IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2024 0059

IN THE MATTER of the Bail Act 1977 (Vic)	
	
and   	
	
IN THE MATTER of an application for bail by RASSOUL AL-MANDALAWY 	

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JUDGE:	HOLLINGWORTH J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1 May 2024	
DATE OF JUDGMENT:	5 June 2024	
CASE MAY BE CITED AS:	Re Al-Mandalawy	
MEDIUM NEUTRAL CITATION:	[2024] VSC 298	

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CRIMINAL LAW – Bail – Charges of trafficking and possessing drug of dependence – Commercial quantity – Schedule 1 offence – Committing indictable offences on bail – Requirement to show exceptional circumstances – Nature and seriousness of the alleged offending – Strength of prosecution case – Family support – Availability of residential drug treatment – Criminal history – History of offending while on bail – Delay – Surety – Exceptional circumstances established – Applicant not an unacceptable risk on strict bail conditions – Bail granted.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr D Dann KC with
Mr M Sturges	Stephen Andrianakis & Associates	
			
For the Respondent	Mr S Devlin	Office of Public Prosecutions	

HER HONOUR:
Background
1	By notice dated 15 March 2024, the applicant applied for bail on the following charges:
Informant Farrelly
•	possess drug of dependence (seven charges)
•	possess ammunition without a licence (two charges) 
•	fail to comply with direction to assist
Informant Osborne 
•	reckless conduct endangering life
•	reckless conduct endangering serious injury
•	dangerous driving while being pursued by police
•	commit indictable offence while on bail (two charges)
•	drive at a speed dangerous to the public (two charges)
•	possess drug of dependence
•	drive on highway while unlicenced
Informant Bain-King 
•	possess firearm contrary to a firearm prohibition order
•	possess traffickable quantity of firearms
•	possess ammunition contrary to a firearm prohibition order
•	possess imitation firearm contrary to a firearm prohibition order
•	possess drug of dependence (two charges)
•	traffick drug of dependence
•	traffick commercial quantity of a drug of dependence
•	drive on highway while unlicenced (two charges)
•	contravene conduct condition of bail (two charges)
•	commit indictable offence while on bail.
2	On 12 April 2023, the applicant was charged and granted police bail in the Farrelly matter. 
3	On 30 August 2023, the applicant was arrested and charged in the Osborne matter.  He was brought before the Broadmeadows Magistrates’ Court and granted bail on those charges.
4	On 21 November 2023, the applicant was arrested, charged and remanded in custody in relation to the Bain-King matter.  He was brought before the Melbourne Magistrates’ Court the following day.  He was denied bail, and his bail in relation to the Farrelly and Osborne matters was revoked.
5	He subsequently applied for and was refused bail on two occasions in the Magistrates’ Court, on 27 December 2023 and 27 February 2024.
6	On 15 March 2024, the applicant filed a notice of intention to apply for bail in this court.  The application was heard before me on 1 May 2024.
7	At the time of the hearing, the applicant’s counsel informed the court that:
	(a)	The Farrelly matter would resolve by way of a guilty plea listed for 13 May 2024;
	(b)	A contested summary hearing of the Osborne matter would also occur on 13 May 2024; and
	(c)	A committal mention in respect of the Bain-King matter was scheduled for 27 May 2024.
8	Due to the late and incomplete provision of material by the applicant, the bail application was not able to be finalised on 1 May.  I gave the applicant leave to file further evidence and submissions, and the respondent an opportunity to file further submissions in response.  The applicant filed further affidavits dated 9 and 22 May 2024, as well as further written submissions.
9	At the subsequent hearing in the Magistrates’ Court on 13 May 2024, all of the Osborne and Farrelly charges were in fact resolved.  Of the 20 charges, the applicant was convicted and discharged in relation to 9 of them; 6 were struck out or withdrawn, and he was convicted and sentenced or fined in relation to the remaining 5 charges.  For the various charges in respect of which he was sentenced to imprisonment, he received aggregate sentences of imprisonment of 90 days, to be served concurrently, and reckoned as time already served.
10	That means that the only charges in respect of which bail is now being sought are the Bain-King charges.
Relevant legal principles
11	Bail must be refused unless the applicant satisfies the court that exceptional circumstances exist which justify the grant of bail, because:
	(a)	Trafficking in a commercial quantity of drugs is a Schedule 1 offence within the meaning of the Bail Act 1977 (“the Act”); and
	(b)	He has been charged with committing indictable offences whilst on bail for another indictable offence.
12	The Act does not define what may amount to exceptional circumstances.  For the circumstances to be exceptional, they must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail.  The threshold is high, but it is not an impossible standard.  Exceptional circumstances may be established by a combination of factors, which, by themselves, may not be considered exceptional.
13	In considering whether exceptional circumstances exist, the court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act. 
14	If satisfied to the requisite standard, the court must then consider the unacceptable risk test.  The court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.  In considering whether a 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 any risk so that it is not unacceptable. 
15	The parties accepted that the recent amendments to the Act, which came into effect on 25 March 2024, apply to this bail application, even though it was filed before that date.  
16	There are two amendments that are relevant to this application.  First, the unacceptable risk test has changed, so that the risk of committing an offence is no longer a stand-alone limb of the test.  Instead, the relevant unacceptable risk must be a risk of endangering the safety or welfare of any other person whether by committing an offence that has that effect or any other means. 
17	Secondly, the surrounding circumstances that must be taken into account have been expanded to include whether, if the accused were found guilty, it is likely:
(a)	that they would be sentenced to a term of imprisonment; and 
(b)	if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment.
18	In interpreting and applying the Act, the court is required to take into account the guiding principles set out in s 1B(1), including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.
19	The applicant submitted that exceptional circumstances were demonstrated by the following matters:
(a)	His personal circumstances, home environment and background;
(b)	Family support and ties to the jurisdiction; 
(c)	The availability of a surety in the amount of $100,000;
(d)	The availability of therapeutic drug treatment in the community;
(e)	The strength of the prosecution case; and
(f)	Delay.	
The Bain-King charges
20	On 21 November 2023, police conducted a search at the applicant’s home, pursuant to a firearms prohibition order that had been served on him on 4 August 2023.
21	There is no dispute that, inside a Toyota RAV4 parked in the driveway, police found a handgun, an imitation switch gun revolver, large amounts of ammunition, two Xanax tablets, and three bottles of 1,4 Butanediol which had a combined weight of 2.75kg.  The applicant was arrested and gave a “no comment” interview.
22	The applicant points to what he says are some weaknesses in the prosecution case:  
(a) 	The 1,4 Butanediol was found in the boot.  It was contained in three 1 litre plastic bottles, which were inside a plastic bag.  The plastic bag was inside a duffle bag.  A large amount of ammunition was also found in the duffle bag.  There is no DNA evidence from the duffle bag, because it was analysed for ballistics purposes.  The plastic bag containing the 1,4 Butanediol was also not able to be forensically analysed, because the substance leaked from the bottles into the plastic bag.
(b)	There are no eye witnesses to the duffle bag being placed in the boot; 
(c)	Identification documents belonging to other people were found in the centre console of the car when the police executed their search; 
(d)	Somebody else’s fingerprints were found inside the car; and 
(e)	Although the applicant owned the car, his younger brother was using it around the relevant time.  His brother has not been interviewed by police in relation to these charges.
23	The respondent says that the prosecution case is strong.  The prosecution disputes that the fingerprints of any person other than the applicant were located inside the car.  There is evidence connecting the applicant to the firearms, ammunition and 1,4 Butanediol.  The evidence includes:
(a)	The fact that the items were located in his car, which was parked outside his house; 
(b) 	There is CCTV footage showing him driving the car on the day the items were found;
(c) 	Cell tower data for his phone is consistent with the CCTV footage;
(d)	The applicant’s DNA was found on the concealed handgun located in the footwell; and
(e)	The application of the prima facie evidence provision in the case of the commercial trafficking offence.  
24	It is not possible at this early stage of the proceeding to form a considered view about the likelihood of conviction on each of the 13 current charges.  Although there may be triable issues in relation to some of the charges, the prosecution case overall (particularly on the most serious charges) is not a weak one.
25	The alleged offending in the Bain-King matter is serious.  The applicant is alleged to have been in possession of a firearm whilst subject to a firearm prohibition order, as well as being in possession of a commercial quantity of drugs.
26	I also note that the applicant was on two separate grants of bail at the time of the alleged offending in the Bain-King matter.  
Personal matters
27	The applicant has just turned 31.
28	He was born in Iraq.  Together with his family, he fled Iraq when he was six.  The family was defrauded by people smugglers and lost their money.  They made two subsequent attempts to travel to Australia by boat, becoming lost at sea on the second occasion.  They were rescued and taken to South Australia, where they were detained for four months, before being granted asylum.  The family then moved to Melbourne.
29	The applicant was exposed to significant family violence perpetrated by his father against his mother.  He struggled at school, and left in year 9 to work at his father’s refrigeration business.
30	The applicant began using methamphetamine and cocaine when he was 18 years old.  He describes his life since then as a merry-go-round of drug taking and incarceration. 
31	In 2016, the applicant successfully completed a 13-week residential rehabilitation program at Maroondah Addictions Recovery Project whilst on bail.  However, he subsequently relapsed into drug usage. 
32	In 2019, while the applicant was in custody, his father died; he was unable to attend the funeral.
33	During the past three years, the applicant has used prescription medication and GHB daily, in addition to methylamphetamine and cocaine.
34	The applicant has a close relationship with his mother and his three siblings. 
35	The applicant does not own any property or substantial assets in Australia.  Nor does he have any known employment prospects.  His ties to the jurisdiction are purely  familial.  That said, the respondent does not suggest that there is any particular flight risk in this case.
36	At the time of the alleged Bain-King offending, the applicant was living in a unit at the back of his mother’s home.  It is proposed that, after completing a residential drug treatment program at The Cottage, he will return to live at his mother’s address.  It was not suggested that this was an unsuitable address, although his mother clearly has no capacity to prevent him from committing offences.
Availability of a surety
37	The applicant’s mother has offered a surety in the sum of $100,000, secured against her home in Tullamarine.  
38	At the time of the hearing on 1 May 2024, there was still a bank mortgage registered on the certificate of title, and there was no evidence from the ANZ Bank as to the state of any current mortgage indebtedness or redraw capacity.  That matter has since been rectified in an affidavit from the applicant’s solicitor dated 9 May 2024.  I am now satisfied that the proposed surety is acceptable.
39	I also note that the applicant has not failed to answer bail before.  
Criminal history
40	The applicant has a relevant history of weapons and drug-related offences, and has previously received the following dispositions:
(a)	In 2012, when the applicant was 18, he was sentenced to a good behaviour bond on a charge of possessing a controlled weapon without excuse.   The charge was subsequently dismissed following compliance with the bond;  
(b)	Also in 2012, the applicant was released on a 12-month youth supervision order, without conviction, in relation to charges of intentionally causing serious injury, threat to inflict serious injury, and criminal damage;
(c)	In 2016, the applicant was convicted and fined in relation to charges of assault with a weapon, possessing methylamphetamine, possessing ammunition, possessing a prohibited weapon, and driving offences;
(d)	In 2017, the applicant was sentenced to a total effective term of 5 years and 2 months’ imprisonment in relation to charges of attempting to traffick a commercial quantity of a controlled drug, possessing methylamphetamine, possessing an unregistered handgun, and possessing a silencer without a permit.  Those charges related to an incident in December 2015, in which the applicant and a co-accused assisted in collecting and transferring a parcel which they believed to contain a commercial quantity of MDMA (the substance had in fact been intercepted by authorities and substituted).  On the same day, police arrested the applicant and executed a search warrant at his home, where they located three unregistered handguns, a silencer, ammunition, and 17g of methylamphetamine;
(e)	In 2019, the applicant was sentenced to 6 months’ imprisonment, concurrent with the sentence he was already serving, in relation to a single charge of attempting to pervert the course of justice.  There were four occasions between May and July 2015 when a car registered in the applicant’s name was observed speeding (including on one occasion, travelling at 200 kmph in a 100 kmph zone along the Hume Freeway) and had evaded police.  The offence of attempting to pervert the course of justice occurred on 20 July 2015, when the applicant nominated a false identity as the driver of his car at the relevant times.
Availability of therapeutic treatment in the community 
41	Although the applicant has a longstanding history of drug use, he has had periods where he has not used drugs.  He has previously successfully completed a residential rehabilitation program, albeit that he subsequently relapsed.  I accept that the path to recovery from long-standing drug addiction is not always linear.  
42	The applicant is currently drug free in custody.  I accept that he is at high risk of  further offending, if he does not address his substance abuse issues.  It is in the community’s interest, as well as his interest, that he address these issues.  Otherwise, his current cycle of substance abuse, offending and incarceration is likely to continue.
43	It was proposed that the applicant would complete a 12-16 week residential drug program at The Cottage, a residential rehabilitation facility in Shepparton, which is run by a privately-funded not-for-profit organisation. After completion of the residential program, it was proposed that the applicant would participate in an After Care Program run by Maria Hutchinson, a drug counsellor.
44	I accept that the availability of residential treatment can go a very long way on its own to establishing exceptional circumstances, in an appropriate case.  But each case has to be decided on its own facts.
45	I have no reason to doubt that The Cottage provides a valuable service to many people affected by substance abuse issues.  However, I initially had some concerns about its suitability as a bail placement, arising out of the following matters.
46	The program at The Cottage is entirely voluntary, and involves a relatively low level of supervision and treatment in comparison with some other rehabilitation facilities.  For example, the total amount of weekly drug and alcohol education is no more than about 6 hours.  If the drug education facilitator is unable to attend on a particular day, the education simply cannot be provided that day.  At various stages of the program, residents are entitled to leave the premises without supervision for lengthy periods every afternoon.  
47	The facility is not locked.  Although there is usually a staff member working near the facility’s entrance, a resident could leave the premises relatively easily if the staff member was away from the office at the time.
48	Mr Gilhooley, the operations manager of The Cottage, gave oral evidence, in addition to describing the treatment program in a letter to the court dated 19 April 2024.  He gave various undertakings to the court, including to inform the informant in the event that the applicant left the premises during his time at The Cottage, or if a positive drug screen was returned by the applicant.
49	However, other offenders have been bailed to The Cottage, and have successfully completed its residential treatment program.  At the end of the day, I decided that any risk of the applicant abusing the less rigorous aspects of the program could be minimised by imposing strict bail conditions.  
50	For example, during the minimum of 16 weeks in which the applicant must reside at The Cottage, he may not leave the facility for any reason, unless accompanied by a member of staff.  It does not matter that some other course participants may be permitted to leave the facility without a staff member.  Such a condition is designed to reduce the risk that he may be tempted to get involved with drugs or unsuitable people outside of The Cottage, whilst he is undergoing treatment.
51	Once he completes at least 16 weeks of residential treatment at The Cottage, and returns to live at his mother’s house, he will have to continue to undergo weekly counselling, random urinary drug testing and bail monitoring with Ms Hutchinson.  If she cease to become available to provide such services, the applicant’s lawyers will need to apply to the court for a variation of the bail order.
52	I will also impose strict reporting obligations on the staff at The Cottage and Maria Hutchinson, to inform the police of random drug test results, and if they become aware of any breach of the bail conditions. 
Delay
53	The parties agree that the likely time from remand to a County Court trial would be approximately 2 to 2 ½ years (less the 90 days which was time served in respect of the Osborne charges). 
54	The applicant argued that there was a realistic possibility that the period of time served in custody by way of pre-sentence detention would exceed either the total effective sentence, or any non-parole period, that may be imposed.  
55	Given the maximum penalty for the offence of trafficking in a commercial quantity (25 years), the sentencing statistics for that charge, and the applicant’s priors, I did not find that submission initially persuasive.  However, during the course of oral and written submissions, both counsel agreed that sentences for offences involving 1,4 Butanediol are dealt with using a much lower sentencing range than other drugs, because of the vastly lower commercial value associated with that particular drug. Having had the opportunity to subsequently consider relevant cases, I accept that to be the case.  
56	I also note that the volume that the applicant is charged with trafficking is just within the bottom of the commercial quantity for that drug.
57	The maximum penalty for possessing a firearm contrary to s 112B of the Firearms Act 1996 is 10 years.  If the applicant is found guilty of the firearm charge, it is likely that he would receive a term of imprisonment with some cumulation upon any sentence he receives for trafficking.  
58	Were the applicant to be found guilty of at least the two most serious charges of the Bain-King charges, it is likely that he would receive a total sentence in excess of 2 ½ years’ imprisonment.  However, I accept that a period of around 2 ½ years on remand may exceed any non-parole period imposed in the County Court.
Conclusion
59	This is very much a borderline case, in terms of the decision to grant bail.  Many of the matters relied upon by the applicant are certainly not exceptional in themselves.  However, when those matters are considered in combination with the availability of residential drug treatment (to address a longstanding problem, which contributes to the applicant’s ongoing offending), and the possible delay until trial, I was satisfied that exceptional circumstances were made out.   
60	The strict conditions that I am going to impose should be sufficient to make any risk of further offending, that might endanger the safety or welfare of any person, an acceptable risk.  
61	The applicant is admitted to bail.  I attach a copy of the conditions of bail.