Re Schembri
[2017] VSC 722
•29 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0273
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by PAUL SCHEMBRI |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2017 |
DATE OF JUDGMENT: | 29 November 2017 |
CASE MAY BE CITED AS: | Re Schembri |
MEDIUM NEUTRAL CITATION: | [2017] VSC 722 |
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CRIMINAL LAW – Bail – Multiple charges – Trafficking a drug of dependence in a quantity not less than a commercial quantity – Charges of trafficking and possessing drugs of dependence, using false documents and dealing with property suspected of being the proceeds of crime – Requirement to show ‘exceptional circumstances’ – Whether exceptional circumstances made out – Relevance of no prior convictions and first time in custody – Relevance of availability of surety, family support and ties to jurisdiction – Strength of Crown case – Extent of delay - Exceptional circumstances not shown – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J Malobabic | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr H Rattray | Balmer & Associates Pty |
HIS HONOUR:
On 11 October 2017, the applicant was arrested and charged with trafficking in a drug of dependence (MDMA) in a quantity not less than the commercial quantity contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’). He was also charged with trafficking in a drug of dependence (two charges, MDMA and cocaine); seven charges of possessing a drug of dependence, including possessing MDMA, cocaine, GHB, methylamphetamine, steroidal agents and various tablets; six charges of using false documents in different names contrary to s 83A(2) of the Crimes Act 1958; and five charges of dealing with property suspected of being the proceeds of crime.
On 25 October 2017, the applicant applied to a magistrate for bail. The application was refused.
On 3 November 2017, the applicant filed an application for bail in this Court. Because the applicant is charged with trafficking a drug of dependence in a quantity that is not less than the commercial quantity applicable to that drug contrary to s 71AA of the DPCSA, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist which justify the grant of bail.[1]
[1]Section 4(2)(aa)(i) of the Bail Act 1977 (‘the Act’).
In his notice of intention to make application for bail, the applicant asserts that exceptional circumstances are made out on a combination of the following factors:
·no prior convictions;
·first time in custody;
·availability of substantial surety;
·family support;
·ties to the jurisdiction; and
·the applicant’s personal circumstances generally.
This morning, counsel for the applicant advanced two further matters which, in combination with the above matters, were said to give rise to exceptional circumstances. The two further matters are delay and the strength of the Crown case on the issue of the quantity of the drug the subject of the commercial quantity charge.
Applicant’s background
According to an affidavit sworn by the applicant’s solicitor in support of his application for bail, the applicant is 26 years of age.[2] The applicant was educated at Mt Eliza Secondary College, and then attended an undergraduate degree in business and commerce management at Monash University.
[2]For completeness, I note that the remand summary exhibited to the applicant’s solicitor’s affidavit states that the applicant is 27 years of age.
The applicant has four siblings. His father and siblings are supportive of his application, and one of his siblings has offered to act as a surety if the applicant is granted bail.
Prior to his arrest, the applicant resided with his partner in West Parkdale. The applicant’s partner is supportive of him and is willing to have the applicant return to their home should he be granted bail. From 2014 until the time of his arrest, the applicant was self-employed selling vitamin supplements. He has no prior convictions.
The alleged offending
The Crown case may be described briefly as follows. On 11 October 2017, police executed a search warrant on a storage unit in Lower Dandenong Road, Mordialloc. The storage unit was rented by the applicant’s partner on 22 January 2016. The applicant has attended the storage unit on over 200 occasions since 22 January 2016, all for short periods of time.
To gain entry into the storage unit, police had to cut a padlock. The key to this padlock was later found in the applicant’s personal possession. Once police gained entry to the storage unit, a search of the unit was undertaken. During this search, police located ‘an array’ of drugs of dependence including MDMA, methylamphetamine, cocaine, GHB and prescription drugs. Also located were various fraudulent Victorian drivers’ licences, in various names, bearing the applicant’s photograph. There were also visa cards and other forms of identification in false names. The false documents are alleged by the Crown to be ‘of a high quality’, and they are also alleged to have been used to create various fraudulent accounts.
The Crown case is that the storage unit appears to be set up as a mini office and distribution centre for drugs. There was a large box containing several thousand padded envelopes, a vacuum sealer, labels, scales and invoice receipts found in the storage unit. The Crown case is that the applicant was trafficking drugs from the storage unit ‘via the dark web’ and posting the drugs to customers with an attached invoice.
The drugs seized are alleged to include in excess of 700 grams of MDMA. There were also 15 resealable and vacuum sealed bags each containing cocaine. Several bags contained methylamphetamine and there was a small container of GHB. It is alleged there was also a large quantity of various prescription drugs (approximately 250 tablets) located in resealable bags.
Also seized during the search of the storage unit were mobile phones and multiple SIM cards believed to be used in the trafficking of drugs of dependence. Additionally, ‘numerous high quality counterfeit’ Victorian and interstate drivers’ licences in various names, bearing the accused’s photograph, were seized.
The applicant was arrested in a carpark and taken to his home. A search warrant was executed at the applicant’s home. Various items were seized, including $2,000 in cash, two vials of steroids and further counterfeit identification.
Subsequently, search warrants executed upon post office boxes held under false names, alleged to be used by the applicant, located additional quantities of drugs believed to be MDMA and cocaine.
The contentions of the parties
The applicant has no prior convictions. It is his first time in custody. The evidence discloses that the applicant has family support and ties to the jurisdiction. The applicant contends that all of these matters together with the applicant’s ‘personal circumstances generally’ constitute exceptional circumstances which justify him being granted bail.
The applicant also contends that, while not all of the substances seized have been analysed (approximately one third of what is contended to be MDMA is yet to be analysed), ultimately full analysis may show that the quantity of MDMA is less than a commercial quantity. Even if an amount just over the commercial quantity is found on analysis, the applicant contends that ‘mens rea issues may arise as to the applicant’s knowledge and intention’. The applicant submits that these matters diminish the strength of the Crown case on the commercial trafficking charge and, together with the delay that is likely to occur in this prosecution, and the other matters relied upon by the applicant, establish the existence of exceptional circumstances.
The respondent contends that there are no exceptional circumstances in this case. It is submitted that it is not exceptional ‘for those without prior convictions to be utilised in the drug trade’. In support of this submission, it is contended that people without prior convictions are utilised in the drug trade ‘because their past and current lifestyles tend not to attract suspicion from law enforcement’.
As to the strength of the Crown case on the issues relating to commercial quantity, the respondent submitted that it simply cannot be said at this stage that these elements of the Crown case are so lacking in strength as to give rise to exceptional circumstances. The analysis of the substances seized needs to be completed.
The respondent initially opposed bail on the additional grounds that the applicant was an unacceptable risk of further offending, interfering with witnesses, obstructing the course of justice and failing to answer bail. In that regard, the respondent pointed to the ability of the applicant to procure what are said to be high quality false identification documents. That said, this morning, counsel for the respondent accepted that, in the event exceptional circumstances were established, such risks as the applicant might otherwise pose could be dealt with by way of a substantial surety and strict bail conditions.
The resolution of this application
While the Act requires an applicant charged with trafficking in a commercial quantity of a drug of dependence to satisfy the Court that exceptional circumstances exist which justify a grant of bail, the Act does not define what are exceptional circumstances. It is trite however that, in order to be exceptional, 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, notwithstanding the very serious nature of the charge against him. Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[3]
[3]Jensen v DPP [2006] VSC 450 [40]; Re John McDonald [2010] VSC 217 [23]; Re Sam [2017] VSC 91 [22].
Notwithstanding all of the matters carefully argued on behalf of the applicant this morning, there are no exceptional circumstances in this case at this stage. The circumstances relied upon by the applicant are in no sense out of the ordinary. While the matters advanced on behalf of the applicant might be good grounds for granting bail if he was not in an ‘exceptional circumstances’ situation, they do not meet the requirement of being exceptional in any sense.[4] The delay likely to be experienced in this case is in no sense out of the ordinary. Moreover, it cannot be said that just because an incomplete drug analysis has not yet yielded a commercial quantity, the Crown case is so lacking in strength, on the commercial quantity and intention elements of the commercial quantity trafficking charge, that exceptional circumstances are established.
[4]Cf Re application for bail by Lim [2017] VSC 719 [15] (Coghlan JA).
Having concluded that the applicant has not established the existence of exceptional circumstances which justify the making of a bail order, it is not necessary for me to consider the respondent’s initial contentions that there was an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to his bail, commit an offence while on bail, endanger the safety or welfare of members of the public, or interfere with witnesses or otherwise obstruct the course of justice.[5] If I had been required to consider these issues, I would have concluded that such risks as might exist could be managed and ameliorated by the imposition of an appropriate surety (albeit in an amount greater than that referred to this morning)[6] and strict bail conditions.[7] In any event, exceptional circumstances not having been established at this stage, bail must be refused.
[5]See s 4(2)(d) of the Act.
[6]Counsel for the applicant referred to a sum of $150,000 that was said to be available.
[7]As to strict conditions see, for example, Easson [2017] VSC 565 [17].
Conclusion
The applicant’s application for bail will be refused.
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