Re Taylor
[2024] VSC 233
•8 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0077
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by Robin TAYLOR |
---
JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2024 |
DATE OF RULING: | 8 May 2024 |
CASE MAY BE CITED AS: | Re Taylor |
MEDIUM NEUTRAL CITATION: | [2024] VSC 233 |
---
CRIMINAL LAW — Bail — Applicant charged with one charge of trafficking in a commercial quantity of drugs of dependence, nine charges of trafficking in a drug of dependence and 18 charges of dealing with proceeds of crime — Required to show exceptional circumstances — Relevant criminal history — Six of the nine trafficking charges do not disclose an offence known to law — Strength of prosecution case on principal charge insofar as proof of a commercial quantity is required — Exceptional circumstances established — Unacceptable risk alleged — Whether applicant is an unacceptable risk of endangering the safety or welfare of any person by further offending and/or failing to answer bail — Risk not unacceptable if granted bail on strict conditions — Application granted — Bail Act 1977 (Vic) ss 3AAA, 4AA & 4E; Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 70, 71AA(1) & Sch 11; Taylor v The Queen [2020] VSCA 50.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Hogan | Office of Public Prosecution |
| For the Accused | Mr J Dickinson KC with Mr S Tovey | Melasecca, Kelly & Zayler |
HER HONOUR:
Introduction
Robin Taylor (‘the applicant’) applies for bail on the following 28 charges:
(a) Traffick in a commercial quantity of drugs of dependence (one charge);
(b) Traffick in a drug of dependence (nine charges); and
(c) Deal with proceeds of crime (18 charges).
At the time of the alleged offending, the applicant was serving a three year suspended sentence imposed in the County Court on 19 August 2022 for a single offence of trafficking in a drug of dependence.
It is common ground that the applicant must establish that exceptional circumstances exist justifying his admission to bail. Pursuant to the Bail Act1977 (Vic) (‘the Act’), the exceptional circumstances test applies via two pathways. One, trafficking in a commercial quantity of a drug of dependence is a Schedule 1 offence.[1] Two, trafficking in a drug of dependence is a Schedule 2 offence,[2] and the applicant is charged with nine Schedule 2 offences alleged to have been committed while he was serving a sentence for a Schedule 2 offence.[3]
[1]Bail Act1977 (Vic) Sch 1 Item 6(b); s 4AA(1) (‘the Act’).
[2]Ibid Sch 2 Item 24(b).
[3]Ibid s 4AA(2)(c)(v).
Alleged offending
The applicant is the owner and director of Melbourne Sports Medicine & Anti‑Aging Clinic (‘Clinic’) in Moonee Ponds.
The applicant is not a qualified medical practitioner. It is alleged that he used the Clinic as a front to sell a variety of prescription drugs — specifically, drugs commonly misused for bodybuilding purposes — without the requisite authority or licence to possess or traffick those drugs.
During February and March 2024, covert surveillance operatives observed 12 people on different occasions attending the Clinic and then exiting with shopping bags. The applicant was observed to be inside the Clinic when this occurred.
On 28 March 2024, police executed search warrants at the Clinic; the applicant’s home in Yarrambat; and a warehouse owned by the applicant in Somerton.
At the Clinic, it is alleged that police located various drugs of dependence, including testosterone, human growth hormone and hexadrone. Blank prescriptions with the details of a ‘Dr Shabani’ were also located. In total, it is alleged that police located anabolic steroids consisting of over six litres of liquid (in vials) and over 7,000 tablets, including testosterone, phentermine and ‘steroidal agents’.
At the applicant’s home in Yarrambat, police located a vial of selective androgen receptor modulators (a prescription medication which mimics the effects of testosterone and anabolic steroids), and prescriptions in the applicant’s name for testosterone and an antibiotic.
At the applicant’s warehouse in Somerton, police located:
(a) $816,809.40 cash in a safe;
(b) 17 luxury/vintage cars with an estimated value of over $3,000,000.00;
(c) receipts, daily takings reports, bundles of cash takings, and patient records from the Clinic, which indicated takings of over $100,000.00 a week; and
(d) the applicant’s mobile phone, containing messages to pharmacies regarding the collection of drugs.
The applicant was arrested on 28 March 2024 and interviewed. He admitted to being the owner of the Clinic, but made no further comment.
Procedural history
On 29 March 2024, the applicant was refused bail at the Melbourne Magistrates’ Court.
The matter is next listed for a committal mention on 21 June 2024 at the Melbourne Magistrates’ Court.
Legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Act.
As set out above, bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail. In considering whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in s 3AAA(1) of the Act.[4]
[4]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the unacceptable risk test.[5] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[6] In considering whether any relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[5]Ibid ss 4A(4), 4D(1)(a).
[6]Ibid s 4E(1)–(2).
[7]Ibid s 4E(3).
The applicant
Personal circumstances
The applicant is 54 years old. He is married to Georgina Matta, his wife of 24 years. He has two adult daughters from a previous relationship, and one granddaughter. Prior to his remand in custody, he was living with his wife in Yarrambat. He proposes to return to this address if granted bail.
The applicant suffers from a number of health problems. In 2000, he had a tumour removed from his pituitary gland, resulting in ongoing endocrinological problems which requires multiple medications. He also suffers from other ailments, including diabetes insipidus, type 2 diabetes, hypopituitarism, pituitary adenoma and loss of vision in his left eye.
Criminal history
The applicant has a significant and relevant criminal history, which I will set out in some detail.
Between 1985 and 1999, when the applicant was between 16 and 30 years old, he was charged with various dishonesty offences for which he received adjourned undertakings, fines, and suspended sentences of imprisonment.
In 2006, the applicant was sentenced to nine months’ imprisonment, wholly suspended, in relation to 41 dishonesty and drug‑related offences, including possess a drug of dependence, traffick a drug of dependence, and 30 charges of forging prescriptions for drugs of dependence.
In December 2009, the applicant pleaded guilty in the County Court to three charges of traffick a drug of dependence, three charges of possess a drug of dependence, one charge of import tier 1 goods (rolled up count) and one charge of being a prohibited person in possession of a firearm. The applicant’s wife was his co‑offender. The applicant purchased substances for the manufacture of steroids, and then manufactured and sold those steroids. In 2005, police located 6.1 kilograms of steroid‑based tablets and liquid steroid vials in a factory the applicant had leased.[8] In 2007, the applicant imported 224 grams of anabolic steroids without lawful authorisation, and anabolic steroids were located in his home during the execution of a search warrant. In January 2010, the applicant was sentenced to a total of seven years and eight months’ imprisonment, with a non‑parole period of four years.[9]
[8]It seems that the applicant was not arrested but placed under covert surveillance at this point.
[9]DPP v Taylor [2010] VCC 0914UR (Judge Millane).
In March 2010, the applicant was dealt with in the Broadmeadow’s Magistrates’ Court on charges of handle stolen goods, make false document to prejudice of other, use a false document to prejudice other and drive while suspended. He was sentenced to nine months’ imprisonment (concurrent). In April 2010, the applicant was fined $1,500.00 and sentenced to three months’ imprisonment in relation to charges of alter prescription for drug of dependence, obtain drug by false representation, fraudulently alter script for a Schedule 4 poison, utter forged prescription for a Schedule 4 poison and obtain Schedule 4 poison by false representation.
In 2015, the applicant was fined $5,500.00 in relation to nine charges of possess testosterone, two charges of possess prasterone and three charges of possess a Schedule 4 poison.
In December 2017, the applicant was convicted at trial of trafficking in a drug of dependence, namely ‘anabolic and androgenic steroidal agents’, and eight charges of import tier 1 goods. The applicant used his business, Melbourne Sports and Anti‑Aging Clinic, to assist in the commission of the offences. His co‑offenders included his wife, the Clinic’s receptionist and a general practitioner. The applicant sold substantial quantities of various anabolic steroids to customers; wrote illegitimate prescriptions; and unlawfully imported drugs from China then repackaged them so they appeared to be from a legitimate German pharmaceutical company. The applicant was on parole at the time of the offending. In April 2018, he was sentenced to seven years’ imprisonment with a non‑parole period of four years and six months.
In August 2018, the applicant was sentenced to 12 months’ imprisonment, with six months of that sentence being concurrent with the sentence he was already serving, in relation to a single charge of use a false document to prejudice other. The applicant provided fraudulent urine tests results for a person, knowing the intended use of the document was to mislead a court. The offending occurred in 2013 while the applicant was on parole.[10]
[10]DPP v Taylor [2018] VCC 1398.
In 2020, the Court of Appeal set aside the applicant’s December 2017 conviction on the most serious charge (trafficking in anabolic and androgenic steroidal agents) and the applicant was released.[11] In August 2022, he pleaded guilty to an appropriately worded trafficking charge and was sentenced to three years’ imprisonment, wholly suspended for a period of three years. The sentencing judge noted that the offending occurred back in 2013, resulting in a nine‑year delay in sentencing.[12]
[11]Taylor v The Queen [2020] VSCA 50 (‘Taylor v The Queen’).
[12]DPP v Taylor [2022] VCC 1313 (Judge Cahill).
The informant’s evidence
The informant gave evidence that he was in the process of obtaining a statement from Dr Shabani. Dr Shabani received monthly payments from the Clinic for telehealth consulting from May 2021 onwards. He wrote a total of
7–10 prescriptions. He has never ordered any paper prescription pads, and all of his scripts were electronic scripts. During the searches of the applicant’s Clinic and warehouse, police located at least one large box containing hundreds of prescription pads with Dr Shabani’s name stamped on them.
In cross‑examination, the informant agreed that, of the 12 people observed coming and going from the Clinic, police do not know what was inside the bags they exited with, or whether they were collecting legitimate medications. None of the 12 people have been identified and there are no statements pending. He agreed that part of the police’s ‘suspicion’ is that Schedule 4 poisons were being prescribed.[13] He agreed that police currently have no evidence that the applicant possessed five kilograms of anything, and they cannot allege that he did without the forensic analysis results. He agreed that forensic analysis, on a ‘best case’ scenario, will be provided in four months’ time, but his experience suggests it may potentially be longer. He agreed that a large amount of other material, including documents, mobile phones and computers were also seized. The police intend to analyse all of that material, including potential analysis by a forensic accountant. The informant agreed that the investigation is still continuing, witness statements remain outstanding, and the results of the analysis may lead the investigation in different directions. The informant accepted that, realistically, it will be at least six months from today until the complete hand‑up brief is ready for service. With respect to the cars seized, the police believe they were purchased with profits from the Clinic. There is nothing to suggest they were otherwise acquired illegally.
[13]Pursuant to s 3 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’), a Schedule 4 poison means a substance in Schedule 4 of the Poisons Standard. The Poisons Standard is also defined and means the current Poisons Standard within the meaning of the Therapeutic Goods Act 1989 (Cth).
Respondent’s concessions
Prior to the applicant commencing his application, counsel for the respondent helpfully drew the Court’s attention to a number of matters.
First, counsel conceded that there are problems with Charge 2, and Charges 6–10. Charge 2 charges ‘trafficking in a drug of dependence namely anabolic and androgenic steroidal agents’, which is not an offence known to law.[14] Secondly, counsel conceded that the named substances in Charges 6, 7, 8 and 9 are not found within Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’) and thus not a ‘drug of dependence’ (they are Schedule 4 poisons). Thirdly, counsel submitted that Charge 10 lists a substance that is a steroidal agent, but is not otherwise listed in Schedule 11. Counsel conceded that there ‘may very well be some issues with that’, given what the Court of Appeal said in Taylor v The Queen.
[14]See Taylor v The Queen [2020] VSCA 50, in which the Court of Appeal held that steroids so described constituted a class of drugs of dependence, not a ‘drug of dependence’ within the meaning of s 4 of the Drugs Act (Priest, Hargrave and Weinberg JJA).
Counsel also conceded that Charge 1, as currently particularised, includes a number of substances, only some of which are found in Schedule 11. Counsel accepted that this charge will need to be considered by the prosecution, and substances that are not found in Schedule 11 deleted. For the purposes of bail, the concession is relevant to the applicant’s argument concerning the quantity alleged.
The applicant’s evidence
Mr De Cesare gave evidence in support of the applicant. Mr De Cesare is the sole owner and director of a company which runs a commercial painting business. He has operated the business for approximately 30 years and has never been in any trouble with the law. He currently has 50 employees, but normally employs between
50–90 people. Mr De Cesare has known the applicant for 14 years. He knows he has a criminal history, including prior convictions for drug trafficking and dishonesty. He is willing to employ the applicant full time and, if released, the applicant could start work tomorrow. Mr De Cesare is willing to train the applicant as an OHS and Workcover Liaising Officer. The applicant’s prior convictions, including for dishonesty, would not disqualify him from that role.
Mr De Cesare is also prepared to be a bail guarantor and provide a surety of $100,000.00 consisting of part of his cash savings. He understands that if the applicant breaches any of his bail conditions, including failing to appear at court, he is at risk of losing his money. Prior to the applicant’s remand, he would see the applicant approximately weekly. If the applicant is employed by his business, the applicant will be both in the office and on sites. Mr De Cesare also works both in the office and on sites. He undertook to the Court to notify the informant if he became aware that the applicant was not complying with his bail conditions.
The applicant’s contentions
The applicant relies on a combination of factors, principally delay and the strength of the prosecution case, to establish exceptional circumstances justifying his admission to bail. In summary:
(a) The applicant acknowledges that the charge of trafficking a commercial quantity of a drug of dependence is an objectively serious offence which carries a maximum penalty of 25 years’ imprisonment. However, the applicant submits that the prosecution are unable to prove the commercial quantity threshold. The applicant’s solicitor provided their own calculation of the quantity of drugs located at the Clinic, based on a list of items seized provided by the informant. Relying on the labelling, the applicant’s analysis asserts that a total of 2.3 kilograms of various drugs of dependence (including testosterone, phentermine and mesterolone) was located, and a further 1.3 kilograms of unknown substances are pending analysis. This falls short of the individual and aggregate threshold for a commercial quantity of these drugs, and it is highly unlikely that the prosecution will be able to establish that the applicant had five kilograms of any single substance.[15] Therefore, the applicant submits the prosecution case in relation to the charge of trafficking a commercial quantity of a drug of dependence is weak. There are triable issues on all the charges, given that the Clinic was able to operate lawfully, and there is no direct evidence of any unlawful activity.
[15]The commercial quantity threshold for all the charged substances is five kilograms, other than phentermine where the commercial quantity threshold is two kilograms.
(b) The applicant has significant, relevant prior convictions, and was subject to a suspended sentence at the time of the alleged offending. However, he has no prior convictions for breaching bail, and has previously attended court when required.
(c) The applicant provided a Patient Health Summary from Epping Healthcare, setting out the various medications he requires daily to treat and manage his numerous medical issues. His poor health makes his time on remand more burdensome.
(d) The applicant will likely spend more than two years in custody before reaching trial, if bail is refused. He acknowledges that, if he is found guilty of trafficking a commercial quantity of a drug of dependence, the ultimate sentence would exceed two years’ imprisonment. However, delay remains a very powerful and significant factor, which strongly supports a finding of exceptional circumstances.
(e) The applicant is willing to be electronically monitored by Allied Universal GPS at his own expense, and comply with all conditions of that program. His movements would be monitored ‘24/7’, and zones can be ‘geofenced’ so that an alert is issued if he enters or exits those zones in contravention of his bail conditions.
(f) The applicant has available stable employment with Mr De Cesare, who is also willing to supervise the applicant while on bail, report any breaches of bail to the informant and provide a surety of $100,000.00.
The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of endangering the safety or welfare of any other person by committing an offence or by any other means, or failing to answer bail.
The applicant submits that any risk to the safety and wellbeing of the community alleged by the respondent would only become manifest if the Clinic remained open. The applicant states that he has no intention of re‑opening the Clinic until the charges have been finalised.
With respect to failing to answer bail, the applicant notes that the respondent alleges that a number of warrants have been issued in the past. The applicant submits any previous failure to attend court must not have been deemed of sufficient seriousness to warrant a charge being laid, and he has no prior convictions for breaching bail. He has substantial ties to the jurisdiction — namely, his wife, two adult children and granddaughter — and he does not have strong ties to any other jurisdiction.
Finally, the applicant submits that any risk can be rendered acceptable through the imposition of very strict conditions. They include the provision of a substantial bail guarantee; thrice‑weekly reporting; surrendering his passport; being electronically monitored; and not operating any business with respect to sports medicine or anti‑aging.
The respondent’s contentions
Bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail, and even if he clears that hurdle, he is an unacceptable risk of endangering the safety or welfare of any other person by committing an offence, namely drug trafficking, and/or failing to surrender into custody in accordance with the conditions of bail.
The respondent submits that, while the charge date currently particularises 28 March 2024 as the date of the alleged offending, it is the prosecution case that the offending occurred over a lengthy period. The respondent refers to the daily taking reports, which suggest daily takings of $20,000.00 and date back to October 2023. There are also witness statements and sales receipts from pharmacists, which indicate that the applicant was being supplied with multiple kilograms of steroids for more than 12 months prior to his arrest.
The respondent submits that given the applicant’s history of trafficking drugs of dependence, the alleged offending should be considered to be at the higher end of seriousness. The respondent submits that a significant quantity of suspected drugs — namely, six litres in vials and 7,000 tablets — have been seized and are currently pending forensic analysis.
The applicant’s criminal history is extensive, with multiple convictions and significant terms of imprisonment for serious drug‑related offending. Much of the applicant’s past offending was very similar to the offending with which he is charged. He has previously offended whilst subject to parole, and was subject to a three year suspended sentence for trafficking in a drug of dependence at the time of the alleged offending.
The respondent submits that the applicant has access to medical care in custody, and that is not a factor of any great weight.
The respondent acknowledges that the applicant will likely spend a substantial amount of time in custody preceding trial if bail is refused, but submits that this will not exceed the likely sentence, should he be convicted. Even if the applicant is not convicted on Charge 1, but is convicted of trafficking in drugs of dependence, the applicant’s sentence would nonetheless exceed his time on remand, given his prior criminal history.
The respondent submits that the applicant has had seven warrants issued for his arrest while on bail, but concedes no charges have ever been laid. The respondent concedes that the risk of the applicant failing to answer his bail is not as significant as the risk that he will endanger the safety and welfare of a person by continuing to trade in illicit steroids and other substances. It is conceded that the applicant has ties to the jurisdiction and is willing to be electronically monitored, albeit such devices are not failsafe and may be tampered with or removed.
Consideration
Exceptional circumstances
I acknowledge the applicant contests the charges and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence.[16] It is difficult to assess the seriousness of the alleged offending given the brief of evidence is yet to be served. Commercial quantity drug trafficking is a very serious offence, however based on the material I do have, this is not the most serious example of that offence.
[16]The Act s 3AAA(1)(a).
It is convenient to next deal with the charges and the strength of the prosecution case. As the respondent conceded, Charge 2 does not disclose an offence known to law. Charges 6, 7, 8 and 9 are fatally flawed, as the substances named are not listed in Schedule 11 of the Drugs Act. Charge 10 names a steroidal agent, but the substance is not otherwise listed in Schedule 11; relying on Taylor v The Queen, this charge is also flawed.
With respect to Charge 1, only two of the particularised drugs are found in Schedule 11. The remaining substances are described by the informant as ‘steroidal agents’. If it is intended that the charge be comprised, in part, by trafficking in anabolic and androgenic steroidal agents, then the charge would suffer from the same flaw identified in Taylor v The Queen: that is, anabolic and androgenic steroidal agents are a ‘class of drugs of dependence’ and not a ‘drug of dependence’ within the meaning of s 4 of the Drugs Act. A person cannot be validly charged with an offence under s 71AA of the Drugs Act if the drug in question is an ‘anabolic and androgenic steroidal agent’.[17] In my view, the difficulty with Charge 1, together with the fact that Charge 2 and Charges 6–10 do not disclose an offence known to law, are significant matters contributing to a finding of exceptional circumstances.
[17]DPP v Kumas [2021] VSCA 215, [12]–[13].
Turning to the strength of the prosecution case on Charge 1. I accept for these purposes that over six litres of liquid and over 7,000 tablets were located at the Clinic. They are described by the informant as a mixture of testosterone, phentermine and ‘other steroidal agents’. A commercial quantity cannot be proved by adding together all the substances found. Rather, each substance would have to be listed in Schedule 11 and, if an aggregate of two or more drugs is relied upon, the fractions determined and added together pursuant to s 70 of the Drugs Act. At this stage, forensic analysis of all the substances is pending. According to the informant, at least some of the substances found at the Clinic were Schedule 4 poisons or prescription medications. Whilst it is difficult to make an accurate assessment on the evidence before me, in my view the prosecution case on Charge 1 appears somewhat weak; it is certainly not strong.
Charges 3, 4 and 5 (which properly allege trafficking in a drug of dependence) are stronger, based on the quantity found and other surrounding circumstances. I would not describe the prosecution case as overwhelming, but nor is it weak. I accept there are triable issues.
The ultimate sentence is difficult to predict, given the current state of the charges. The evidence suggests the applicant was conducting a very lucrative business, and assuming the sale of the substances was criminal, then the proceeds of crime charges are serious. Given the applicant’s criminal history, and the fact he was on a suspended sentence at the time of the alleged offending, I agree with the respondent’s submission that even if the applicant is not convicted on Charge 1, but is convicted on the remaining lawful trafficking charges, he is facing a term of imprisonment which will likely exceed any time spent on remand.
I accept the delay estimates provided by the applicant, particularly in light of the evidence of the informant. It is likely to be November before the hand‑up brief is finalised, meaning a contested committal in the first half of next year is a reasonable proposition. It would then be approximately 14 months before the applicant’s trial was reached in the County Court. This would amount to an overall delay of approximately 24 months, or perhaps longer. While a delay of this magnitude is neither unusual nor inordinate, it is nevertheless a significant period of time to spend on remand awaiting trial.
Mr De Cesare impressed me as an honest and responsible person. His willingness to provide a surety, employ the applicant and report any breaches of bail that he becomes aware of are all relevant factors in the applicant’s favour.
The applicant’s health problems are not so significant that he cannot work full time, which is what he proposes to do if released. The applicant has suffered from similar health issues since 2000, including when he was sentenced to a substantial term of imprisonment in 2010. There is no evidence before me that his health problems were not adequately treated in prison. In my view, the applicant’s health issues are capable of being managed if he remains in custody and not a factor of any real weight.
The phrase ‘exceptional circumstances’ is not defined in the Act. Although some judges have essayed a definition,[18] others have held that it is not appropriate for the court to seek to define the expression.[19] It is not possible to identify, in any general definition, what factual situations may constitute exceptional circumstances. Rather, it is necessary to examine the facts of the individual case in order to determine whether ‘exceptional circumstances’ exist that would warrant the grant of bail. The circumstances must be such as to take the case out of the normal, or ‘right out of the ordinary’.[20] The threshold is high, but it is not an impossible or unachievable standard.[21] Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[22] Delay prior to trial is an accepted part of the criminal justice process, but Courts have long held that delay is nonetheless a very significant consideration when assessing whether exceptional circumstances have been made out.[23]
[18]DPP (Cth) v Tang (1995) 83 A Crim R 593, 596 (Beach J).
[19]DPP v Tong (2000) 117 A Crim R 169, [23]–[24] (McDonald J).
[20]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J).
[21]Re Whiteside [1999] VSC 413, [10] (Warren CJ).
[22]See Re CT [2018] VSC 559, [64]–[66] and the cases referred to therein (Champion J).
[23]See Mokbel v DPP (No 2) [2002] 312, [18]–[27] and the cases referred to therein (Kellam J).
After careful consideration, I have reached the conclusion that exceptional circumstances have been established in this matter for three main reasons: First, the anticipated delay pending trial is at least two years. That is a lengthy delay and accompanied by some uncertainty, given the investigation has not concluded and numerous items are awaiting analysis. Secondly, six of the nine trafficking simpliciter charges are fatally flawed. Thirdly, the prosecution case on Charge 1, insofar as a commercial quantity must be proved, appears quite weak given the number of different substances found, not all of which are drugs of dependence. While Charge 1 is not the only charge that places the applicant in the position of having to show exceptional circumstances justifying a grant of bail, it is by far the most serious of the charges. The availability of the bail guarantor is also a factor of some relevance. The remaining factors, either alone or in combination, do not meaningfully contribute to a finding of exceptional circumstances.
Unacceptable risk
The applicant’s wife, sensibly, was not put forward as a bail guarantor or a person who is suitable to supervise the applicant on bail.[24] Nonetheless, the applicant has stable accommodation with his wife of 24 years in the family home, and she remains supportive. He has a good relationship with his two adult daughters, and a close relationship with his granddaughter, all of whom reside in Victoria.
[24]This was the applicant’s initial position in written material, but not pursued at the hearing.
The applicant has very relevant prior convictions. He has previously been convicted of very similar offending. He has offended while on parole and on bail.[25] He has a history of dishonesty, including forging a document for use in another person’s court case. He does not seem to have been deterred by previous sentences of imprisonment. All these matters elevate the risk that he will continue to offend whilst on bail. Balanced against this, the applicant has never been charged with any offences under the Act, and he has attended court in circumstances where he has faced an immediate term of imprisonment.
[25]The applicant has never been charged with committing an indictable offence while on bail, but the respondent asserts he has offended while on bail, and given the timing of his prior convictions, this seems accurate.
The proposed surety will assist in reducing risk. It is not a great sum of money, given the large quantity of cash found in the applicant’s warehouse, together with the value of the motor vehicles. However, the prospect that Mr De Cesare will lose a significant sum of his own money will go some way to deterring the applicant from breaching his bail. Full time employment with Mr De Cesare is also a factor in the applicant’s favour. It will provide the applicant with an income source and occupy him on a daily basis. It will also allow Mr De Cesare to supervise the applicant, at least to some degree.
The respondent’s assertion that the applicant has ‘criminal ties’ which could allow him to procure a ‘fraudulent passport’ is without any real evidentiary foundation. There are no electronic messages or other evidence supporting this statement. The applicant’s alleged trafficking was conducted locally, with customers attending his business. The informant’s summary does not identify any alleged international criminal ties, or ties to persons who might be capable of arranging false travel documents. The applicant does have multiple prior convictions for forging prescriptions, and making and using false documents, but forging a passport would be far more complex and technically difficult.
The applicant’s business was lucrative, and the value of the motor vehicles he possessed is very significant. He was also in possession of a significant quantity of cash. There is no suggestion he has access to any other quantities of cash, in circumstances where three of his premises have been thoroughly searched and his bank accounts have also been examined. However, I cannot exclude the possibility that he continues to have access to cash or other sources of money.
In my view, there is a risk the applicant will disregard his conditions of bail and continue to trade in testosterone and other steroidal agents. The question is whether, in all the circumstances, the risk is unacceptable. In making a decision, I must consider the availability of any conditions that may be imposed to mitigate the risk to a level that it is not unacceptable. Here, those conditions include preventing the applicant from attending the Clinic, resuming his business, or opening any similar business.
I have given consideration to the proposal that the applicant be electronically monitored by a private company if released on bail. Conditions of bail must be no more onerous than is required to reduce the likelihood that the applicant engage in the conduct that he is at risk of engaging in.[26] In my view, any risk that that the applicant will abscond while on bail is adequately mitigated by requiring him to surrender his passport, the imposition of a bail guarantee and thrice‑weekly reporting to a police station.
[26]The Act s 5AAA(2)(a).
If released on bail, the applicant will be living with his wife. Based on the material I have read, I doubt she would effectively prevent the applicant from recommencing trafficking in steroidal agents if he was determined to do so.[27] However, it is difficult to see how electronic monitoring would meaningfully reduce that risk. The location of the Clinic could be ‘geofenced’, but a condition that the applicant not attend the Clinic is, in my view, sufficient and not difficult to enforce. There are various ways the applicant could resume offending, including online or through a third party, and electronic monitoring would not meaningfully reduce that risk. In all the circumstances here, I do not regard electronic monitoring as a necessary or appropriate condition of bail.
[27]Additional Affidavit in Response of Nethmi Nalawattage, NN‑4, Criminal Record of Georgina Matta; R v Matta [2009] VCC 0993 (Judge Hannan) (unreported); DPP v Matta [2017] VCC 1955 (Judge Patrick).
Overall, I am not satisfied that the applicant poses an unacceptable risk in the ways relied on by the respondent, if released on bail with strict conditions.
Conclusion
The Court is satisfied that exceptional circumstances exist that justify the grant of bail, and that it has not been shown that the applicant, if released on bail, is an unacceptable risk in either of the ways alleged by the respondent.
The application is granted.
0
8
0