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Supreme Court of Victoria |
Last Updated: 29 November 2022
S ECR 2022 0288
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IN THE MATTER of the Bail Act 1977
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Bail – Applicant charged with Schedule 1
offences of trafficking not less than a large commercial quantity
of
methylamphetamine and cocaine – Whether exceptional circumstances
justifying grant of bail – Whether unacceptable
risk – Bail refused
– Bail Act 1977, s 3AAA, s 4A, s 4AA, s 4E.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr T Battersby
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Theo Magazis & Associates
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For the Respondent
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Mr M Fisher
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Ms A Hogan, Solicitor for Public Prosecutions
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Introduction
1 Jordan Pope (‘the applicant’), aged 41, seeks bail from this Court.[1] As formulated in the notice of application for bail, the ground upon which he seeks bail is:
There are ‘exceptional circumstances’ by virtue of the delay to trial and other matters contained in the affidavit of [the applicant’s solicitor].
2 The applicant is charged
with:
• trafficking in a large commercial
quantity of a drug of dependence (three charges — charge 1,
methylamphetamine; charge
2, cocaine; and charge 6,
pseudoephedrine);
• dealing with property
suspected of being proceeds of crime, being $412,690 cash (charge
3);
• being a prohibited person in possession
of an imitation firearm (charge
4);
• committing an indictable offence whilst
on bail (charge 5); and
• possessing
pseudoephedrine (charge 7).
3 In my opinion, bail
should be refused. My reasons follow.
The statutory regime
4 Since the applicant is charged with
Schedule 1 offences within the meaning of the Bail Act 1977 (‘the
Act’), this Court must refuse bail unless the applicant can satisfy this
Court that exceptional circumstances
exist that justify the grant of bail. 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.
5 Although the Act does not define exceptional
circumstances, guidance may be derived from what Beach JA observed in Re
Sam:[2]
The Bail Act does not define what are exceptional circumstances. It is trite that, in order 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, notwithstanding the very serious nature of the charge against her.[3] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[4]
6 Beach JA also observed in Re Diab:[5]
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[6] Beale J, citing Kaye J in DPP v Muhaidat,[7] referred to the question of exceptional circumstances in the following terms:[8]
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[9]
7 If the Court is satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[10] 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.[11] In considering whether any relevant 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 the risk so that it is not unacceptable.[12]
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;
...
(g) the accused’s personal circumstances, associations, home environment and background;
...
(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;
...
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; ...
The applicant’s criminal history and personal circumstances
11 The applicant has a relatively lengthy
criminal history, commencing in 2004, for driving offences, family violence and
other violent
offences, weapons offences (including several convictions for
possessing prohibited weapons and imitation firearms), dishonesty offences,
and
offences involving breaching community correction orders (‘CCOs’)
and bail. He has a limited criminal history for
drug-related offending,
however, consisting of possessing cannabis in 2020, and possessing GHB in 2021.
I pause to note that on
4 February 2013 Pasani was sentenced to a six month
suspended sentence of imprisonment — which she breached — for
trafficking
amphetamine; and Hearnden has prior convictions for trafficking
methylamphetamine (2010) and trafficking a large commercial quantity
of a drug
of dependence (2013), for which he has received substantial sentences of
imprisonment.
12 On 19 July 2022, the applicant
was sentenced to three months’ imprisonment in relation to three charges
of contravening a
family violence intervention order (‘FVIO’) and
one charge of failing to answer bail. The same day, a charge of contravening
a
CCO was found to be proven, with no further order made.
13 The applicant has previously been sentenced to
periods of imprisonment. In 2009, the applicant received a sentence of one
month’s
imprisonment, wholly suspended for a period of 12 months, for
driving while suspended. On 24 June 2021, he received multiple concurrent
sentences of imprisonment (the effective total term imposed being three
months’ imprisonment) in relation to family violence
offences, driving
offences, breaching bail and a CCO, and previous offending for which he was
re-sentenced (which included violent
offending, possessing weapons, possessing
GHB, contravening a FVIO, and breaching bail).
14 So
far as his personal circumstances are concerned, the applicant has two children,
aged 12 and seven years. Due to the existence
of FVIOs, he has no contact with
his children or their mother. He was in the early stages of commencing family
law proceedings to
resume contact with his children when he was remanded in
custody.
15 The applicant has a history of
polysubstance abuse. As a teenager, he began using cannabis, cocaine,
amphetamines and ecstasy
recreationally on weekends. In 2009, when he was about
28 years old, his first child was born, and he stopped using drugs. For
approximately three years, the applicant abstained from drugs. In 2012,
however, the applicant again began using methamphetamine
recreationally; and in
2020, in the context of the COVID-19 pandemic, the applicant’s
methamphetamine use increased dramatically.
This contributed to a breakdown in
his relationship with the mother of his children, and their subsequent
separation.
16 Prior to his remand in custody, the
applicant was unemployed and living with his mother in Seaford.
The alleged offending
17 The alleged offending is very serious,
although I note that a number of his alleged co-offenders have been granted
bail. His co-offenders
include Neil Parsons, Lisa Crabtree, Tina Pasani, Lee
Hearnden, Troy Barker, Daniel Barfoot and Syed Hussain. Parsons, Crabtree,
Pasani, Hearnden, Barker and Barfoot were each granted bail in the matter in the
Melbourne Magistrates’ Court, between 18 and
24 May 2022. Barfoot and
Barker have since been charged and remanded in custody in relation to subsequent
offending. For reasons
I need not go into, Hussain has only relatively recently
been arrested.
18 In summary, the prosecution
alleges that the applicant and seven co-offenders were part of a criminal
syndicate trafficking significant
amounts of methylamphetamine and cocaine in
the Southern Melbourne metropolitan and Greater Bendigo areas between March and
May 2022.
19 The alleged offenders first came to
the attention of investigators on 2 June 2021, after police observed Hearnden
speeding, picking
up Pasani from her address, driving to Crabtree’s
address, and receiving a plastic bag of unknown contents from her. Police
then
intercepted the vehicle and conducted a search, finding $15,000 between the
driver’s seat and the centre console. Pasani
stated the cash was a
payment from a sponsor and that she was on her way to deposit it. Police did
not seize the money since there
were insufficient grounds to do
so.
20 Police installed listening devices inside
Pasani’s home address and Hussain’s vehicle (a taxi), pursuant to
surveillance
devices warrants issued in this Court on 31 January 2022. On
the basis of conversations recorded by these devices, the prosecution
allege
that the offenders’ roles were as follows:
21 The prosecution have transcribed some of the conversations recorded by the listening devices, the majority of which are led by Pasani. For example, the applicant is involved in the following selected exchanges with Pasani:
22 Further transcribed conversations include exchanges between Pasani and others (including co-accused Barfoot, Hearnden, Barker, and other associates), on a number of occasions, in which she discusses ‘bags’ (said to be drugs) purchased by associates and money owed. For example:
23 On 6 May 2022 police executed search
warrants at the homes of the accused (with the exception of Mr Barfoot) and
seized a large
number of items.
• At the
applicant’s home, police seized: an imitation firearm with wooden stock;
scales; multiple mobile phones; a notebook
recording drug transactions; $411,790
in cash, some of which had been vacuum sealed and hidden; 83.4 grams of cocaine;
23.4 kilograms
of pseudoephedrine (12 kilograms pure); and 1.58 kilograms of an
unknown substance.
24 CCTV footage obtained from Pasani and
Barker’s home address allegedly shows the applicant entering their garage
with three
containers of white powder on 3 May 2022. The prosecution alleges
that the white powder depicted is the 23.4 kilograms of pseudoephedrine
located
at the applicant’s home on 6 May 2022.
25 On 6
May 2022, police arrested the applicant, Pasani, Barker, Hearnden, Crabtree and
Parsons at their respective homes. They were
remanded in custody that day.
Hussain was not present that day when police executed the search warrant, and
has only recently returned
to the jurisdiction from overseas. Barfoot was
arrested on 12 May 2022. The applicant gave a ‘no comment’
interview.
The applicant’s case for bail
26 In support of his application, the
applicant relied on an affidavit sworn by his solicitor, David McKenna, on 4
November 2022.
Mr McKenna deposed that the applicant concedes that he was in
possession of the items seized at his address by police — including
the 12
kilograms of pure pseudoephedrine and more than $400,000 in cash — he
being ‘primarily a delivery driver within
the syndicate’s
operations’. The applicant will have treatment for drug abuse open to him
in the community through CISP
(‘Court Integrated Services
Program’),[13]
in coordination with his general practitioner and the Men’s Behavioural
Change Program.
27 The applicant’s mother,
Julie Pope, also gave oral evidence in support of the application. I need not
discuss her evidence
in detail, save to say that she offered to provide a surety
of $150,000, and gave an undertaking to the Court that, should her son
be
released on bail, she would notify the police if he breached his bail
conditions.
28 Counsel for the applicant put parity
at the forefront of his submissions. He submitted that the fact that most of
the applicant’s
co-accused had been granted bail amounted to exceptional
circumstances.[14] The prosecution
alleges that the applicant’s role in the drug syndicate is lower than
Pasani and Hearnden. Counsel relied on the fact
that Hearnden was sentenced to five years’ imprisonment for trafficking a
large commercial
quantity of drugs in March 2013, and had earlier received a
sentence of three years for trafficking methylamphetamine; and Pasani
was
sentenced to six months’ imprisonment for trafficking amphetamine in
February 2013. By way of contrast, the applicant
has no prior history of drug
trafficking, and has only minor convictions for possessing GHB and cannabis. In
circumstances where
co-accused with weaker claims have been granted bail, the
principle of equal justice dictates that the applicant should also be granted
bail.[15] Counsel submitted that
the applicant’s position is anomalous and difficult to justify. The
applicant’s ongoing detention,
while co-accused have months ago been
granted bail, constitutes an exceptional circumstance. Finally, counsel
submitted that the
risks alleged by the respondent can be rendered acceptable by
their proposed bail conditions in addition to a surety in the amount
of
$150,000.
The respondent’s opposition to bail
29 The respondent relied on an affidavit
affirmed on 18 November 2022 by Grace Butcher, a solicitor with the Office of
Public Prosecutions,
the contents of which it is unnecessary to recite. First
Constable Dean Greenall, the informant in the applicant’s case, also
gave
evidence and was cross-examined by counsel for the applicant. Bail is opposed
on the basis that parity considerations, delay,
the strength of the prosecution
case, availability of treatment, family support, stable place of residence and
availability of a
surety do not amount to exceptional circumstances. The
respondent contends that the prosecution case is particularly strong on charge
6, since the large commercial quantity of pseudoephedrine was found within the
applicant’s possession at his address. If convicted
of the offences of
trafficking in large commercial quantities of drugs of dependence, the applicant
will be sentenced to a substantial
term of imprisonment far exceeding any time
he will spend on remand. As to that, trafficking in a large commercial quantity
carries
a maximum penalty of life imprisonment, and attracts a ‘standard
sentence’ of 16 years’ imprisonment.
30 Further, the
respondent submits that the applicant poses an unacceptable risk of committing
an offence while on bail; endangering
the safety or welfare of any person; and
failing to surrender into custody in accordance with the conditions of bail.
The respondent’s
primary concern is that the applicant will commit
offences whilst on bail — particularly drug-related offending —
given
the extent of his involvement in the current alleged offending. Moreover,
the respondent contends that the applicant has demonstrated
a continued contempt
for court orders. The alleged offending was committed during the operation
period of a CCO that was imposed
by the Frankston Magistrates’ Court on 26
June 2021 for offences of contravening a FVIO and persistent contravention of a
FVIO.
During the operation of the CCO, the applicant failed to undergo
treatment and rehabilitation as required on eight occasions, failed
to be
supervised, monitored and managed as directed on six occasions and committed the
offending as charged. The applicant was also
on bail when arrested for the
current offending, in circumstances where he has two prior convictions for
contravening conduct conditions
of bail and committing indictable offences
whilst on bail.
Discussion
31 Assuming, without deciding, that a
principle analogous to the principle of parity in sentencing applies to
decisions concerning
bail, I consider that bail must be
refused.
32 It is not disputed that, on 6 May 2022,
police located 23.4 kilograms of pseudoephedrine (12 kilograms pure) and
$411,790 in cash
in the applicant’s possession. Significantly, the
applicant concedes that he was in possession of these items, and also an
imitation firearm (albeit that, in the circumstances, I do not regard the
possession of this item to be of importance); scales; mobile
phones; a notebook
recording drug transactions; 83.4 grams of cocaine; and 1.58 kilograms of an
unknown substance. By acknowledging
that — at the least — he was
‘primarily a delivery driver within the syndicate’s
operations’, the applicant
also concedes in effect that he was involved in
trafficking of drugs of dependence; that is, the movement of illicit drugs from
source
to consumer. There thus appears to be a formidable prosecution case that
the applicant trafficked in a large commercial quantity
of pseudoephedrine.
Indeed, there appears to be a powerful case that the applicant had possession
for sale of an amount of pseudoephedrine
more than 16 times the prescribed large
commercial quantity,[16] this
offence attracting a maximum sentence of imprisonment for
life.[17]
33 On the face of it, not only is the prosecution
case strong, but the applicant’s represents a serious example of a serious
offence. Were the applicant to be convicted of trafficking a large commercial
quantity of a drug (or drugs) of dependence as alleged,
he will inevitably be
sentenced to a lengthy period of imprisonment, far exceeding any time that he
will spend on remand (presently
estimated to be about 18 months).
34 Against that backdrop, none of the matters
relied upon by the applicant — including parity, delay, the availability
of supervised
bail and a substantial surety — alone or in combination
amount to exceptional circumstances; that is, circumstances taking
the case out
of the normal so as to justify the admission of the applicant to bail
notwithstanding the very serious nature of the
charges against him. That said,
on the face of things it appears to me to be somewhat remarkable that various
magistrates have seen
fit to grant bail to a number of the applicant’s
co-accused. So much may, however, simply be a reflection of the fact that
the
applicant’s case is to be distinguished from that of his co-offenders on
the basis that it was only the applicant who was
found in actual physical
possession of such a large quantity of a drug of
dependence.
35 But even were I persuaded that
exceptional circumstances had been established, I would still refuse bail on the
basis that the
applicant represents the unacceptable risks contended for by the
respondent, such risks not being capable of acceptable amelioration
by any
conditions the court might impose. In particular, I consider that when one has
regard to his criminal history, and his previous
breaches of bail and other
court orders, it is clear that the applicant poses an unacceptable risk of
committing an offence (or offences)
on bail. That risk is not capable of being
rendered acceptable, even by the provision of a surety in the suggested
amount.
36 Finally, for the sake of completeness I
note that none of the charges for which the applicant seeks bail are family
violence offences.
Were I to assume, however, that s 5AAAA(2) of the Act
applied,[18] I would not consider
there to be a risk that the applicant would commit family violence of such a
magnitude that bail should be refused
or special conditions
imposed.
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[1] Due to the applicant’s failure to demonstrate that there were exceptional circumstances justifying a grant of bail, a magistrate refused him bail on 30 September 2022.
[2] Re Sam [2017] VSC 91, [22] (citations as in original).
[3] Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).
[4] Ibid.
[5] Re Diab [2020] VSC 196; (2020) 282 A Crim R 462, [36] (citations as in original) (‘Re Diab’).
[6] Re Reker [2019] VSC 81.
[7] Re Muhaidat [2004] VSC 17.
[8] Re Reker [2019] VSC 81 at [39].
[9] Re Muhaidat [2004] VSC 17 at [13]–[14].
[10] Subsections 4A(4), 4D(1)(a) of the Act.
[11] Subsections 4E(1)-(2) of the Act.
[12] Subsection 4E(3) of the Act.
[13] In a report dated 25 November 2022, Jessica Cubias, an Assessment and Referral Practitioner in the CISP Remand Outreach Program recommended the applicant for case management.
[14] Counsel cited Gant v The Queen [2016] VSCA 340 (Weinberg and Priest JJA).
[15] Counsel cited DPP (Cth) v Abbott (1997) 97 A Crim R 19 (Gillard J).
[16] A large commercial quantity is 750 grams: Drugs, Poisons and Controlled Substances Act 1991, Schedule 11, Part 3, Column 1A.
[17] Drugs, Poisons and Controlled Substances Act 1991, s 71(1).
[18] And see s 3AAA(1)(f).
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