Souris v The Queen - [2020] SASC 171

Supreme Court of South Australia
(Criminal: Application)
SOURIS v THE QUEEN
[2020] SASC 171
Judgment of The Honourable Justice Livesey (ex tempore)
14 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with trafficking in a controlled drug (methylamphetamine). Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.
Held, allowing the application; bail is granted.
Bail Act 1985 (SA) s 14(2)(a), s 10; Controlled Substances Act 1984 (SA) s 32(3), s 52, referred to.

SOURIS v THE QUEEN
[2020] SASC 171
Criminal: Application for review of bail

LIVESEY J: This is an application for review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a Magistrate’s refusal to grant bail on 25 August 2020.
For the purposes of this review I have been assisted by the terms of the applicant’s application dated 2 September 2020, an affidavit affirmed by Ms Laura Goffeau on 8 September 2020, a home detention enquiry report dated 10 September 2020, which suggests that the residence of the applicant’s mother and stepfather is appropriate, and an affidavit of Ms Stacey Carter sworn 13 September 2020.
Circumstances of the alleged offending
The applicant has been charged on Information with trafficking in a controlled drug, namely methylamphetamine on 28 March 2020 contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
It is alleged that around 15 grams of a substance containing methylamphetamine was located in the possession of the applicant. The parties dispute the likely value of the substance. It may be that just over 8 grams of methylamphetamine was involved. The prosecution estimates a value of tens of thousands of dollars, and the defence, a few thousand dollars. It is not necessary to resolve that dispute.
The applicant was arrested after police observed his arrival in his utility at an address in Elizabeth Grove, which it is believed was associated with drug activity. Police observed the applicant arrive at the address, interact with another person and then drive away.
Police activated emergency lights and required the applicant to stop his utility. The applicant did so leaving his keys in the ignition and the engine running and headlights activated. Police observed that the applicant was anxious and pacing around, stating that he was disqualified from driving.
When the applicant showed police his photographic identification in his wallet, they observed a large sum of cash. There was around $2,200 in $50 denominations. Police ascertained that the applicant was the holder of a learner’s permit and was a person on parole. He had a criminal history of drug offending and he appeared nervous and his forehead sweaty. He admitted that he had “10 points of meth” in his possession.
The applicant was the sole occupant of his utility. Police searched the vehicle pursuant to s 52 of the Controlled Substances Act 1984 (SA). Police allege that underneath the driver’s seat they located a black magnetic keyholder which contained a medium-size clear plastic resealable bag with a clear white crystalline substance as well as a small plastic resealable bag containing a blue crystalline substance. Inside the centre console police allege they located another small plastic resealable bag with a clear white crystalline substance and a small plastic container containing a blue crystalline substance. A further $500 in $50 denominations was located underneath the stereo in a storage compartment.
Police also allege that a set of digital scales was found in the driver’s side door storage pocket. Two mobile phones were also seized. Police allege that during a subsequent search of premises, which it will be alleged are associated with the applicant, they located a plastic syringe, a small glass cup, a “poisons” container containing blue liquid and another small white plastic container sealed with a “chux cloth”. Police suspect that these items were used to colour methylamphetamine blue. In the same cupboard in which these items were located were a pile of letters addressed to the applicant.
The applicant did not initially apply for police bail. He did not apply for bail when he came before a Magistrate on 30 March 2020 either. However, his bail application on 25 August 2020 was refused because of:
1concern about a history of similar offending;
2the likelihood if found guilty of being sentenced to a lengthy term of imprisonment; and
3the risk of reoffending if released on bail or of not complying with the terms of bail.
When the matter came on for the committal hearing on 4 September 2020, no plea was entered and bail was not again sought. The applicant was remanded to Mount Gambier Prison. Before me earlier today the applicant contended that he is not likely to go to trial on the subject charge before late 2021, early 2022.
Circumstance of the applicant
The applicant’s criminal antecedents commence in 2012 with various motor vehicle offences, however in 2017 the applicant was imprisoned for four months in connection with what appears to have been his fourth drive whilst under disqualification offence, trafficking in a controlled drug and breaching a bond entered into in 2014. He was also convicted of possessing prescribed equipment and using or having possession of a prohibited weapon for which he was discharged without penalty.
Later in 2017 the applicant was again convicted of trafficking in a controlled drug (two counts) as well as possessing a firearm without a licence, and he was sentenced to five years, three months and three weeks with a non-parole period of two years commencing 6 July 2017. At the same time, he was convicted of failing to store ammunition separately from a firearm, possessing or using a dangerous article and manufacturing, selling, dealing etc, in prohibited weapons, for which he was convicted but received a firearms licence disqualification. The sentencing remarks of Judge Brebner included the following:
You were arrested and released on bail and while you were still on bail your premises were searched on 4 November 2016 and another quantity of methylamphetamine crystals which could have been sold for up to about $4,000 were located along with some of the recognised indicia of trafficking and about $1,400 in cash and some implements for smoking methylamphetamine were also found. It is plain that you were engaged in the continuing business of trafficking as of the time of this search.
Accordingly, it can be seen that at the time of the subject alleged offending the applicant remained on parole for trafficking offences.
According to correspondence from the Parole Board dated 21 August 2020, which was shown to me earlier today, as at 28 March 2020 the applicant had two years, three months and two days remaining on his earlier sentence. As would be expected, the terms of the applicant’s parole included conditions that he not commit any offence or any breach of the law, that he undertake and satisfactorily complete counselling for substance abuse, that he not possess any equipment, chemicals or implements used in the production, manufacture and distribution of illicit drugs and that he not drive a motor vehicle unless he was the holder of a current driver’s licence.
When arrested in connection with the subject alleged offending, the applicant refused to provide police with the pin number for his mobile phone, initially suggesting that he did not know it, but then explaining that he did not know what his former partner had put onto his phone: “she used to use it a lot and there's messages like … dealer or something like that on there and I just don’t, I just don't really want to, I'll speak to my lawyer and see what he says”.
The prosecution emphasises the strength of the prosecution case, the risk of flight and the fact of the alleged offending whilst on parole as reasons why the Court cannot be confident that the applicant can or will comply with bail conditions.
The applicant, by contrast, contends that he now has a child born in January 2020, that he has work available to him with his stepfather as an assistant to a delivery driver and that he can reside with his mother who will act as guarantor, and if necessary, provide a cash surety. These are all reasons why it is suggested that the Court can be confident of compliance. Finally, the applicant emphasises that the Parole Board did not cancel parole but added further conditions, including a curfew condition, recently.
Disposition of the application
The applicant is entitled to a presumption in favour of bail subject to that being displaced by the matters set out in s 10 of the Act.
In this case, and not without some hesitation, I have determined that the application for review of bail should succeed notwithstanding the gravity of the offence with which the applicant was taken into custody.
In my view the risk of similar offending, if not absconding, will be met by strict home detention conditions and a guarantee from his mother in the sum of $1,000. How the applicant performs on bail and at work will of course have a bearing on his eventual sentence, assuming that he is found guilty or pleads guilty. I am prepared to give the applicant the opportunity to show that he is capable of good behaviour and successful drug rehabilitation in the meantime.
Accordingly, the order of the court is that the application for a review of bail is allowed and bail is granted.
I will give the parties an opportunity to confer about the terms of the bail agreement.