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Re Application for Bail by 'M O' [2017] VSC 557 (18 September 2017)

Last Updated: 19 September 2017

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0179

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for Bail by ‘MO’ (a pseudonym)^[1]

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CRIMINAL LAW – Application for bail – Applicant charged with trafficking a large commercial quantity of heroin and dealing with proceeds of crime – Whether exceptional circumstances demonstrated – Whether applicant poses unacceptable risk of failing to surrender himself into custody – Lengthy and unacceptable delay – Exceptional circumstances not shown as applicant had admitted having trafficked large commercial quantity, and disputed only total quantum alleged and period of offending – Applicant had close ties outside jurisdiction and access to significant assets – Applicant unacceptable risk – Bail refused.

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HIS HONOUR:

1 On 13 September 2017, I heard an application by MO for bail. At the conclusion of that application, I indicated that bail would be refused. I said that I would provide reasons at a later date. These are those reasons.

2 The applicant is aged 52. He has been charged with the following offences:

1. The accused at Thomastown and other various places between 30 October 2014, and 17 December 2014 did traffick a drug of dependence namely diacetylmorphine (heroin), in a quantity that is not less than a large commercial quantity applicable to that drug. (Section 71 – Drugs Poisons and Controlled Substances Act 1981).

2. The accused at Wollert on 17 December did deal with property, namely $15,000 cash, knowing that it was the proceeds of crime. (Section 194 – Crimes Act 1958).

3 The particulars to charge 1 assert that, over the period of some six weeks or so specified in that charge, the applicant was a ‘controller’ of a syndicate that sold a total of approximately three kilograms of heroin, in four transactions, over the relevant period.

4 The particulars to charge 2 allege that the applicant was in possession of cash with serial numbers previously reported by police prior to the sale of heroin to the syndicate on 19 November 2014.

5 The applicant is one of six individuals charged in relation to the sale of heroin, between the dates specified. The charges are brought, as between dates offending, under the principles laid down in R v Giretti.^[2] Others members of the syndicate are said to have been ‘AA’, ‘KH’, ‘RM’, ‘MBW’, and ‘MD’. There was also a seventh person said to be involved, ‘XY’, who was aged less than 18 at the time. MD has since pleaded guilty, and been dealt with in the Magistrates’ Court on one charge of possessing proceeds of crime. XY was charged with trafficking a large commercial quantity of heroin but acquitted in the Children’s Court. Although KH was, at one stage, granted bail, he is presently back in custody. None of the other alleged offenders have been released on bail. The applicant has applied previously, unsuccessfully, for bail.

6 Section 4(2)(aa)(i) of the Bail Act 1977 makes it clear that the applicant, having been charged with an offence under s 71 of the Drugs, Poisons and Controlled Substances Act 1981, involving a large commercial quantity of heroin, must satisfy the Court, as a threshold matter, that ‘exceptional circumstances exist which justify the grant of bail’. He relies essentially upon the delay between his arrest in December 2014, and his earliest trial date which, I was told, is now August 2018. That is a period of some three and three quarter years, a delay that the prosecution properly acknowledges is completely unacceptable.

7 A delay of that order might well, and perhaps normally would, constitute exceptional circumstances which justify the grant of bail. This case, however, is unusual in one particular aspect. The applicant now acknowledges that he did, in fact, traffick in a large commercial quantity of heroin on 9 December 2014, one of the four transactions involving the sale of heroin particularised by the Crown. Indeed, that acknowledged act of trafficking involves just over a kilogram of heroin and that quantity, on its own, constitutes a large commercial quantity of that drug.

8 The prosecution opposes bail, both because it says there are no exceptional circumstances which justify the grant of bail, and because it contends that, even if there were such circumstances, the applicant is an unacceptable risk of failing to surrender himself into custody in answer to his bail.^[3]

9 The charges result from an investigation by the Joint Organised Crime Taskforce, code named ‘Operation GROTE’ into syndicated trafficking of large commercial quantities of heroin.

10 Prior to his arrest the applicant resided with his wife, two children, brother and elderly mother in Wollert, a suburb in northeast Melbourne. He has no criminal history, and this is his first time in custody.

11 Ordinarily, one would have to give careful consideration to the apparent strength of the prosecution case against the applicant when considering whether he poses an unacceptable risk of failing to meet his bail. There is a large body of material, much of it circumstantial in nature, which is said to support the overall allegation made against the applicant. I have studied that material. It includes various telephone intercepts, listening device product, the evidence of police officers who have engaged in surveillance. Importantly, it also includes statements from undercover police officers who dealt extensively throughout the period of the alleged offending with various syndicate members. There is direct evidence against the applicant in relation to his possession of a large sum of cash, some $220,000, said to be the proceeds of a sale of one kilogram of heroin, of some 60 percent purity, that took place at about that time. As indicated, that particular transaction was one of the four transactions particularised within the Giretti trafficking alleged.

12 The applicant, through his legal advisors, provided a defence response for trial, dated 7 April 2017. In substance, that defence response freely acknowledged that he was involved in the transaction concerning the sale of one kilogram of heroin, which took place on 9 December 2014. He further acknowledged that this quantity of heroin, sold on that day, exceeded a large commercial quantity of that drug, as it clearly did. For the sake of completeness, it should be noted that the applicant also admitted having, on 17 December 2014, been in possession of a sum of cash, being the proceeds of crime.

13 Nonetheless, the applicant denies having trafficked heroin on the other occasions alleged by the prosecution, namely 30 October 2014, 19 November 2014 and 15 December 2014. He says that, at a plea hearing (which must be in respect of the transaction involving the sale of heroin that took place on 9 December 2014) he will submit that the prosecution cannot establish that he was involved, directly or indirectly, or on the basis of joint criminal enterprise, in any of those other transactions.

14 It is difficult to see how, in the face of what constitutes a complete admission of guilt to trafficking in a large commercial quantity of heroin, and also to having been in possession of the proceeds of crime several days later, the applicant can legitimately establish, not merely that there is such delay as to make his case exceptional, which it plainly is, but also to make his case one involving ‘exceptional circumstances which justify the grant of bail’.

15 That is particularly so, given that the evidence that he trafficked a commercial quantity of heroin on 9 December 2014, would provide powerful, if not overwhelming support, for the prosecution case regarding the remaining allegations as to trafficking.

16 Even more to the point, the applicant is, in my view, now facing a lengthy term of imprisonment for the single act of trafficking to which he has effectively already pleaded guilty. It was submitted by senior counsel on his behalf that he might well receive a non-parole period of three years, or perhaps even less, for that offending. This would make any period in custody beyond about December of this year unfairly oppressive so far as he was concerned.

17 I indicated, in the course of argument, that I rejected that submission. In my view, the applicant is now facing a very substantial term of imprisonment for his acknowledged trafficking in a large commercial quantity, as part of a sophisticated heroin trafficking syndicate.

18 Sentences for trafficking in large commercial quantities of heroin have increased significantly in recent years. In Nguyen v The Queen^[4] the offender was sentenced for that offence to eight years’ imprisonment with a non-parole period of five years. More recently, in Director of Public Prosecutions (Cth) v Afford,^[5] which arose out of the importation by the respondent of 2.4 kilograms of heroin, the Court of Appeal resentenced him to ten years’ imprisonment with a non-parole period of seven years. The maximum penalty for that offence under Commonwealth law was the same as the applicant for bail faces under state law, namely life imprisonment. It is important to note that the respondent in Afford was sentenced merely as a courier, whereas the applicant is said to be the principal of the syndicate.^[6]

19 The evidence that I have seen suggests that the prosecution has a strong case against the applicant of having trafficked in the total amount of three kilograms of heroin over the period alleged. Of course, were he to be convicted of that entire body of trafficking, he would receive a very heavy sentence indeed, certainly one that is greatly in excess of the two and three quarter years that he has presently been in custody.

20 In other words, by remaining in custody, the applicant is effectively serving part of a sentence that he is inevitably destined to receive in respect of even the one transaction that he has acknowledged. The period he has presently been in custody is but a small component of what he may ultimately have to serve.

21 It follows that, although the delay in this case is exceptional, and unacceptable, I am not satisfied that there are ‘exceptional circumstances’ which ‘justify the grant of bail’. Bail is not justified because there is no point in granting it, in these unusual circumstances.

22 In addition, I am satisfied that the applicant poses an unacceptable risk of failing to surrender himself into custody in answer to any bail that might be granted. He has extensive family ties overseas, certainly to both Afghanistan and Pakistan. His extended family has substantial assets in those countries, including several properties, the sale of which could provide the means whereby he could leave this country, and never be brought back to face trial.

23 The applicant holds three passports, two of them Afghani. The prosecution conceded that these passports were expired. However, it was said that these passports indicated that his trips to Pakistan and Afghanistan have generally been to visit family, thereby indicating that he had strong familial ties to both countries.

24 Additionally, the prosecution provided information regarding the applicant’s travel movements over the past nine years. During this period of time, there were ten trips from Australia to Afghanistan. He spent a total of four and a half years overseas.

25 The applicant owns a house in Victoria. The prosecution said that, as it is likely to be forfeited as tainted property, he has few ties to the jurisdiction.

26 Two sureties, totalling a sum of over $600,000 were proposed. I heard evidence regarding each of them. The prosecution submitted that, given the gravity of the charges that the applicant is facing, those sureties did not ameliorate the risk that the applicant would abscond overseas. I should add that I had serious misgivings regarding the appropriateness of the sureties put forward.

27 Additionally, I was told that about $600,000 had been paid by undercover operatives, which remained unaccounted for. One might readily infer that the applicant has access to some significant portion of the missing money.

28 I have spoken of the unacceptable delay that has occurred in this matter. I note that a considerable part of that delay was occasioned by an abortive challenge, by way of interlocutory appeal, brought to the Court of Appeal by the applicant’s co-offenders. It is true that he was not party to that proceeding, but it seems that he took no steps to have his case heard separately from the other members of the group. While such an application would almost certainly have been resisted by the Crown, and probably successfully so, it was an option available to him, which he chose not to take up.

29 It was for these reasons that I refused bail.

^[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and other parties.

^[2] (1986) 24 A Crim R 112.

^[3] Bail Act 1977 s 4(2)(d)(i).

^[4] [2015] VSCA 76.

^[5] [2017] VSCA 201 (‘Afford’).

^[6] There are other examples of very heavy sentences being imposed upon couriers importing commercial quantities of heroin, which are cited in Afford. See the discussion of these cases at paragraphs [41] and [42] of Afford. Sentences of ten years and more seem common now for importing quantities of heroin not dissimilar to that said to have been trafficked by the applicant. Yet these sentences are imposed upon couriers, rather than principals.