attempted importation by sea from China of 187.9 kilograms of cocaine on the ship Kaiyo Maru No.8 (KM8).  It is alleged that a boat was to travel from the Victorian coast and meet the ship at sea to bring the drugs ashore.

1. Separately from the crew of the KM8, the applicant and six other of his co-accused are alleged to have been part of what was occurring onshore.  This investigation fell under the title of Operation Barada.  That is alleged to involve anti-surveillance, assisting with the unloading when the drugs reached the shore and providing planning and logistics advice.

1. It would seem that between 1 and 7 December 2016, with the KM8 waiting, there were three failed attempts to bring the drugs ashore.  The activities were being monitored by listening devices and the evidence relied upon to incriminate the applicant consists of conversations between he and his accomplices, particularly two men named Tawfik and Youkhana to whom I have already referred.  They have both been charged and both made applications for bail.  Weinberg AP refused bail in relation Youkhana but granted it on strict conditions to Tawfik. 

1. It also appears that the evidence concerning the applicant which is captured on surveillance devices occurs on two days being the 6 and 7 December 2016 out of the total period of the investigation being over 5 months.  Be that as it may, it is not suggested that is the extent of his involvement.  The examination of the recordings continues and, as Weinberg AP observed in Tawfik (para 37), there will be ‘fertile room for dispute’ as to what was said and by whom.  Mr Moglia of behalf of the director has submitted that on the evidence as it stand the applicant played a significant role in this failed operation which was a $60 million drug importation.

1. When the applicant was arrested on 1 June 2017 phones and a laptop computer were seized.  A device scanner was seen but not taken. 

1. I am told there is the prospect of some delay with the next court date for the applicant in the Magistrates’ Court being a committal mention listed for 30 August 2017.  Presumably the committal will proceed with the others on 30 October 2017.  There is some dispute as to when a trial might occur.  To a degree that is speculative but I would assume the earliest date for a trial in the County Court would be mid-2018 and possibly later.  I note that during the hearing of the application, counsel for the applicant suggested it could be as late at 2019.  Whatever the delay, it is to be taken into account as it was by Weinberg AP in Twafik and I do so accordingly.

1. In relation to the risk of the applicant failing to answer bail if released, the informant relies on a number of matters.  First, the charge is a serious one and if found guilty a significant prison sentence is likely.  There could be no doubt about that.  Secondly, the applicant’s role was high level and he is claimed to be an organiser.  That, it is submitted by Mr Moglia for the Director, provides the applicant with a motive to flee.  Also, if convicted the applicant is likely to be deported back to Indonesia of which country he is a citizen.

1. It is also argued, against a grant of bail, that the applicant has the means to flee and avoid detection.  Further, being an Indonesian citizen with relatives in that country who would support him if he fled there, such a prospect is said to elevated.  He is also claimed to have links to the manufacture of false documents. 

1. However, a point fairly made on behalf of the applicant is that his accomplices were arrested in January 2017 and there was substantial publicity about those arrests.  As I have already noted, the applicant was arrested on 1 June 2017.  When arrested, he was at his home and it appears had made no attempt to leave the country or conceal himself.

1. I therefore turn to further aspects of the personal circumstances of the applicant because it is those that are at the centre of issue in this case.  Bearing in mind the ruling of Weinberg AP in Tawik, the issue of parity arises as described in the following terms by Gillard J in DPP v Abbott [1997] VSC 45:

Adopting that for a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.

1. Mr Hill QC for the applicant has submitted that, if anything, this applicant is in a more favourable position than was Tawfik.  That submission was challenged by Mr Moglia for the Director.

1. As I have said the applicant is 29 years of age having been born in Indonesia on 15 August 1987.  The evidence suggests he came to Australia at the age of 10 years and was cared for by his aunt and her husband and thus has resided in Australia for the last 19 years.  He is married to an Australian citizen and has resided in a property in Mascot owned by her for the past three years.

1. He has limited prior convictions.  In 2009 he was fined $200.00 for stating a false name and address.  In 2011 he was fined $2,400 for dealing with the proceeds of crime and possession of a drug of dependence.  He has no criminal history which involves non-compliance with bail conditions or failing to appear.

1. The applicant is apparently employed in his father-in-law’s transport business in Riverwood in NSW where he has been since 2014.  That employment is available to him if he is released on bail.  Indeed, the applicant’s father-in-law has filed an affidavit the effect of which is to confirm the availability of employment and the significance of the applicant in the running of the business.  That is connected with Mr Tran’s medical conditions and his unfitness for work.  In addition the applicant’s father-in-law also offers a substantial surety based on the equity in his family property. 

1. Counsel for the Director makes two points about that.  First during 2016 when the applicant was supposedly an important part of his father-in-law’s business he was in Melbourne at the casino gambling a large amount of money in the order of $200,000.00.  Indeed it is his access to such sums that Mr Moglia submitted added to the risk of the applicant absconding. 

1. However notwithstanding his Indonesian citizenship, he claims strong family support from members of his own family who are in Australia as well as his wife and members of her family, the details of which are deposed to in the affidavit material.  If released on bail it is proposed that he will reside with his wife at her premises in Mascot in New South Wales where he had been previously living. 

1. Further the applicant and his wife have been engaged in an IVF program and a positive pregnancy test has just been returned.  In a more recent affidavit filed on 25^th July 2017, the solicitor for the applicant relays information from the applicant’s wife about the effect of stress on her pregnancy which is apparently six weeks advanced.

1. It could not be said that the risk of absconding is absent.  There is some risk.  However in my opinion the imposition of the strict conditions proposed by the applicant, and to which I have added, will make the risk of the applicant failing to appear acceptable.  I am also of the view that the applicant’s circumstances and role in the offending are sufficiently similar to Tawfik to mean that if I refused his application for bail he would have a justifiable sense of grievance given the ruling Weinberg AP in Tawfik.  It is not suggested that his Honour’s ruling was in any way in error.  

1. I therefore propose to admit the applicant to bail on his own undertaking with a surety of $500,000.00 to appear at the Melbourne Magistrates’ Court on 30 August 2017 or such other date as the Court or informant require. 

1. I impose the following further conditions:

1That the applicant appear at the Melbourne Magistrates’ Court on 30 August 2017 or such other dates as the Court of informant requires;

2That the applicant reside at 49/629 Gardners Road, Mascot in the state of New South Wales;

3The applicant remain at that property between the hours of 9:00pm and 6:00am each day for the duration of the bail order;

4That the applicant present himself at the front door of that property between 9:00pm and 6:00am upon request by any member of the AFP or NSW Police Force;

I interrupt myself there to say I expect that condition to be imposed reasonably.  For example consecutive evenings during which the applicant is demanded to present himself at his front door at 2.00am in the morning would not be an acceptable set of circumstances.

5That until further order the applicant report daily to the Officer in Charge of the Mascot Police station or his nominee;

6That the applicant surrender any passport or passports that he holds of any description to the Informant within 24 hours of being admitted to bail and not apply for any other passport;

7The applicant not attend any points of international departure;

8The applicant will remain in the State of New South Wales and until further order, not leave that State except for the purpose of going to Victoria for the purposes of conferring with his lawyers or attending Court;

9That the applicant not attend any casino in New South Wales or Victoria until further order;

10That with the exception of the informant, the applicant not contact any witness for the prosecution in any way whether by phone, email or electronic messaging;

11That the applicant not communicate or receive any communication from any of those charged with offences in this matter in any way or for any purpose whether by phone, email or electronic messaging.