Re Schwarzenberg
[2021] VSC 710
•22 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0279
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by KENNETH SCHWARZENBERG |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 October 2021 |
DATE OF JUDGMENT: | 22 October 2021 |
CASE MAY BE CITED AS: | Re Schwarzenberg |
MEDIUM NEUTRAL CITATION: | [2021] VSC 710 |
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CRIMINAL LAW — Application for bail — Charges of trafficking in a drug of dependence and possession of a drug of dependence — Compelling reasons established — Unacceptable risk not demonstrated — Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Connell | Robertson Legal & Conveyancing – Lawyers Pty Ltd |
| For the Respondent | Mr S. McGinness | Victoria Police |
HIS HONOUR:
The applicant, Kenneth Schwarzenberg, applies for bail on eight charges brought by First Constable Robert McKinley, they being four counts of trafficking in a drug of dependence and four counts of possessing a drug of dependence.
The applicant has been remanded since 24 September 2021 when he was arrested and charged. He was refused bail on 27 September 2021 at Warrnambool Magistrates’ Court on the basis of being an unacceptable risk of committing a further offence whilst on bail.
The applicant filed a ‘new facts or circumstances’ bail application in the Magistrates’ Court on 29 September and that application remains in the list for hearing on 9 November 2021. In the meantime, on 15 October 2021, the applicant applied for bail to this Court in the hope of the matter being able to proceed earlier that the 9 November date.
The matter is next listed on 7 December 2021 at Warrnambool Magistrates’ Court for contest mention.
The alleged offending
The alleged offending may be described briefly in the following terms:
In March 2021, police commenced an investigation into the applicant and the co-accused, 21-year-old, Bayley Anwyl. The applicant is alleged to have sold or arranged the sale of drugs to covert police operatives on three occasions which were in April and September 2021:
i.One gram of cocaine for $350 on 24 April 2021;
ii.100 ecstasy tablets for $2,000 on 16 May 2021. The applicant's role in that transaction is said to be the facilitation of it; and
iii.One gram of MDMA for $200 and around 55 grams of cannabis for $560 on 18 September 2021.
The substances purchased by the police have all been analysed and their identities, weights and purity have been confirmed.
On 24 September 2021, police executed a search warrant of the applicant’s address in Port Fairy. The seized 0.38 grams of cocaine, two vials and eight small tablets of testosterone and three and a half tablets of Viagra.
The applicant was arrested on the same day and during his interview with police, made no comment to the trafficking allegations. He admitted the substances seized were his. On that day he was also charged with the three charges of trafficking relating to the transactions that I have already set out.
The applicable legislation
The applicant is charged with trafficking in a drug of dependence, which is a schedule 2 offence within the meaning of the Bail Act 1977 (Vic).[1] Bail must be refused unless the applicant shows a compelling reason exists justifying the grant of bail.[2]
[1]The Act sch 2, item 24(b).
[2]Ibid ss 4AA(3), 4C(1)-(2).
If however, the Court is satisfied of that proposition, bail must still be refused if the Court is satisfied by the respondent that there is an unacceptable risk the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act.[3] For present purposes, that really relates to the commission of further offences whilst on bail.
[3]Ibid s 4E(1)-(2).
The applicant’s personal circumstances
The applicant is 60 years old. He has been in a relationship with Khija Lee Dalton for approximately 12 months. He maintains a close relationship with Taylor Favelle, his stepson from a previous partner, and Mr Favelle’s 14 month old son whom the applicant considers his grandchild.
The applicant has a criminal history dating back to 1981. His most recent offending was in 2018 for contravening an adjournment order imposed in 2017 for careless driving. He has relevant convictions from 2010 for cultivating, possessing and using cannabis for which he received a $1,000 aggregate fine. That offending apparently related to a hydroponic system and three harvested cannabis plants located at his residence. Otherwise, the applicant's criminal history seems to be largely related to his dealings with Fisheries and Wildlife officers in relation to his occupation as a fisherman.
Applicant’s submissions
The applicant submits that since the documents regarding the covert operation are yet to be disclosed, there are triable issues in relation to the evidence of the trafficking allegations and its probative value. Further, the applicant did not make any admissions to these charges.
Putting the question of entrapment to one side for a moment, it is otherwise a strong case against the applicant and subject to the appropriate material being provided, it is likely to become and be maintained as a relatively strong case.
The applicant is supported by his family and he proposes to return to his Port Fairy home if granted bail. Ms Dalton, it is said in the affidavit of the applicant’s instructing solicitor, is willing to ensure compliance with the bail conditions and report any non-compliance. I will come to that matter shortly.
The applicant is a self-employed fisherman. The crayfish season commences in November. The applicant will be unable to earn an income, pay his employee, Mr Favelle, and meet his financial obligations for a boat he recently purchased if he remains in custody.
The applicant recently borrowed $55,000 from seafood wholesaler, Simon Chan, to purchase a boat for his business for a total of $66,000 from Anthony Cicconte. Mr Chan paid $55,000 to Mr Cicconte as the first payment for the boat on 15 June 2021. The applicant agreed to repay Mr Chan by filling Mr Chan’s Southern Rock Lobster quotas for the season with the first two tonnes of catch anticipated to repay the borrowed amount in full. The applicant has also spent $19,000 on a 1-tonne Southern Rock Lobster quota and 3,000 for craypots on his seasonal licence.
It follows that if he remained in custody at least until December that he would be unable to take part in the early part of the lobster-fishing season. My Favelle is employed by the applicant and deposes to not being sufficiently experienced to operate the business on his own. He relies upon the applicant for his training and his ongoing employment to financially support his own family.
In addition to those matters, it has been put that the applicant has numerous pets and livestock at his property which requires hours of maintenance per day. Mr Favelle and Ms Dalton depose to taking on this responsibility while the applicant has been in custody but it is causing a strain.
I have received a report from the Court Integrated Services Program (‘CISP’) which indicates that the applicant has the support of that program. At the moment, that is largely support which is not in-person but that may well change and there is a proposed program from CISP which would be of benefit to the applicant.
It was put on behalf of the applicant that there is likely to be a significant delay in the finalisation of these matters if it is contested – which as the matter presently stands was said to be likely. If it did go into the contested stream, it is hard to know what date would be obtained for the hearing of the matter.
At the moment, the matter cannot be heard before 7 December and I am satisfied on my analysis of the material that, even if the applicant were to receive a term of imprisonment, which I do not regard as certain in any event, he would be most unlikely to receive any period greater than the time he has already served on remand.
This is the applicant’s first time in custody, it has been distressing – particularly due to his mental health concerns. He reports being placed on suicide watch after consulting with a psychiatrist. The applicant has been assessed by forensic psychologist, Gina Cidoni, and a report from her dated 14 October 2021 was submitted on the application.
The applicant, of course, has been the subject to the quite onerous COVID-19 restrictions whilst in custody. In particular, the only contact with his family has been by electronic means. For all the matters set out above, I am satisfied that compelling reasons have been made out.
Unacceptable Risk
That causes me to consider the question of unacceptable risk. With cases such as these, one would be foolish to say there is not some risk of reoffending because of the types of financial pressures and other pressures that come on the applicant, but I am satisfied that with the imposition of appropriate conditions, that any risk which does exist can be addressed so that the risk could no longer be characterised as unacceptable.
Respondent’s submissions
The respondent conceded that it was clearly open to the Court find that compelling reasons exist, but still express concerns about the question of unacceptable risk. That unacceptable risk being based upon the applicant being a known substance-user and that the offending – although occurring on three isolatable occasions – did occur over a protracted period. In discussion with the Court, it seems to me that Mr McGinness accepted that if the appropriate conditions were applied, it would be open to the Court to grant the applicant bail and I intend to do so.
I should note that a number of matters raised in both the CISP report and in Ms Cidoni’s report indicate that the applicant has been suffering over a relatively long period of time from a series of undiagnosed psychiatric problems, which if now addressed might be to both his and the community’s advantage, irrespective of the question of his involvement in any criminal activity.
The bail will then be granted.
Ruling
The Court is satisfied that compelling reasons exist and it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
I indicate that I received an undertaking from Khija Lee Dalton, the applicant’s partner, that she will report to the informant any breach of conditions of bail by the applicant.
Kenneth Schwarzenberg will be admitted to bail on his own undertaking and on the following special conditions:
a) He attend the Warrnambool Magistrates’ Court on 7 December 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 2597 Princes Highway, Port Fairy Victoria 3284 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 4.00am 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 abstain from the consumption of any alcohol or drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
g) He provide a urine sample each Friday as arranged by the Port Fairy Medical Clinic, 28 Villiers St, Port Fairy and that the results of such tests be provided to the Informant.
h) He comply with all lawful directions of the Court Integrated Services Program (CISP) and attend all appointments as directed by them.
i) He comply with all lawful directions of psychologist, Gina Cidoni, and attend all appointments as directed by her.
j) He not contact, directly or indirectly, the co-accused, being Bailey Anwyl, 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.
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