Re Trakci
[2022] VSC 530
•31 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0211
| IN THE MATTER of the Bail Act 1977 |
| -and- |
| IN THE MATTER of an application for bail by YASIN TRAKCI |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 August 2022 |
DATE OF ORDERS: | 31 August 2022 |
DATE OF REASONS: | 8 September 2022 |
CASE MAY BE CITED AS: | Re Trakci |
MEDIUM NEUTRAL CITATION: | [2022] VSC 530 |
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CRIMINAL LAW – BAIL – Charges of trafficking drug of dependence, possessing drug of dependence, possessing prohibited weapon, being a prohibited person in possession of an imitation firearm, dealing with property suspected of being proceeds of crime, handling stolen goods and committing an indictable offence whilst on bail – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk – Residential rehabilitation program available – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Marcs | Emma Turnbull Lawyers |
| For the Respondent | Mr A Singh | Legal Services Department, Victoria Police |
HIS HONOUR:
At the conclusion of the hearing, I granted bail to the applicant. What follows are my reasons for making that order.
By application filed 16 August 2022, the applicant applied for bail in this Court in relation to the following charges brought by Senior Constable Christopher Leonard (‘Leonard charges’):
(a) two counts of trafficking in a drug of dependence;
(b) two counts of possessing a drug of dependence;
(c) two counts of possessing a prohibited weapon;
(d) being a prohibited person in possession of an imitation firearm;
(e) dealing with property suspected of being the proceeds of crime, namely $16,500;
(f) handling stolen goods; and
(g) committing an indictable offence whilst on bail.
The applicant was arrested on 10 June 2022. He has been in custody since his arrest. He was refused bail in the Heidelberg Magistrates’ Court on 8 August 2022 on the basis that he failed to show exceptional circumstances justifying the grant of bail.
At the time of the alleged offending, the applicant was on bail in respect of the following charges:
(a) trafficking in a drug of dependence, possessing a drug of dependence and driving whilst suspended brought by Informant Reynolds; and
(b) trafficking in a drug of dependence, five counts of possessing a drug of dependence and committing an indictable offence whilst on bail brought by Informant Jovel.[1]
The applicant’s bail in respect of both matters was revoked following his remand on the Leonard charges.
[1]The material, at times, refers to the informant for these charges as being ‘Informant Luis Polanco’. I note that this is the same person as Informant Luis Jovel.
The alleged offending
Although it is the charges brought by Senior Constable Leonard that leads to the applicant’s current remand, it is convenient to refer to the alleged offending in chronological order.
Reynolds charges
On 4 September 2021, the applicant was observed driving a Volkswagen Golf motor vehicle. Police intercepted the vehicle in Reservoir. As police approached the vehicle, they observed the applicant moving around the vehicle attempting to conceal items.
The applicant produced his driver’s licence. Checks of his licence were conducted and showed the applicant was a suspended driver. The applicant’s vehicle was searched purportedly pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act 1982. A small zip lock bag containing a crystal white substance believed to be methylamphetamine was located. The applicant was arrested and taken to the Reservoir Police Station. Whilst in custody, two medium zip lock bags containing approximately 15 grams of a combined crystal white substance believed to be methylamphetamine were found by police on the applicant’s person.
The prosecution allege that the bags were weighed, packaged for sale and of a traffickable quantity. While in custody, the applicant told police that one of the bags was his and that the other belonged to his housemates. He denied trafficking methylamphetamine and stated that a sum of cash found on him was for rent.
Jovel charges
On 15 September 2021, police executed a Drugs, Poisons and Controlled Substances Act search warrant at an address in Reservoir, where the applicant was located. Upon entry, police observed a clear 600ml bottle on the coffee table in which the contents had started to solidify. Due to the appearance, police suspected it to be 1,4 Butanediol. A search of the property located the following:
(a) approximately two grams of methylamphetamine;
(b) $480 cash;
(c) a ‘Victoria Police’ labelled torch;
(d) several dozen tablets of prescription medications; and
(e) two mobile phones for which the applicant refused to provide the PIN codes.
While in custody, the applicant denied trafficking the drugs and said that the 1,4 Butanediol[2] and methylamphetamine were for his personal use.
[2]The respondent alleges that the quantity located was between 550 grams and 600 grams.
Leonard charges
On 10 June 2022, police executed a search warrant at an address in Reservoir. The applicant and his partner were located at the property. During the search of the property, police located a number of items, including:
(a) several plastic zip lock bags containing a crystal like substance;
(b) clear viscous liquid in multiple water bottles;
(c) clear viscous liquid in a plastic special glue container;
(d) clear viscous liquid in a plastic coke bottle;
(e) black flick knife;
(f) blue laser light;
(g) a black imitation firearm and green imitation firearm;
(h) part of an imitation firearm;
(i) cash in the sum of $16,500;
(j) assorted jewellery in a black bag;
(k) several mobile phones; and
(l) a notebook containing notes on how to grow cannabis.
Police allege that a search of the applicant’s phone revealed messages relating to drug trafficking.
During his record of interview, the applicant told police that he lives at the property. He admitted to possessing the methylamphetamine found during the search, as well as the 1,4 Butanediol,[3] knife and laser. He stated that he had no knowledge of the money located at the property.
[3]The respondent alleges that the quantity located of 1,4 Butanediol was 280 grams and the quantity of methylamphetamine located was 30 grams.
The applicable test for bail
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 Bail Act 1977 (‘the Act’).
In order to be granted bail, the Court must be satisfied that there are exceptional circumstances justifying the grant of bail.[4] That is because the applicant is charged in the Leonard matter with multiple schedule 2 offences, namely two counts of trafficking a drug of dependence[5] and one count of committing an indictable offence whilst on bail.[6] This offending is alleged to have occurred whilst the applicant was on bail for other schedule 2 offences, namely the two earlier charges of trafficking a drug of dependence[7] and one charge of committing an indictable offence whilst on bail.[8]
[4]The Act, s 4AA(2)(c)(iii).
[5]Ibid sch 2, item 24(b).
[6]Ibid sch 2, item 30.
[7]One count charged by Informant Jovel and one count charged by Informant Reynolds.
[8]Charged by Informant Jovel.
In determining 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.[9] The phrase ‘exceptional circumstances’ is not defined in the Act. In short, the totality of the circumstances relied upon by the applicant must take the case out of the ordinary such that bail is justified.[10]
[9]The Act, s 4A(3).
[10]See, eg, Roberts v The Queen [2021] VSCA 28; Re KE [2021] VSC 175.
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’.[11] That is, 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 a risk is an unacceptable risk.[12] In considering this, the Court must again take into account the surrounding circumstances contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[13]
[11]The Act, s 4D(1)(a).
[12]Ibid s 4E(1)-(2).
[13]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 34 years old. He has the support of his mother, father, younger brother and uncle. The applicant has a one-year-old daughter who remains in the care of a family member. The applicant is currently in the process of taking steps to regain custody of his daughter.
The applicant reports good health and has no diagnosed mental health disorders.
Criminal history
Before turning to the matters relied on by the applicant to establish exceptional circumstances, it is necessary to refer to the applicant’s criminal history. The applicant has an extensive and concerning criminal history, spanning 2009 to 2021, as follows:
(a) in June 2009, the applicant was sentenced to 42 months’ imprisonment with a non-parole period of 27 months for trafficking in a drug of dependence, possessing a drug of dependence, using an unregistered handgun without a licence and knowingly deal with proceeds of crime;[14]
[14]This was the sentence imposed on appeal in October 2010.
(b) in March 2013, the applicant was sentenced to one month imprisonment, wholly suspended, for possessing methylamphetamine and possessing a drug of dependence;
(c) in March 2018, the applicant was sentenced to 16 days’ imprisonment and a 12 month Community Correction Order (‘CCO’)[15] for driving a motor vehicle without a licence, stating a false name, failing to answer bail, dealing in stolen goods, possessing a controlled weapon without an excuse and possessing a drug of dependence;
[15]A contravention of this CCO was found proven in February 2019.
(d) in February 2019, the applicant was sentenced to eight months’ imprisonment and a 12 month CCO for trafficking methylamphetamine, possessing a drug of dependence and dealing with property suspected of being the proceeds of crime;
(e) in August 2019, the applicant was suspended from driving for 28 days for theft of a motor vehicle;
(f) in June 2020, the applicant was found guilty and sentenced to six months’ imprisonment and a CCO for 18 months duration for trafficking methylamphetamine, trafficking 1,4 Butanediol, possessing cannabis, possessing cocaine, possessing a drug of dependence, possessing a prohibited weapon without an exemption and dealing with property suspected of being the proceeds of crime; and
(g) in October 2021, the applicant was convicted of theft of a motor vehicle.
Applicant’s submissions
The applicant has been accepted into a residential drug rehabilitation program at the Cottage in Shepparton (‘the Cottage’) and says that, this combined with other factors, makes his circumstances exceptional. Mr Aaron Gilhooley, the Operations Manager of the Cottage, gave evidence on the application. Mr Gilhooley explained that the applicant would live at the Cottage and participate in the program for at least 16 weeks, after which he will transition back into the community. Should the applicant abscond, return a positive urine sample or otherwise fail to comply with the Cottage’s guidelines, the informant will be notified. The applicant submitted that drug abuse has been a major cause of his criminal behaviour and that residential support at the Cottage will provide him with an opportunity to address his addiction.
Further, the applicant submitted that the following factors, in combination, support his contention that there are exceptional circumstances justifying the grant of bail:
(a) the family support of his parents, younger brother and uncle. Subsequent to the filing of the application for bail, the applicant’s uncle offered to provide a surety in the amount of $10,000;
(b) the applicant is engaged with the Family Drug Treatment Court in relation to his one-year-old daughter. The applicant submitted that he has a genuine desire to rehabilitate and abstain from drug use so that he can be more involved in his daughter’s life;
(c) the potential delay if these matters do not resolve at the contest mention listed on 4 October 2022. The applicant submitted that if the matters do not resolve, there will need to be sufficient time for drug analysis and DNA and fingerprint analysis to occur. He said that any delay will be in excess of six months and that any contested hearing is unlikely to take place until late 2023;
(d) the onerous conditions on remand noting the applicant has spent two 14 day periods in isolation due to COVID-19 restrictions; and
(e) the attitude of Informant Leonard. At the bail application at the Heidelberg Magistrates’ Court, Informant Leonard gave evidence that he was not opposed to the grant of bail should the applicant reside at the Cottage.[16]
[16]In regards to the above combination of factors amounting to exceptional circumstances, the applicant relies on Re Booth [2022] VSC 419.
The applicant conceded that the prosecution case cannot be described as weak, however, he submitted that there remains issues to be tried in relation to whether the applicant was in possession of certain items as alleged. He also submitted that the precise nature and quantum of the substances seized is unknown.
As to unacceptable risk, the applicant submitted that any risk can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, namely with the Cottage, and an order that the applicant comply with all directions made by staff at the Cottage.
Respondent’s submissions
The respondent initially submitted that the combination of factors relied on by the applicant did not establish the existence of exceptional circumstances justifying the grant of bail. However, following the proposed surety by the applicant’s uncle, the respondent altered its position and submitted that it was open to the Court to find that there were exceptional circumstances justifying the grant of bail. The respondent did not oppose the Court making a finding of exceptional circumstances.
The respondent did oppose bail on the basis that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail or failing to surrender into custody in accordance with the conditions of bail. In this regard, the respondent submitted that the applicant has shown a willingness to continue supplying drugs to the community, endangering the health of those around him.
The respondent noted that the applicant has been afforded several rehabilitative opportunities in the past, however, he has failed to address his drug addiction. The respondent submitted that when the applicant was previously on a CCO, he would return positive drug tests.
The respondent noted that the applicant was on two counts of bail at the time of the Leonard charges. The respondent submitted that the applicant, by committing the alleged offending giving rise to the Leonard charges, has demonstrated a blatant disregard for court orders. Further, the respondent submitted that the applicant’s criminal history shows that bail conditions do not deter him from continuing to offend and that, in the past, warrants have been issued for his arrest.
The respondent submitted that the charges are serious and that if the applicant were to be found guilty, he would likely receive a period of imprisonment of approximately 12 months duration.
Decision
Having regard to the matters raised by the applicant, while the matter is finely balanced, I consider that the applicant has met the threshold of exceptional circumstances through a combination of factors. Those factors include: the applicant’s proposed residential rehabilitation at the Cottage, the likely delay in this matter proceeding to trial and the proposed surety of the applicant’s uncle.
The opportunity for residential rehabilitation is particularly important in my overall assessment of determining that exceptional circumstances exist. It may increase or provide important material that may be relevant to the range of dispositions that may be available to the applicant should he be found guilty of the charges he is facing. Further, the community has an interest in providing the applicant with an opportunity to overcome his drug addiction which has been a significant factor in his lamentable criminal history.
As to the question of delay and sentence, it was accepted by the respondent that a contested hearing would likely not be until February 2023, some nine months after the remand of the applicant. That is likely to be the very earliest that the charges would be heard and I accept that there is a real risk that there will be further delay. I note that the date will not be fixed until the mention in October and that the pressures on Court time may make it possible that the matter is not listed for some months. On any view, this would exhaust a significant proportion of any sentence that might be imposed and may well exceed that which would be imposed. It may also limit the range of appropriate dispositions that may be imposed. I take into account that the applicant has a poor history of compliance with CCOs, but nevertheless a positive period in residential rehabilitation may enable him to present any plea in a more favourable light.
I am satisfied that there are exceptional circumstances.
As to the question of unacceptable risk, taking all of the circumstances into account, I am not satisfied that the respondent has established that the applicant represents an unacceptable risk, as set out in the Act. In my opinion, the greatest risk attaching to the applicant is that he may commit further offending whilst on bail. His criminal history is of particular concern in this regard and he has acknowledged previous breaches of bail and other court orders. Nevertheless, I am satisfied that under the treatment program that is contemplated, which involves a 16 week residential program, that there will be supervision and drug testing, and the staff at the Cottage have committed to reporting any non-compliance by the applicant. I am satisfied that the management of the Cottage will report any breaches of bail or absconding to both the informant and the Shepparton police, and that the risk of the applicant committing any further offences can be ameliorated to an acceptable level.
The applicant is aware that any breach of bail would have serious repercussions for him. It would likely lead to a cancellation of bail, would undermine any benefit that this treatment may have for him, including in respect of available sentencing dispositions, and may result in the loss of the surety proposed by his uncle. Given the relatively confined time between the grant of bail and any hearing in 2023, I am satisfied that these matters will impose a real impediment to any offending whilst he is on bail. The applicant will also have the therapeutic benefit of the program that should assist him to avoid succumbing to the temptation of drugs.
Further, I am satisfied that even though there has been a failed episode of residential treatment in the relatively recent past, that it is sufficiently explained and does not preclude me from finding that the risks are not unacceptable.
For these reasons, I granted bail to the applicant.
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