Re Tiburcy
[2024] VSC 163
•5 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0056
| IN THE MATTER of the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER of an application for bail by Steven Tiburcy |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2024 |
DATE OF RULING: | 5 April 2024 |
CASE MAY BE CITED AS: | Re Tiburcy |
MEDIUM NEUTRAL CITATION: | [2024] VSC 163 |
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CRIMINAL LAW — Bail — Applicant charged with five counts of trafficking in a large commercial quantity of a drug of dependence — Schedule 1 offences — Requirement to show exceptional circumstances — Very significant delay — Delay constituting exceptional circumstances — Unacceptable risk alleged — Whether applicant an unacceptable risk of endangering the safety or welfare of any person by further offending, and/or failing to answer bail — Availability of strict conditions including electronic monitoring — Unacceptable risk not established — Application granted — Bail Act 1977 (Vic) ss 3AAA, 4AA, 4A, 4D, 4E & 34.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Farrington | City Group Legal |
| For the Respondent | Mr P Pickering | Office of Public Prosecutions |
HER HONOUR:
Introduction
Steven Tiburcy (‘applicant’) applies for bail on the following 12 charges:
(a) Trafficking in a large commercial quantity of a drug of dependence (unspecified) (Charge 1);[1]
[1]Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71.
(b) Trafficking in a large commercial quantity of MDMA (Charge 4);[2]
[2]Ibid.
(c) Trafficking in a large commercial quantity of cocaine (Charge 5);[3]
[3]Ibid.
(d) Trafficking in a large commercial quantity of methylamphetamine (Charge 6);[4]
[4]Ibid.
(e) Trafficking in a large commercial quantity of ketamine (Charge 7);[5]
[5]Ibid.
(f) Possess ammunition without a licence (Charges 2 and 10);[6]
[6]Contrary to the Firearms Act 1996 (Vic) s 124.
(g) Possess prohibited weapon (Charges 3 and 11);[7]
(h) Possess tablet press (Charges 8 and 9);[8] and
(i) Fail to comply with a direction to assist (Charge 12).[9]
[7]Contrary to the Control of Weapons Act 1990 (Vic) s 5AA.
[8]Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71C.
[9]Contrary to the Crimes Act 1958 (Vic) s 465AA(9).
It is common ground that the applicant must satisfy the Court that exceptional circumstances exist justifying the grant of bail.[10]
[10]Pursuant to the Bail Act 1977 (Vic) (‘the Act’), the applicant is charged with five sch 1 offences. See sch 1, item 6(a), being an offence against s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Alleged offending
The charges against the applicant and five co‑accused arise from an extensive Australian Federal Police (‘AFP’) and Federal Bureau of Investigation (‘FBI’) investigation known as Operation Ironside. Operation Ironside covertly investigated serious organised crime activities through the use of a messaging platform known as AN0M, which was marketed as a secure, encrypted mode of communication. In reality, AN0M communications were capable of being monitored, decrypted, recorded and traced by law enforcement agencies. AN0M was only accessible via customised handsets that allowed the user to access the platform. The users used pseudonyms, or ‘handles’, when communicating via the platform.
It is alleged that the applicant was the head of one of the drug trafficking syndicates within the Operation Ironside investigation, and that he used the AN0M handle ‘sumdone’ to orchestrate syndicate activities and communicate with the co‑accused Adam Currie (‘AC’), Ross Finnigan (‘RF’), Xavier Gavin (‘XG’), Graeme Lench (‘GL’), Ryan Crawford (‘RC’) and Steven Lench (‘SL’).
In summary, it is alleged that the applicant:
(a) Directed RF to collect and deliver drugs and cash on an almost daily basis between 7 April and 25 May 2021. It is alleged that in total, the applicant directed RF in the collection of approximately 180 kilograms of drugs and approximately $5.9 million cash.
(b) Told RF he had control over a further 100 kilograms of cocaine.
(c) Directed AC to manufacture 42,000 ecstasy tablets from ‘raw’ MDMA.
(d) Agreed to supply 20,000 ecstasy tablets to XG and, when this fell through due to AC’s arrest, offered to sell XG two kilograms of MDMA powder for $54,000 per kilogram.
(e) Agreed to supply 10,000 ecstasy tablets to GL and, when this also fell through, offered to sell him three kilograms of MDMA powder for $54,000 per kilogram, or methylamphetamine at $26,000 for 250 grams or $50,000 for 500 grams. The applicant also advised GL on various occasions that he could supply cocaine for $270,000 – $320,000 per kilogram.
(f) Created a group chat with RF and GL to facilitate the sale of drugs to GL.
(g) Agreed to supply XG a total of 1.5 kilograms of ‘loose’ cocaine for $270,000 per kilogram, and instructed XG to contact RF to arrange collection of it.
(h) Agreed to supply Mark Joannou (also charged as part of Operation Ironside, but not a co‑accused) two kilograms of cocaine at $265,000 per kilogram.
It is alleged GL’s brother, SL, acted as a delivery driver for GL on occasion. RC is alleged to have stored drugs for RF, but is not alleged to have had any direct relationship with the applicant. Neither SL nor RC had an AN0M handle or handset.
In relation to Charge 1, the respondent submitted this was an ‘umbrella charge capturing various drugs and transactions’. The material said to found Charge 1 is that which also forms the basis of Charges 4–7. The respondent accepted that the applicant could not be convicted of both Charge 1 and the individual charges, and that prior to trial, the prosecution will need to determine which charge(s) are to be prosecuted.
Charges 4, 8 and 9 concern the applicant’s dealings with the drug MDMA between 23 April and 7 June 2021. The applicant directed RF to collect and deliver cash, pills and MDMA to various persons, including GL and XG. Between 23 and 27 April 2021, it is alleged the applicant directed AC to manufacture thousands of ecstasy tablets. AC was arrested on 27 April and a search warrant executed at his premises. Police seized over 23 kilograms of MDMA and associated manufacturing chemical and equipment, including two pill presses. Following AC’s arrest, the applicant messaged his wife, Tanja Tiburcy,[11] advising her that ‘we just lost 250k’ and expressing concern that police might locate his fingerprints on one of the pill presses seized.
[11]The applicant and his wife are separated, but prior to his arrest were living under the one roof, and will continue to do so if he is granted bail. For convenience, I will continue to refer to her as his wife.
SL was arrested on 18 May 2021, initially by the Ballarat Highway Patrol. Three bags of MDMA, weighing a total of 3.86 kilograms, were located in his vehicle. Following his arrest, the applicant messaged his wife advising her that they had given SL three kilograms of MDMA; that SL had only paid for half of it; and that he had since been arrested.
Charge 5 concerns the applicant’s trafficking of cocaine between 1 April and 7 June 2021. It is alleged the applicant used RF to deliver or collect kilos of drugs and cash to various persons, including GL. RF, on occasion, enlisted the assistance of RC, including to store 30 kilograms of cocaine.
Charge 6 concerns the applicant’s alleged trafficking of methylamphetamine, also between 1 April and 7 June 2021. It is alleged the applicant again used RF, this time to collect and deliver methylamphetamine on his behalf. The applicant directed RF to transport up to two kilograms of the drug on multiple occasions.
Charge 7 concerns the applicant’s alleged trafficking of ketamine between 1 April and 7 June 2021. It is alleged the applicant used RF to collect and deliver various quantities of ketamine to various persons, including GL. On 19 April, the applicant told RF he would soon receive 15 kilograms of ketamine. On 6 May, the applicant told RF he was awaiting a shipment of ketamine from overseas.
RF and RC were arrested on 26 May. Six blocks of cocaine weighing approximately one kilogram each were found in RC’s shed. A search of RF’s apartment and vehicle resulted in the location and seizure of $817,657 cash; five blocks of cocaine; a semi‑automatic rifle and multiple electronic devices. RF is alleged to have utilised the AN0M handle ‘arrivemusic’. On 28 May, the applicant advised XG of RF’s arrest, and the seizure of the cocaine and cash. The applicant told XG that as a result, he was now four million dollars in debt.
The applicant was arrested on 7 June 2021. A search of his premises pursuant to warrant located 30 rounds of cartridge ammunition and three expandable batons. Police also located and seized two google phones. It is alleged that one handset was connected to the AN0M platform with the username ‘sumdone’. The second google phone was also connected to the AN0M platform with the username ‘piefather’; it is alleged this handset was utilised by the applicant’s wife. Additionally, it is alleged that the AN0M platform allowed authorities to monitor and record the IMEI number of the handset using the platform, and the IMEI numbers of the handsets seized match those that were using the AN0M network. The applicant made a ‘no comment’ record of interview, and refused to provide access codes to his electronic devices.
XG and GL were also arrested on 7 June 2021. At each of their addresses, handsets connected to the AN0M platform were located.
Procedural history
The applicant has remained in custody since his arrest on 7 June 2021. He has twice been refused bail in the Melbourne Magistrates’ Court, first on 14 October 2021[12] and again on 23 December 2021.[13]
[12]On 14 October 2021, the applicant was refused bail in the Melbourne Magistrates’ Court on the basis that he was an unacceptable risk of committing an offence whilst on bail and failing to surrender into custody in accordance with conditions of bail.
[13]On 23 December 2021, the applicant was refused bail in the Melbourne Magistrates’ Court on the basis that new facts and circumstances did not exist, and that there was an unacceptable risk of flight and offending whilst on bail.
On 13 March 2024, the applicant filed a notice of intention to make an application for bail in this Court.
The applicant’s matter is currently listed for a 10 day committal hearing, commencing 20 May 2024.
Legislation
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[14] In considering whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Bail Act 1977 (Vic) (‘the Act’).[15]
[14]The Act ss 4AA(1), 4A.
[15]Ibid s 4A(3).
If satisfied to the requisite standard, the Court must then consider the unacceptable risk test.[16] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[17] In considering whether a 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 any risk so that it is not unacceptable.[18]
[16]Ibid ss 4A(4), 4D(a).
[17]Ibid ss 4E(1)–(2).
[18]Ibid s 4E(3)(b).
The Court raised with the parties the applicability of the recent amendments to the Act, which came into effect on 25 March 2024. The parties’ written material had not addressed this question, and both parties had relied on the Act as it was prior to the amendments. The parties agreed, correctly in my view, that the Act as amended was applicable.[19]
[19]Pursuant to s 34(22) of the Act, the amendments apply to ‘an application made, or an appeal commenced, under this Act on or after [25 March 2024], regardless of when the offence is alleged to have been committed.’ The applicant filed a ‘Notice of Intention to Make an Application for Bail’ (‘Notice’) on 13 March 2024. The Notice is addressed to the Prothonotary, the respondent (‘informant’), and the Director of Public Prosecutions (‘Director’). In my view, the Notice serves a number of pragmatic purposes — it alerts the Court that an application will be made; it alerts any other affected person (here, the Director and the informant) of what is to occur; it enables the Court to fix a timetable for filing of affidavits and other material; and it allows the Court to fix a date for the hearing of the application at a time suitable to the parties and the Court. However, the bail application itself is made on the day of the hearing, and not earlier.
There are two amendments that should be noted in the context of this application. First, the unacceptable risk test has changed and the risk of committing an offence is no longer a stand‑alone limb of the test. As amended, s 4E(1) states:
(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that—
(a) there is a risk that the accused would, if released on bail—
(i) endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.[20]
[20]The Act s 4E(1).
Secondly, the surrounding circumstances that the bail decision maker must take into account have been expanded to include whether, if the accused were found guilty, it is likely:
(a) that they would be sentenced to a term of imprisonment; and
(b) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.[21]
[21]Ibid s 3AAA(1)(aa).
Co-accused
AC made a full and frank record of interview, and did not apply for bail. He has since pleaded guilty to trafficking in a large commercial quantity of MDMA, obtaining property by deception, possessing a tablet press and negligently dealing with proceeds of crime. He was sentenced to 10 years and six months’ imprisonment, with a non‑parole period of five years and nine months.
SL was granted bail on 5 October 2021 by the Magistrates’ Court with a $50,000 surety and strict conditions. A condition of bail was that SL reside at The Cottage in Shepparton (a drug rehabilitation facility). SL had tested positive to drug use at the time of his interception.
RC was also granted bail on 5 October 2021 by the Magistrates’ Court with a $50,000 surety and conditions. On 28 September 2023, RC was convicted by a jury of trafficking cocaine, and acquitted of trafficking in large commercial quantity of cocaine. He also pleaded guilty to cultivating cannabis and theft. On 24 October 2023, RC was sentenced to a Community Correction Order.
RF was granted bail on 11 October 2021 with a $40,000 surety and conditions.
GL was granted bail on 8 June 2021 with a $25,000 surety. No other information was provided as to GL’s bail conditions. XG was granted bail in ‘December 2021’; I have no information as to whether a surety was provided, or the conditions of his bail.
All co‑accused (other than those who have been sentenced) remain on bail.
The applicant
The applicant is 46 years old. He was born in Melbourne and has lived within Victoria throughout his life. His mother lives in Ballarat in a property she has rented for over 17 years. The applicant’s brother also lives there. His sister is married with two children and lives in Aintree. They own their property, but are struggling financially due to workplace injuries and medical issues.
The applicant completed year nine of secondary school, and subsequently worked in demolition, construction, and transportation. Prior to being remanded in custody, he worked for Sky Limit Construction doing concreting and related tasks.
His first child, Joshua, was born when he was 17 years old. He and Joshua’s mother separated two years later, however the applicant maintains a strong relationship with Joshua, who also lives in Ballarat. All of the applicant’s family are aware of these matters.
In 2014, the applicant married Tanja Tiburcy, with whom he has two children, aged six and three. The applicant and Mrs Tiburcy separated several months prior to his arrest, but continued to live together and care for their children.
Criminal history
The applicant has a number of prior convictions, including for drug trafficking.
In 1995, the applicant entered into a good behaviour bond for 12 months, without conviction, in relation to a charge of use phone service to menace or harass.
In 1998, the applicant was convicted of a number of offences including trafficking a drug of dependence; cultivate, possess, and use cannabis; possess firearm; and theft. He was made subject to a 12 month community based order and fined $500.
In 1999, the applicant was convicted of a single charge of cultivate cannabis and fined $1,000.
In 2002, the applicant was dealt with for trafficking methylamphetamine; possess and use methylamphetamine; and possess proceeds of crime. He was sentenced to six months’ imprisonment, suspended for 12 months, and fined $2,000.
In 2004, the applicant was convicted of obstruct police/person assisting police and fined $200.
In 2005, the applicant pleaded guilty to three charges of trafficking in a drug of dependence. He received a total effective sentence of seven years and six months’ imprisonment, with a non‑parole period of five years. Following a successful appeal, the applicant was resentenced to a total of six years and six months’ imprisonment, with a non‑parole period of four years.
The applicant’s evidence
The applicant provided a report and supplementary report of Simon Smith, who purports to be ‘an independent Australian expert witness specialising in cybercrime, digital forensics, application and mobile software, systems, and management’. The purpose of tendering such evidence on the bail application was to bring to the Court’s attention the fact that the reliability of the ‘AN0M evidence’ is doubtful. In Mr Smith’s opinion (which is limited by what he says is an inability to access data and information held by police), he cannot determine that the mobile phone seized from the applicant’s home address is in fact the device responsible for the messages sent using the handle ‘sumdone’, and ‘there is evidence indicating otherwise’.
The proposed bail guarantor, Christopher Grech, gave evidence that he has known the applicant for 15 years and regards him as a good friend. He is prepared to provide a surety of $395,000, comprising the equity in his family home. He understands that if the applicant breaches any of his bail conditions, he will lose his property. Mr Grech is aware of the applicant’s criminal history and the current charges. He has visited the applicant in custody approximately fortnightly and speaks with him frequently. He has discussed his expectations with the applicant; believes or trusts he will comply with his bail conditions; and will see and speak with him frequently if he is released. Mr Grech undertook to the Court to contact the informant if he had any concerns the applicant was not complying with his bail obligations.
Mr Jackson Oppy is the director of BailSafe Australia (‘BailSafe’). He gave evidence as to the availability and workings of their electronic monitoring system. The applicant would be supplied with and required to wear a device (a bracelet or anklet), and they are tamper resistant. His movements are then GPS tracked by a control room which is managed by a private security company. BailSafe has a preference for bracelets, as they provide additional data such as heart rate and body temperature, which helps them to corroborate that the wearer is, in fact, the correct person.
The applicant would also have a smartphone which has a particular application loaded,[22] and the device and smartphone each send GPS signals concurrently and continually. The smartphone is also used to conduct video check‑ins. If the wearer attempts to remove the device, the control room immediately receives an alert. Their first action is to demand a video check in by the wearer. This occurs within five minutes of the alert. They also check the location of both the smartphone and the device. An alert is also sent if the device is insufficiently powered. Zones can be set, or ‘geofenced’, meaning if the wearer leaves an area where they should be — for example, during curfew hours — an alert is sent. If an alert is received and they are unable to make contact with the wearer and resolve the issue, they report the issue to the informant, or another police officer or police station if the informant so requests. They can also provide the informant with a phone application which allows him to see the GPS tracking ‘live’, or a digital unit that performs the same function.
[22]It is somewhat unclear whether a smartphone is provided by BailSafe, or the client is expected to have smartphone and download the necessary application.
In cross‑examination, Mr Oppy agreed that he has not physically attended the proposed bail address. It is considered suitable based on the location and Telstra coverage zone. If the applicant is granted bail and required to wear a tracking device, BailSafe attend and install beacons within the home, as GPS tracking is otherwise not particularly accurate indoors. Mr Oppy agreed that the device is not failsafe or foolproof. The signal may be lost in certain locations, such as an underground carpark; the device can be removed; or the signal blocked by placing foil around the device. If such things occur, an alert is sent but the signal is lost.
The informant’s evidence
The informant gave evidence, focused on the question of whether a condition requiring the applicant to wear a BailSafe GPS device would mitigate the risk of him absconding on bail. The informant said it seems he would be solely responsible for receiving any alerts, and required to carry the provided device with him ‘24/7’ to monitor the signal. He may be asleep, or performing other duties, or otherwise unable to respond promptly. He said if he received an alert, he would ‘most likely be contacting Triple 0’, notifying them of a potential bail breach, and attempting to mobilise police units. It would be very difficult and onerous.
In cross‑examination, he said that other than providing his personal mobile telephone number to BailSafe, calling Triple 0 is the only way he can think of to reach police. The number of Gisborne Police Station could be provided, but that is not a 24‑hour station. He cannot be expected to always answer his phone, and he would be hesitant to install any application on his phone that is provided by a company in relation to a prosecution.
The applicant’s contentions
The applicant acknowledges that the alleged offending is serious, as reflected by the maximum penalty that can be imposed on the large commercial quantity trafficking charges. He accepts that, if convicted, the ultimate sentence would exceed any time spent on remand awaiting trial. He also acknowledges that he has relevant, albeit dated, prior convictions for trafficking drugs.
The applicant relies on five main factors to establish exceptional circumstances.
First, the strength of the prosecution case. There are significant triable issues concerning the authenticity of the data collected using the AN0M platform, and it is doubtful that the ‘sumdone’ handle can be attributed to the applicant. There are also significant questions as to the lawfulness of the investigation, and in particular, the use of the AN0M network by the authorities without an appropriate warrant. This issue is currently the subject of litigation in other jurisdictions.
Secondly, the delay in this matter has already been considerable and will be inordinate. The applicant has spent approximately two years and ten months in custody, and he has yet to reach committal. Given the complexity and overlap of a number of matters, a joint committal involving 14 accused persons was commenced last October. It has not concluded, as there is material over which the police claim public interest immunity and a ruling remains pending. Another committal, which is also affected by the joint committal, has been adjourned until the end of June, and that is a nominal date only. The reality is that the applicant will be in custody for in excess of three years before he is committed to stand trial. Further, given the nature of the charges, the number of co‑accused, and the likely pretrial issues and legal arguments concerning the admissibility of evidence, the matter will not proceed as a jury trial until the second half of 2025, or 2026. The applicant submits that an anticipated delay of three years or more, in cases where serious drug trafficking is charged, has been found to justify, either on its own or in combination, a finding of exceptional circumstances.[23] Here, the overall delay will approach five years.
[23]The applicant referred in particular to Re Kamvissis [2021] VSC 620 (Beale J), Re Zayneh [2023] VSC 470 (Beach J) and Re Jiang [2021] VSC 148 (Lasry J).
Thirdly, the applicant has stable family support and ties to the jurisdiction. His last court proceeding was almost two decades ago, and since his release from custody, he has married, had two children and held lawful employment. The applicant is an Australian citizen, his wife is an Australian citizen, and he has significant ties to the jurisdiction
Fourthly, the applicant’s close friend will provide a substantial surety.
Fifthly, the applicant relies on parity. While he accepts that the factual circumstances alleged against him are more serious that those alleged against any of the co‑accused, he submits that it ‘remains relevant’ that all co‑accused have been granted bail.
Additionally, the applicant relied on the following factors:
(a) The applicant was remanded during the Covid‑19 pandemic and as a result, he has experienced onerous conditions in custody. The applicant submits he continues to experience unit and cell lockdowns while on remand.
(b) The applicant’s ability to properly prepare his defence is hampered by his ongoing remand, due to the size of the brief of evidence and issues accessing electronic devices while in custody. Additionally, the applicant alleges documents have gone missing during random searches of his cell.
(c) He has no history of failing to comply with bail, and indeed, he has a positive history of complying with bail in circumstances where he was charged with serious offences and facing a term of imprisonment.
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 failing to answer bail.
The applicant submits that the risk of the applicant returning to large scale drug trafficking while on bail is (1) not realistic, and (2) such an offence is not one that would ‘endanger the safety or welfare of any other person’ within the meaning of s 4E(1)(a)(i) of the Act.[24]
[24]Counsel referred to the Explanatory Memorandum of the Bail Amendment Bill 2023 (Vic), p 6–7.
The applicant submits the real issue is whether the respondent has established that he is an unacceptable risk of failing to appear. He argues that the suggestion is based on nothing more than the seriousness of the charges, and a general assertion that a person is a risk of flight cannot justify such a lengthy period of pre‑trial detention. At the time of arrest, the police found no drugs, no significant amounts of cash and no weapons. The applicant’s wife’s mother lives overseas, but that is not unusual and there is no suggestion she could fund or facilitate his surreptitious flight from Australia and entry into another country.
Finally, the applicant submits that any risk can be rendered acceptable through the imposition of very strict conditions. The proposed conditions include twice daily reporting; remaining at home unless in the company of Tanja Tiburcy or Christopher Grech (the bail guarantor); detailed conditions concerning his mobile phone access and use; surrendering his passport; and being electronically monitored by BailSafe, including paying for the service.[25] Additionally, his wife will undertake to surrender her passport and those of the children.
[25]Mr Oppy gave evidence that the cost is $595.00 for the device and then $280.00 per week, and they require payment in advance for a minimum of six months.
The respondent’s contentions
Bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail, and is an unacceptable risk of:
(a) endangering the safety or welfare of any other person by committing an offence, namely drug trafficking; and/or
(b) failing to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters:
(a) There is significant evidence attributing the relevant AN0M device, and the user handle ‘sumdone’, to the applicant. GPS data retrieved from the device shows it was used at the applicant’s home address. AN0M devices attributed to the applicant and his wife were located inside their address during the execution of the search warrant on 7 June 2021. Personal details in messages sent by user ‘sumdone’ on the AN0M platform match the applicant’s personal circumstances. For example, references to his wife being from the Balkans, and discussions that they might go overseas to see his wife’s sick father. The use of the AN0M platform was lawful, and all captured material is admissible. The respondent accepts there are triable issues, and there is a significant challenge to the admissibility of the AN0M evidence. However, the prosecution case is substantial, and if attribution of the ‘sumdone’ handle to the applicant is established, it is a very strong case.
(b) Tanja Tiburcy is not a suitable or protective support, and therefore the proposed bail address is also of concern. Mrs Tiburcy had her own AN0M handset, and discussed the drug trafficking enterprise with the applicant on multiple occasions. The respondent submits this shows she was well aware of his criminal conduct. The applicant refers to ‘we’ when discussing money gained or lost through drug trafficking, suggesting Mrs Tiburcy had a vested interest in the proceeds of the applicant’s drug trafficking. Further, the applicant and Mrs Tiburcy are under investigation for the transfer of property contrary to a restraining order, which has allegedly occurred since the applicant was arrested.
(c) The proposed bail guarantor is suitable, but the sum is not significant when the quantity of drugs trafficked and money involved is considered. Earlier, three sureties were proposed, totalling $945,000. The amount offered by Mr Grech is not sufficient to ensure the applicant’s attendance at court.
(d) The principle of parity has no application here, given the role played by the applicant in the hierarchy, and the number and seriousness of the charges he faces.
(e) The applicant can prepare his defence from custody, and to the extent necessary, the informant will assist to ensure he has access to the electronic brief of evidence.
The respondent acknowledges there has been significant delay in this matter, however notes that challenges to evidence and lengthy disclosure requests have contributed to delay. The respondent disputes the applicant’s trial estimate, and submits it is likely any trial will take place in late 2025. While this is not desirable, it is not inordinate and any time on remand will be vastly outweighed by any sentence the applicant will receive if convicted.
The respondent submits the applicant has relevant and serious prior convictions for similar offending — namely, being the head of a drug syndicate — for which he received a lengthy term of imprisonment. The respondent does not suggest the applicant is likely to be trafficking on street corners. Rather, given both his history and the alleged offending, he is likely to resume trafficking at a high level using encrypted applications. The AN0M platform was not the only means by which the applicant was communicating; he was using other encrypted platforms which still exist, such as Cipher, Wickr and Signal. The nature of the alleged offending is covert and difficult to detect. There are no bail conditions that could be imposed which would meaningfully reduce the risk of the applicant resuming or restarting his drug trafficking activities. It is proposed that the applicant will remain under virtual ‘house arrest’ if granted bail, meaning he will have no source of income; this will increase the risk of him returning to the lucrative world of drug trafficking. Even if meaningfully employed (as the applicant was at the time of the alleged offending), he is capable of both working and operating a drug syndicate.
The respondent submits that if there is an unacceptable risk of a person engaging in serious drug trafficking, that constitutes a risk that they will ‘endanger the safety or welfare of any other person’, namely the community. The respondent referred to what was said in the Explanatory Memorandum, and argued that the phrase should not be interpreted narrowly. The risk is not limited to violent or sexual offending. Drug trafficking causes great harm to the community, including to the ultimate consumers, and in that way it ‘endangers the safety or welfare of any other person’.
Further, the applicant and Mrs Tiburcy both have ties to overseas jurisdictions, including family in Croatia. The applicant likely has access to substantial wealth, given his many references to cryptocurrency and bitcoin. This wealth has not been seized or restrained in any way. His children are young, and moving countries would not be difficult. The applicant faces a very substantial term of imprisonment if convicted, which will motivate him to abscond if granted bail. It is true he has previously complied with bail, but that was a considerable time ago. The charges (and potential sentence) he faces now are markedly more serious, creating a great incentive to flee the consequences of conviction.[26]
[26]Counsel referred in particular to Re Kamvissis [2021] VSC 620 (Beale J) and Re Zayneh [2023] VSC 470 (Beach J).
Analysis
Exceptional circumstances
The Act does not define what may amount to exceptional circumstances. For the circumstances 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. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[27]
[27]See Re CT [2018] VSC 559 at [64]–[66] and the cases referred to therein.
The prosecution case is complex and there are triable issues. There is evidence connecting the applicant to the handset, including that it was located in his house. The handset had a GPS tracking system installed, and GPS mapping shows the device was utilised from the applicant’s home address. There are also messages consistent with the user being the applicant. If the AN0M messages are found to be admissible, the case against him is at least reasonable. If the username ‘sumdone’ is attributed to the applicant, the prosecution case becomes much stronger. The authenticity of the messages and the identity of the user of the ‘sumdone’ handle are capable of challenge, but it is not my task to examine the evidence at this stage. Nor is it my task to consider the merit of any legal argument to exclude the ‘AN0M evidence’. In some cases, the weakness of the prosecution case is clear, even to a bail decision maker, and may form a basis (either alone or in combination with other surrounding circumstances) to conclude exceptional circumstances are established. However here, there is nothing about the overall strength of the prosecution case that contributes to a finding of exceptional circumstances.
The charges are extremely serious. Large commercial quantity drug trafficking carries a maximum sentence of life imprisonment, and a standard sentence of 16 years’ imprisonment. Leaving aside Charge 1, the applicant faces four such charges. If convicted, he is facing a very substantial term of imprisonment that will easily eclipse any time he may spend on remand.
The applicant’s criminal history does not assist him on the question of exceptional circumstances. Nor, in my view, do his personal circumstances, associations, home environment, background or proposed bail guarantor contribute much to establishing ‘exceptional circumstances’. Indeed, the support of his wife, Tanja Tiburcy, gives rise to a number of concerns which are best dealt with when considering the question of unacceptable risk.
The principle of parity may be relevant in bail, however it must be established that things are equal as between the co‑offenders.[28] Here, the role played by the applicant in the enterprise is more serious that any of the co‑offenders. Further, I have no information as to their personal circumstances or antecedents. In the circumstances, the fact that all co‑accused are on bail is not relevant when determining this application.
[28]Director of Public Prosecutions (Cth) v Abbott (1997) A Crim R 19, 29 (Gillard J). See also, Gray v DPP [2008] VSC 4 (Bongiorno J).
The most powerful factor in the applicant’s favour is delay. The delay in this matter has already been very considerable; by the time the committal is reached, the applicant will have been in custody for almost three years. Given the joint committal is still to be concluded, it will be three years, perhaps more, before he is committed to stand trial. That is an extraordinarily lengthy time to spend on remand prior to the charges even reaching the trial court. Once committed, it will likely be the second half of 2025 before the applicant’s trial is reached, and may be longer.
In Roberts v The Queen,[29] the appellant had spent more than 20 years in custody for convictions which had been quashed, and faced a retrial. The Court there was dealing with the ‘exceptional circumstances’ test, and on the issue of delay before trial the Court stated:
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre‑trial delay, but what justifies bail is the need to prevent or mitigate future injustice.[30]
Whilst the focus is forward‑looking, the relevant pre‑trial delay comprises the time already spent in custody to date, and the further time expected to elapse before trial.[31] Here, the overall delay between charge and trial will exceed four years, and may reach five years.
[29][2021] VSCA 28.
[30]Ibid [10].
[31]Ibid [36].
In Re Zayneh,[32] Beach J stated:
If a trial does not take place until 2025, the applicant will have spent a period of four years on remand. A period of four years on remand (let alone one of five years if the applicant’s trial does not take place until 2026) is completely unacceptable. Absent the possibility that, in a particular case, the seriousness of the alleged offending and the strength of the prosecution case might be capable of overwhelming such an unacceptable period of delay, a delay of the order likely to occur in this case would ordinarily, on its own, constitute exceptional circumstances justifying a grant of bail.[33]
[32][2023] VSC 470.
[33]Ibid [34] (citations omitted).
Overall, the delay faced by the applicant is fairly described as ‘completely unacceptable’. The prosecution case is not overwhelming and the offending, while serious, is not the most serious example of large commercial quantity drug trafficking. Although the period on remand would not exceed any time the applicant might receive by way of sentence if convicted of these offences, it is nonetheless a very substantial delay, in circumstances where the applicant is presumed to be innocent of all charges. And of course, the applicant may be ultimately acquitted of some or all of the charges.
I am satisfied, based on the delay in this matter, that the applicant has established exceptional circumstances justifying the grant of bail.
Unacceptable risk
Delay remains relevant to an assessment of unacceptable risk. As stated by Kellam J in Mokbel v DPP (No 3),[34] the issue of detention by reason of unacceptable risk must be balanced with the likelihood of an accused being tried in the near future. An actual or anticipated delay may be of such a magnitude that risks which would, in other circumstances, be unacceptable may properly be viewed as acceptable.[35]
Section 4E(1)(a)(i) — the risk that the applicant would endanger the safety or welfare of any other person by committing an offence
[34][2002] VSC 393, [10].
[35]Barbaro v DPP (Cth) & Anor (2009) 20 VR 717, 728 [41] (Maxwell P, Vincent and Kellam JJA). See also Zayneh v The King [2023] VSCA 311 [6]–[7] (Walker, Taylor and Boyce JJA).
I deal first with whether the respondent has established that the applicant is an unacceptable risk of resuming, or recommencing, drug trafficking if granted bail. The seriousness of the charges and the strength of the prosecution case remain relevant considerations, together with all the other surrounding circumstances.
The applicant has relevant prior convictions, and a significant prior conviction from November 2005. He was the principal in a drug trafficking operation with a least two subordinates, and was subject to a suspended sentence at the time of the offending.[36] The offending itself dates back to 2002.[37] The applicant used his time on bail productively, and there is no evidence he resumed drug trafficking immediately upon his release. Indeed, there is no evidence he engaged in drug trafficking for almost two decades (accepting, of course, that part of that time was spent on bail, in custody or (presumably) on parole). The prior conviction is fairly described as dated.
[36]R v Tiburcy [2006] VSCA 244, [31].
[37]Ibid [5].
The applicant’s submission that he will be supported financially by his wife was not challenged. I am not satisfied that the applicant will be driven to resume trafficking in order to support himself. The applicant has previously complied with bail conditions, and used his time on bail positively.[38] While this conduct is also dated, it at least gives the Court some confidence that he will again abide by any conditions of bail. Further and more relevantly, there are a number of strict bail conditions that will meaningfully reduce the risk of the applicant reoffending, including limiting his access to electronic devices.
[38]Ibid [14].
In my view, the risk that the applicant will recommence drug trafficking, while subject to strict bail conditions and ongoing Court proceedings, is somewhat speculative. To the extent that there is a risk, I am not satisfied on the material that such a unacceptable.
Given this conclusion, it is not necessary to determine whether committing the offence of drug trafficking in the way engaged in by the applicant is captured by s 4E(1)(a)(i) of the Act.
Section 4E(1)(a)(iv) — the risk that the applicant would fail to surrender into custody in accordance with the conditions of bail
The seriousness of the charges, together with the likely sentence that would be imposed were the applicant convicted, provide him with an incentive to flee the jurisdiction. They are very relevant and significant surrounding circumstances. I accept that the applicant has previously complied with his bail while facing a term of imprisonment, but he was a younger man facing a lesser sentence.
The respondent points to conversations between the applicant and various AN0M users that show the applicant has overseas connections. There are references to the applicant obtaining AN0M handsets for ‘my family in Croatia’, needing an AN0M device for someone in the Netherlands, and referring to contacts in Thailand who ‘need to switch phones’. There is also a conversation between the applicant and his wife after AC is arrested, where the applicant asks whether they could get overseas to see her unwell father (this was during the Covid pandemic and borders were mostly closed subject to limited exceptions). The applicant suggests it could be good to get away because of ‘what happened’.
On the material I have, the existence of overseas drug contacts is not of great weight. It might be expected the applicant would have international drug suppliers; however, that does not mean those persons would want to involve themselves with or assist the applicant now that he has been arrested. There are no conversations with any international contacts where the applicant discusses leaving the country, obtaining false passports or the like. The applicant did not take any steps to leave Australia after the arrest of AC, or the arrest of SL, RF and RC, although he was clearly concerned by those events. The applicant’s father‑in‑law was unwell and has since died.
I treat with caution the applicant’s submission that upon arrest, the police did not find any material that shows the applicant has access to large sums of money, in circumstances where the applicant did not provide any passcodes and as a result, his electronic devices remain largely unexamined. Certainly, no sums of cash were located, and the applicant was not living a lavish lifestyle. The respondent submits that the large scale of the drug trafficking operation suggests there is a lot of money unaccounted for, but concedes they cannot say how much or where it is, beyond pointing to the applicant’s role at the apex of an organised crime syndicate. Approximately 10 days prior to his arrest, the applicant stated he was four million dollars in debt, due to recent problems including the arrest of three co‑accused. There is nothing before me that points to the applicant having the means or connections to flee the jurisdiction, beyond the fact that (allegedly) he is a serious drug trafficker with international criminal connections.
I do not, however, accept the applicant’s submission that the risk of flight is fanciful. In my view, given the seriousness of the charges, the term of imprisonment faced by the applicant if convicted, and the applicant’s role in the syndicate, there is a genuine risk he may seek to avoid the consequences of his alleged actions by fleeing the jurisdiction. The real question is whether the respondent has established that such a risk is unacceptable.
Mr Grech impressed me as sensible and honest, and I accept he would report the applicant to the informant if he became aware of any bail violations. Mr Grech lives 30 minutes’ drive away and works full‑time, both of which limit his capacity to monitor the applicant. However, I accept he will both speak to and visit the applicant often if the applicant is granted bail. The proposed surety will go some way to reducing risk. It is not a great sum of money, given the seriousness of the charges, but it is still substantial. In my view, the prospect that his friend would lose his house would go some way to deter the applicant from leaving the jurisdiction.
The applicant does have ties to the jurisdiction, consisting of his wife, young children, older son and broader family. The capacity of his wife to reduce risk is questionable. It is alleged she also had an AN0M device, and messages ascribed to her show she was aware, at least to some extent, of the applicant’s drug trafficking enterprise and did not disapprove. The proposed bail conditions place significant obligations on Mrs Tiburcy. However, she has given an undertaking on oath to the Court to surrender her passport and those of her children to the informant within 24 hours of the applicant being granted bail, and not apply for same for as long as the passports remain with the informant. She has also undertaken to immediately contact the informant upon becoming aware that the applicant has breached any of his bail conditions. The consequences of breaching an undertaking have been explained to her, and in the circumstances, I accept they go some way to reducing risk.
The availability of the BailSafe program is a relevant factor in the applicant’s favour.[39] Wearing an electronic monitoring device is a significant intrusion into the applicant’s privacy, and he is willing to wear such a device and privately fund the program. Of course, it is not foolproof. It is capable of being interfered with or removed, and whilst that would trigger an alert, the whereabouts of the applicant once it is removed would be unknown. I accept that the informant, and police more generally, do not have the time or resources to constantly monitor the applicant’s GPS location, or respond immediately to every alert. However, the applicant would know that at any given moment, the police may be observing his location and he may be watched. I accept the evidence of Mr Oppy that, if requested, they will ‘geofence’ certain areas so an alert will issue if the applicant leaves a geographical location or breaks a curfew.
[39]In considering Mr Oppy’s evidence, I have had regard to s 30A of the Bail Regulation 2021 (NSW), which sets out the minimum standards required in that state for electronic monitoring.
The electronic monitoring proposal mitigates the risk of the applicant absconding, but certainly does not eliminate it. If the applicant is determined to abscond and has the means to arrange it, then given the delay between any alert and ultimate notification of the informant (which would be at least 15 minutes and may be considerably longer, depending on the availability of the informant), the applicant might be able to leave the jurisdiction before police can apprehend him. However, no grant of bail is risk free, and that is not what is required under the Act.[40]
[40]Dale v DPP [2009] VSCA 212, [58].
A risk is unacceptable if it cannot be tolerated. A lengthy delay may render an otherwise unacceptable risk, acceptable. Here, for the risk to be ‘unacceptable’, the risk that the applicant might not appear must be sufficient to justify his continued detention for very lengthy period of time. 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, the conditions proposed by the applicant, which must be considered in their entirety, are onerous and will substantially reduce the risk of him fleeing the jurisdiction.
The question of what constitutes an unacceptable risk is not easily answered. As the Court of Appeal has observed, when considering whether an applicant for bail poses an unacceptable risk in the ways alleged, reasonable minds may well differ on the result.[41] In my view, in all the circumstances here, the respondent has not established that the applicant is an unacceptable risk of failing to answer his bail if granted bail on very strict conditions, including electronic monitoring by BailSafe.
[41]Ali El Nasher v DPP [2020] VSCA 144, [51] (Priest, T Forrest and Weinberg JJA).
The application is granted. I attach a copy of the conditions of bail.
THE COURT ORDERS THAT:
Steven TIBURCY (‘the applicant’) be admitted to bail on his own undertaking with one bail guarantee in the amount of $395,000.00 and on the following special conditions:
1.The applicant is to attend the Melbourne Magistrates’ Court on 20 May 2024 at 9:30am 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.
2.The applicant is to reside at [redacted], Gisborne in the State of Victoria (‘place of residence’).
3.The applicant must report to the Officer in Charge, or their nominee, at the Sunbury Police Station daily between 8:00am and 8:00pm commencing 6 April 2024.
4.The applicant must not leave the place of residence unless in the company of Tanja Tiburcy and/or Christopher Grech.
5.The applicant is to present himself at the front door of the place of residence upon the reasonable request of a member of Victoria Police.
6.The applicant is to remain and be present at the place of residence between the hours of 10:00pm and 6:00am, each day for the duration of the bail.
7.The applicant is to surrender any passports or other travel documents to the informant within 24 hours of release and must not apply for any other travel documents for the duration of the bail.
8.The applicant must not leave the state of Victoria.
9.The applicant must not attend any points of international departure.
10.The applicant is not to possess or use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under the Act.
11.The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution other than the informant.
12.The applicant is not to contact or associate with, either directly or indirectly, any other person charged with an offence in relation to Operation Ironside including Adam Currie, Steven Lench, Ross Finnigan, Ryan Crawford, Graeme Lench, Xavier Gavin and Mark Joannou.
13.The applicant is not to possess or use more than one mobile telephone.
14.The applicant:
a.Must provide the informant with the phone number, IMEI number and any password or PIN of that phone within 24 hours of first having access to that mobile telephone;
b.Must provide the informant with any change of password or PIN of the mobile telephone immediately upon that change;
c.Must produce the mobile telephone for inspection upon the request of any member of Victoria Police;
d.Must provide any password or PIN for the mobile telephone upon the request of any member of Victoria Police;
e.Must not engage in any encrypted communications; and
f.Must not have any applications on his mobile telephone that will allow for encrypted communication.
15.The applicant must carry his mobile telephone, which must be sufficiently charged, with him at all times when he is absent from his place of residence.
16.The applicant is not to use or access any other mobile telephone, tablet or other device that has encrypted communication capabilities or that has any applications installed that allow for encrypted communications.
17.The applicant must be subject to electronic monitoring for the duration of the bail period as follows:
a.Within 3 hours of his release and at his own expense, the applicant is to be fitted with an electronic monitoring device by BailSafe Australia (‘BailSafe’), calibrated to monitor his compliance with conditions 6, 8 and 9;
b.The applicant is to allow access to the place of residence to technicians of BailSafe for the purpose of installing beacons and any other necessary technology;
c.The applicant is not to remove the electronic monitoring device except by arrangement with BailSafe for the purposes of repair or replacement of the electronic monitoring device; and
d.The applicant must comply with all lawful requirements of the BailSafe electronic monitoring program.
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