Taylor vs DPP
[2020] VSCA 142
•4 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0087
| SHANNON TAYLOR | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 May 2020 |
| DATE OF JUDGMENT: | 4 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 142 |
| JUDGMENT APPEALED FROM: | Re Taylor [2020] VSC 146 (Lasry J) |
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CRIMINAL LAW – Bail – Appeal – Schedule 1 offence – Trafficking in a commercial quantity of a drug of dependence – Judge satisfied exceptional circumstances established – Judge concluded appellant was unacceptable risk – Whether judge erred in concluding no conditions could ameliorate risk – Decision open – Appeal dismissed – Bail Act 1977, ss 3AAA, 4AA, 4A, 4D, 4E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Gumbleton | Sarah Pratt & Associates |
| For the Respondent | Mr D Glynn | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
WEINBERG JA:
Introduction
On 24 October 2019, the appellant, Shannon Taylor, was charged with a number of offences, including trafficking in a commercial quantity of a drug of dependence, methylamphetamine;[1] being a prohibited person in possession of a firearm;[2] negligently dealing with the proceeds of crime;[3] possessing a drug of dependence;[4] and committing an indictable offence whilst on bail,[5] all offences allegedly having been committed the previous day.[6] For the purposes of the Bail Act 1977 (‘the Act’), trafficking in a commercial quantity of a drug of dependence is a Schedule 1 offence; so that, by virtue of s 4AA, bail must be refused unless the court is satisfied that exceptional circumstances exist that justify the grant of bail.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA(1).
[2]Firearms Act1996, s 5(1).
[3]Crimes Act 1958, s 194(4).
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73(1).
[5]Bail Act 1977, s 30B.
[6]Later, on 12 December 2019, the informant also charged the appellant with handling stolen goods, possessing cartridge ammunition without a licence and possessing a dangerous article.
Lasry J refused the appellant bail on 27 March 2020.[7] Although he was satisfied ‘that exceptional circumstances have been established, primarily on the basis of the inordinate delay that will occur, along with the impact that COVID-19 is likely to have on the prison population’,[8] the judge nonetheless refused bail because ‘there is an unacceptable risk that the applicant will continue to offend whilst on bail’.[9]
[7]Re Taylor [2020] VSC 146 (‘Reasons’).
[8]Ibid [51].
[9]Ibid [54].
By a Notice dated 26 April 2020,[10] the appellant appeals against the decision to refuse him bail on a ground that contends that the judge erred ‘when he determined that there were no conditions that could be imposed that would ameliorate the risk presented by the appellant on bail to an acceptable level’.
[10]The Notice of Appeal initially named the informant as the respondent. Since the parties agreed that the proper respondent should have been the Director of Public Prosecutions, we made an order accordingly substituting the Director as the respondent to the appeal.
It is clear that the appeal is to be determined according to House[11] principles.[12] In other words, this Court may only intervene if it appears that the primary judge has mistaken the facts; has acted on an erroneous principle of law; has taken into account irrelevant matters or has failed to take into account relevant matters; or has clearly given insufficient weight, or excessive weight, to some matter taken into account; or unless the decision is unreasonable or plainly unjust.
[11]House v The Queen (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ) (‘House’).
[12]Robinson v The Queen (2015) 47 VR 226 (‘Robinson’).
In our view, it is plain that the decision appealed from was correct. The appeal must therefore be dismissed.
We make it clear, however, that the judge’s finding that ‘there is no question that exceptional circumstances have been established, primarily on the basis of the inordinate delay that will occur, along with the impact that COVID-19 is likely to have on the prison population’,[13] was not put in issue on the appeal. Our decision must therefore be seen as limited solely to the issue of whether the judge was correct to find that the appellant relevantly posed an unacceptable risk.
[13]Reasons [51].
The appellant’s alleged offending
Lasry J summarised the appellant’s alleged offending as follows:[14]
[14]Reasons [9]–[15].
… On 23 October 2019 at 11 pm, Victoria Police conducted a traffic stop on a grey BMW Tourer that was parked in a rear bay of Autobrite Carwash in Seaford. The applicant was in the driver’s seat and his co-accused, Rhiannon Bartling, was in the front passenger seat. Police observed a baseball bat in the foot well of the driver’s seat.
Police approached the car and asked for the applicant’s driver’s licence. He first provided an Australia Post Keypass in the name of Bowen Taylor, but police observed he did not match the picture on the card. When confronted with this, the applicant provided his actual driver’s licence.
In the course of his interaction with police, the applicant handed over a snap lock bag containing a crystalline substance, which is alleged to be methylamphetamine. He was then arrested and, during the subsequent search of his person, police found a second bag of methylamphetamine in his pocket, a glass pipe, and a handwritten note of names, numbers and dollar amounts in his underwear. They also found $1,970 cash in his wallet.
Police directed Ms Bartling to exit the vehicle and sit on the curb. She was observed to be moving suspiciously, which prompted police to ask her to stand. Two snap lock bags containing a substance alleged to be methylamphetamine and a vial of a clear, viscous liquid, alleged to be 1,4 Butanediol, were located under where she had been sitting. She was then arrested.
A search of the vehicle was conducted, and police found several items, including:
• two snap lock bags of a white crystalline substance, which preliminary forensic testing indicates is one bag each of methylamphetamine and cocaine;
• three containers containing yellow capsules;
• $31,006.80 in cash;
• assorted ammunition;
• a .44 calibre Taurus Magnum revolver;
• a flick knife with attached window breaker; and
• the baseball bat.
Following his arrest, police searched the applicant’s house where nothing further was seized. They also searched the co-accused’s residence and seized handwritten ledgers, a CCTV system, multiple mobile phones and an iPad.
The DNA summary report, which became an exhibit on this hearing, indicates the applicant cannot be excluded as a contributor to DNA located on the plastic bags of suspected drugs found inside the vehicle and the firearm. As previously stated, forensic analysis of these items remains outstanding.
On 19 December 2019, Ms Bartling — who faces similar charges to the appellant and is pregnant with his child — was granted bail in the Magistrates’ Court.
The appellant’s personal circumstances
Lasry J described the appellant’s personal circumstances as follows:[15]
The applicant is 31 years of age. He reported experiencing a difficult childhood and began to socialise with a negative peer group. His father died by suicide when he was 13 years of age, which was reported to have had a significant effect on him. He began living on his own from the age of 16; although he now has a close and supportive relationship with his mother and younger half-sister.
Following his expulsion in Year 10, he attempted two apprenticeships, which he did not complete because of his criminal activities. The applicant has worked infrequently as a labourer, but does not appear to have maintained stable employment.
The applicant has a long history of substance use. He began consuming alcohol heavily after his father’s death. At age 18, his alcohol consumption declined as he began using speed, ecstasy and, eventually, methylamphetamine. He reported periods of abstinence from methylamphetamine for three to six months before resuming due to life stressors. In May 2019, the applicant was hospitalised after being shot in the leg, and following his release his use of methylamphetamine increased.
The applicant met his current partner in August 2019. She resides in Sydney with her seven-year-old daughter. The applicant reported that her daughter has been a motivation for him to address his substance use issues and antisocial activity.
According to a report prepared by psychologist Miriam Latif on 5 December 2019, the applicant was ‘likely suffering from depressive symptoms associated with Adjustment Disorder’ at the time of the alleged offending in October 2019. A second psychological report by Lisa Jackson, dated 25 March 2020, noted the applicant has reported symptoms consistent with Post-Traumatic Stress Disorder (‘PTSD’) and Generalised Anxiety Disorder.
The applicant has an extensive criminal history dating back to 2004. His history includes offences related to driving, weapons and ammunition, theft, burglary, drug possession and trafficking, violence, affray, property damage, receiving stolen goods and dealing with suspected proceeds of crime.
He also has convictions for committing an indictable offence on bail in April 2018, contravening a conduct condition of bail in 2015, failing to answer bail in 2009 and 2011, contravening a community correction order in 2018, contravening a suspended sentence order in 2015, and failing to comply with a community-based order in 2011.
[15]Reasons [20]–[26].
The primary judge’s findings
Before Lasry J, counsel for the respondent ultimately conceded that the delay occasioned by the COVID-19 crisis may be considered exceptional circumstances, but maintained opposition to bail on the basis that the appellant posed an unacceptable risk. As we have indicated, the respondent did not seek to resile from the concession that exceptional circumstances exist.
Counsel relied on the fact that the appellant, a prohibited person, nevertheless had access to a firearm and ammunition on 23 October 2019, in circumstances where he has two previous convictions for firearms offences in March 2015 and April 2018. The presence of a loaded firearm, counsel submitted, elevated the seriousness of the alleged drug-trafficking. Further, in recorded telephone conversations of the appellant in custody (‘Arunta’ calls), he apparently made admissions in relation to the possession of the firearm (indicating that he was using it for personal protection). Other excerpts from these conversations appear to indicate that the appellant continued drug trafficking whilst in custody with the assistance of his current partner. He also appears to discuss with others the prospect that Ms Bartling will take responsibility for the drugs located by the police when they were arrested, and attempted to pass messages to his co-accused about their charges. The respondent’s counsel also submitted that the appellant’s criminal history demonstrates his disregard for court orders and bail conditions. The Court therefore could not have confidence that the appellant would abide by any conditions.
As we have said, Lasry J was satisfied of exceptional circumstances, but was persuaded that the risk of releasing the appellant on bail was unacceptable, and that there are no conditions that the Court could impose that would ameliorate the risk. He said:[16]
It seems plain that, based on the circumstances of the alleged offending, including the possession of a firearm and a baseball bat, and his previous criminal history, the applicant poses an unacceptable risk to the community’s safety.
I am also of the view that there is an unacceptable risk that the applicant will continue to offend whilst on bail. He has a significant criminal history of contravening court orders and authoritative conditions. It appears from the Arunta calls that I have referred to, the applicant was not dissuaded even whilst in custody and continued to engage in illegal activities.
[16]Reasons [53]–[54].
The appellant’s submissions in this Court
In this Court, counsel for the appellant accepted that it was reasonably open to Lasry J to conclude that, if granted bail, the appellant was an unacceptable risk to the safety of the community and of re-offending — if bail were granted at large. Counsel for the appellant conceded that such a finding was open having regard to:
· the seriousness of the alleged offending, including possession of a firearm whilst a prohibited person;
· the alleged offending occurred whilst on bail;
· the long history of substance abuse;
· the appellant’s criminal history dating back to 2004, which included two prior convictions for possessing firearms and breaching court orders, including bail; and
· in particular, the Arunta call obtained by investigators alleging further drug trafficking from prison.
Despite these matters, counsel for the appellant submitted that it was not reasonably open for Lasry J to conclude that the risk presented by the appellant could not be reduced to an acceptable level by appropriately stringent conditions of bail. It was submitted that unacceptable risks can be rendered acceptable by appropriate conditions. In this case, coupled with the significant delay resulting from the COVID-19 outbreak, the ‘centrepiece’ of the appellant’s application was that he had available to him intensive residential drug treatment for a period of 90 days at DayHab Treatment Centre (‘DayHab’). Counsel submitted that this Court previously has considered a grant of bail that is conditional upon an applicant entering and remaining in a residential drug rehabilitation facility as ‘unusual’. Such a condition severely restricts freedom and association, and means that any period pre-trial can be used constructively to tackle an applicant’s drug addiction and underlying reason for his or her offending.[17]
[17]Robinson, 240 [50] (Maxwell P and Redlich JA).
Counsel for the appellant relied on the following observations made by Lasry J concerning the drug-treatment services available to the appellant:[18]
It was then submitted that the applicant’s criminal history is indicative of someone motivated by his addiction to illicit substances, particularly methylamphetamine. He was assessed in December 2019 as a suitable candidate for the 90-day residential treatment program at the DayHab Treatment Centre (‘DayHab’) in Melbourne. I understand that there is a bed still available for him. It was put that this would be the first time he will have had the opportunity to engage in drug treatment of this magnitude. The cost of this treatment or assistance will apparently be largely covered by his private health insurance.
In support of this submission, I received an affidavit from Justin Vincent, an intake and assessment officer at DayHab, in which he described, amongst other things, the security measures at the facility. The applicant would reside at a residential facility in Ringwood East, which is under 24-hour camera surveillance and is staffed by a registered nurse and support worker. A private hospital vehicle would shuttle him to the DayHab facility in Glen Waverly each day along with other residents of the Ringwood East facility and two staff members. Mr Vincent stated that if reporting conditions were imposed, a support worker would transport and supervise the applicant while he reported at the Glen Waverly police station. DayHab would also give an undertaking to report any breaches of bail conditions to the relevant authorities, including the informant.
[18]Reasons [35]–[36].
The appellant’s counsel submitted that, Lasry J having accepted those facts, it ought to have followed that the appellant had demonstrated that the unacceptable risk he otherwise presented was substantially reduced by his participation in the program in the following ways: first, the appellant was limited in his movements and associations; secondly, his whereabouts would be known; thirdly, any breaches would be reported; and, fourthly, the treatment he received would promote the appellant’s rehabilitation and would reduce his risk of drug use and reoffending.[19] The effect of the stringent bail conditions, counsel submitted, was that the appellant would have no option but to participate in treatment and remain drug free.[20]
[19]Robinson, 240 [51].
[20]Ibid 240 [53].
Counsel for the appellant submitted further that, in assessing whether the appellant was an acceptable risk with appropriate conditions in place, it was incumbent on the judge to have regard to the delay caused by the pandemic. Assessing risk, it was submitted, is not just assessing the likelihood or degree of the risk. The time that will elapse before the appellant’s trial must also be a factor that will bear upon whether the risk ultimately is acceptable. In the present case, the time that will elapse before the appellant is brought to trial is indeterminate. The delay is of a species never before encountered in this State’s system of criminal justice. That truly exceptional delay, counsel submitted, informs whether the risk is acceptable in all the circumstances. It must be borne in mind, counsel submitted, that s 25(2)(c) of the Charter of Human Rights and Responsibilities Act 1986 provides that a person charged with an offence has a right ‘to be tried without unreasonable delay’. So much must have an effect on the question of bail. The only ‘remedy’ the Court can provide in the circumstances is to release him on bail.
Ultimately, counsel for the appellant submitted that it follows from the foregoing that ‘once appropriately restrictive conditions are in place, given the exceptional delay, it was not open to conclude that the respondent had satisfied the burden of establishing that the appellant was an unacceptable risk and bail ought to have been granted’.
The respondent’s submissions
With respect to the appellant’s alleged offending, counsel for the respondent submitted that the appellant had 4.2 grams of a substance containing methylamphetamine on his person, and what is commonly referred to as a ‘tick sheet’ in his underpants. The tick sheet appears to show that the appellant had trafficked a total of 742 grams of methylamphetamine to ten different people in exchange for $54,013.75. He had $1,970 cash in his wallet. On the ground near where Ms Bartling was sitting during the initial search were two bags containing 78.8 grams of a substance which contained methylamphetamine, and a quantity of 1,4 butanediol. In the car was 2.2 grams of substance containing methylamphetamine; 0.7 grams of a substance containing cocaine; a stolen .44 calibre revolver; ammunition for that revolver; $31,006.80 in cash; a flick knife; and a baseball bat. DNA results provide extremely strong support for the proposition that the appellant had contributed to the DNA detected on the bags that were found near Ms Bartling; and also showed extremely strong support for the proposition that the appellant had contributed to the DNA on the trigger and trigger guard of the revolver.
Significantly, counsel for the respondent submitted, the appellant was on bail when arrested. Moreover, he made a number of telephone calls from the Melbourne Assessment Prison between 1 and 9 November 2019 which appear to demonstrate an ongoing involvement in drug trafficking by the appellant from prison (and admissions in relation to the revolver). The appellant also has an extensive criminal history, including for firearms offences, drug trafficking and bail offences. He has also breached corrections orders.
In light of these matters, counsel submitted, the primary judge’s decision was neither unreasonable nor plainly unjust. As to the argument that it was not open to the judge to conclude that the risks could not be ameliorated by proposed conditions, the respondent’s counsel submitted that, although the availability of a residential drug treatment program may persuade a court that risks that would otherwise be unacceptable can be made acceptable, that determination must be made on a case by case basis, based on the facts particular to the individual case.
Counsel submitted that the proposed program in the present case was of 90 days’ duration. This represents a negligible part of the time that the appellant would be on bail (if granted). Although the appellant does appear to have a drug problem, the proposition that addressing this problem would ameliorate the risk of re-offending is, counsel submitted, highly questionable. The evidence suggests that the appellant was trafficking in drugs for significant profit, his personal drug use being merely incidental. Even if it could be concluded that drug rehabilitation was linked to the risks of reoffending, previous attempts at rehabilitation through corrections orders have failed. Thus, it could reasonably be concluded that the proposed treatment on this occasion would have insufficient likelihood of success as to render the risks acceptable.
The respondent’s counsel submitted that the appellant has breached every court order he has ever been given. A court could reasonably conclude that the prospects of the appellant complying with bail conditions are poor. Furthermore, it was contended that the focus on drug rehabilitation ignores other principal concerns, including the appellant’s possession of a handgun and ammunition, and his prior convictions for identical offending. He also possessed other weapons, and has prior convictions for violent offending.
Finally, counsel for the respondent submitted that it plainly was open to Lasry J to conclude that the risks posed by the appellant could not sufficiently be ameliorated by the conditions which were proposed, given the appellant’s criminal history; his disregard for court orders; his apparent continued involvement in drug activity on remand; and his history of weapons possession. The judge was keenly aware of the ‘inordinate’ delay. Making due allowance for that delay, it was open to the judge to find that the appellant was an unacceptable risk of committing further offences, or endangering the public, if released on bail, and that those risks could not be made acceptable through conditions of bail.
Discussion
We do not accept the appellant’s submissions. In our view, it was well open to Lasry J to be satisfied that that there is an unacceptable risk that the appellant would, if released on bail, endanger the safety or welfare of any person or commit an offence while on bail.[21] Indeed, we doubt that the contrary conclusion was open.
[21]See s 4E(1)(a)(i) and (ii) of the Act.
As Lasry J observed, the appellant, aged 31 years,[22] has an extensive criminal history, commencing in the Children’s Court on 22 March 2004, when he was placed on a good behaviour bond for theft of a motor car and other dishonesty offences.
[22]His date of birth is 27 February 1989.
Selecting those most relevant to the issues in this case, the appellant has the following significant convictions:
· on 7 May 2007, he was convicted and fined $400 in the Magistrates’ Court on charges of possessing and using amphetamine (and being an unaccompanied learner driver);
· on 7 November 2007, in the County Court, he was convicted and sentenced to a community based order (‘CBO’) of 12 months’ duration for aggravated burglary; intentionally causing injury; criminal damage; and theft;
· on 26 February 2009, in the Magistrates’ Court, he was convicted and sentenced to a CBO of 12 months’ duration for intentionally damaging property; using amphetamine; and failing to answer bail (and for various driving offences);
· on 18 May 2012, in the County Court, for recklessly causing serious injury and affray, he was sentenced to two years and nine months’ imprisonment (18 months of which was suspended);
· on 26 March 2015, in the Magistrates’ Court, he was convicted and sentenced to 14 months’ imprisonment and a 12 month CBO (and fined) for offences that included being a prohibited person in possession of a firearm; possessing ammunition without a licence; trafficking methylamphetamine; trafficking ecstasy; trafficking amphetamine; possessing amphetamine; possessing ecstasy; dealing with property suspected of being the proceeds of crime; contravening a conducted condition of bail; and theft;
· on 29 July 2016, in the Magistrates’ Court, he was convicted and sentenced to a community correction order (‘CCO’) for trafficking amphetamine and possessing ecstasy; and
· on 9 April 2018, in the Magistrates’ Court, he was convicted and sentenced to 12 months’ imprisonment for offences that included being a prohibited person in possession of a firearm; possessing an unregistered handgun; possessing ammunition without a licence; possessing a dangerous article; possessing a prohibited weapon; possessing GHB; possessing ecstasy; possessing methamphetamine; possessing LSD; possessing ketamine; possessing steroids; committing an indictable offence on bail; receiving stolen goods; and theft of a motor vehicle.
It is important to note that the appellant has been dealt with on two occasions — 26 March 2015 and 9 April 2018 — for being a prohibited person in possession of a firearm, yet on the night of his arrest was allegedly once more found in possession of a firearm whilst a prohibited person, the firearm being a .44 calibre revolver (for which he also allegedly possessed appropriate ammunition). Additionally, the appellant has a number of prior convictions for trafficking in drugs of dependence, on 26 March 2015; 29 July 2016; and 9 April 2018; the first and third of those episodes apparently coinciding with his possession of firearms.
It is also important to note that the appellant has committed several bail offences — failing to answer bail on 26 February 2009; contravening a conduct condition of bail on 26 March 2015; and committing an indictable offence whilst on bail on 9 April 2018 — and has breached a number of court orders. Thus, the appellant breached the CBO imposed by the County Court on 7 November 2007 (for which he received a sentence of 12 months’ imprisonment, wholly suspended); the CBO imposed by the Magistrates’ Court on 26 February 2009 (for which he was sentenced to one month’s imprisonment, wholly suspended); the suspended sentence of imprisonment imposed by the County Court on 18 May 2012; and the CCO imposed by the Magistrates’ Court on 29 July 2016.
As we have indicated, there is no challenge to the primary judge’s finding that the appellant has satisfied the burden of showing that exceptional circumstances exist that justify the grant of bail on the charge of trafficking in a commercial quantity of a drug of dependence.
Having found the existence of exceptional circumstances, Lasry J was obliged by ss 4A(4) and 4D(1)(a) of the Act to apply ‘the unacceptable risk test’. The unacceptable risk test, found in s 4E(1), requires a court to refuse bail if the ‘prosecutor’ satisfies the court[23] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(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.
[23]Subsection 4E(2).
In considering whether any relevant risk is unacceptable, s 4E(3) requires the court to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk. Thus, so far as is presently relevant, by reason of s 3AAA of the Act, the court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g) the accused’s personal circumstances, associations, home environment and background;
…
(i) the availability of treatment or bail support services;
…
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
...
And we note that, when interpreting the Act, the court is required by s 1B to take into account (among other things) that:
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
By the very fact that it is a Schedule 1 offence, trafficking in not less than a commercial quantity of a drug of dependence must by that reason alone be regarded as a serious offence. In the instant case, we consider that the fact that the appellant had to hand a .44 calibre revolver (and ammunition) and other weapons is a feature that renders his offending an objectively serious example of the trafficking offence. Further, judged by the size of the transactions recorded in the tick book, the appellant’s appears to have been a substantial business trading in illicit drugs. And in light of the Arunta calls, it is a business which he seems to have been determined to maintain despite being in custody. Moreover, having regard to the circumstances of the alleged offending — including that the appellant handed to police a bag apparently containing methylamphetamine; was found with a second bag on his person apparently containing methylamphetamine; had a tick book recording transactions in his underwear; and had the accoutrements of drug trafficking close to hand — we consider the prosecution case to be strong.
Additionally, as we have observed, the appellant has an extensive criminal history which involves previous instances of trafficking in a drug of dependence and possessing firearms whilst prohibited. He was on bail and summons when he allegedly committed the present offences, and has on at least three past occasions failed to adhere to conditions of bail. Indeed, as his breaches of CBOs, a CCO and a suspended sentence of imprisonment demonstrate, he has been less than assiduous in his compliance with court orders.
It might be acknowledged that the appellant has treatment under strict conditions available to him, but that is for 90 days only; following which, the appellant will — apart from the proposed surety — be left largely to his own devices in deciding whether to comply with bail conditions (including not committing any further offences). According to current information, the appellant’s committal can proceed on 12 February 2021, meaning that the appellant will spend eight or nine months in custody before the next stage in the prosecution can proceed. Although that may be thought to be an inordinate delay, should the appellant be convicted of the principal charges that he faces — and, as we have said, the prosecution case appears strong — we consider that the appellant will likely be sentenced to a custodial sentence, the length of which will far exceed the period of his remand.
In our view, these circumstances compelled the view that there is an unacceptable risk that the appellant if released on bail will endanger the safety or welfare of persons, or commit an offence whilst on bail. There is thus no substance in the contention that Lasry J should have reached the opposite conclusion.
Conclusion
The appeal must be dismissed.
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