IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0140

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by Mohammed RAFIQ	

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JUDGE:	WEINBERG JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 July 2020	
DATE OF JUDGMENT:	2 July 2020	
CASE MAY BE CITED AS:	Re Application for Bail by Rafiq	
MEDIUM NEUTRAL CITATION:	[2020] VSC 408 	

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CRIMINAL LAW – Application for bail – Charges of trafficking in drug of dependence (cocaine), possession of cocaine, possession of testosterone, possession of cannabis, and related summary driving offences – Schedule 2 offending – Whether ‘compelling reason’ made out – Likely lengthy delay between arrest and any trial – Compelling reasons established – Whether applicant ‘unacceptable risk’ – No prior history of breaching bail conditions – Therapeutic services available to applicant – Bail granted – Bail Act 1977 ss 3AAA(1), 4E.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr D Cronin	Emma Turnbull Lawyers	
			
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
1	By notice dated 17 June 2020, the applicant, Mohammed Rafiq, sought bail in respect on some seven charges, in relation to which he was then in custody.  By far, the most serious of those charges was that of trafficking in cocaine (trafficking simpliciter) in an amount of about 489 grams.  The maximum penalty for that offence is 15 years’ imprisonment.
2	The trafficking charge was brought on the applicant’s having been found in possession of cocaine, presumably for sale.  In addition, he was separately charged with possession of minute quantities of cocaine, testosterone, and cannabis.  Finally, he was also charged with several driving offences, all of which would be dealt with summarily.
3	The applicant was originally charged with the more serious offence of trafficking in a commercial quantity of cocaine.  However, after the drugs had been analysed, and it became clear that far from the cocaine weighing 500 grams, that being a commercial quantity of that drug, when in a mixture, the weight was, as I have said, about 489 grams, and the purity was an extremely low 9%.  In other words, the cocaine in question came to about 43 grams pure.
4	On 22 May 2020, the charge of trafficking in a commercial quantity of cocaine was withdrawn, and replaced by the charge of trafficking simpliciter.  On that day, the applicant sought bail, but bail was refused.
5	The offences in question were all said to have been committed on 9 December 2019.  On that day, the applicant was seen driving a blue BMW sedan, east along Spencer Street, Thomastown.  He appeared to be acting in a strange manner, as though he was avoiding being seen.  The registration on that vehicle showed up as ‘suspended’.
6	Police intercepted the car and questioned the applicant.  He was asked to produce his driver’s licence, but claimed that he was from Sydney, and had lost his wallet.  Police say that he continued to appear nervous and that his hand was shaking while he held his mobile phone.
7	A LEAP check indicated that the applicant was wanted for family violence related matters.  He was immediately placed under arrest in respect of those matters.  The vehicle was then searched.  Police located two mobile phones in the front passenger door panel.  They found three vials of testosterone within a bag on the rear passenger seat, as well as the cocaine within a sealed plastic bag inside a white shoebox within the same larger bag.  They also found a small quantity of cannabis within the shoe box, and a number of empty plastic zip lock bags.
8	When the applicant was searched after arrival at the police station, he was found to be in possession of a small zip lock bag, containing about one gram of cocaine.  When one of his mobile phones was examined, it is said to have contained text messages relating to drug trafficking.  He made a ‘no comment’ record of interview.  Police later discovered that a month or so earlier, he had been disqualified from driving, in New South Wales.
9	The applicant was charged what is described as a Schedule 2 offence under the Bail Act 1977.  Accordingly, he was required to show compelling reasons why he should be granted bail.  In the event that he overcame that threshold, the onus shifted to the respondent to demonstrate that the applicant was an unacceptable risk of one or more of the matters outlined under s 4E(1)(a) of that Act.
10	In considering whether compelling reasons had been shown, it was necessary to have regard to the surrounding circumstances, in accordance with s 3AAA of the Act.  These included the nature and seriousness of the alleged offending, the strength of the prosecution case, and the applicant’s criminal history.
11	It was not disputed before me that the charge of trafficking, even in this relatively small amount of cocaine, would be, if proved, a serious matter.
12	I was satisfied that the case against the applicant was by no means weak.  It is true that, as matters stood, there was no forensic evidence linking him to the box containing the drugs.  His fingerprints were not found on the box or any of its contents.  I was told that a DNA analysis had been requested, but had not yet been conducted.
13	On the other hand, the fact that the applicant had, in his pocket, even a minute quantity of cocaine, would tend to support the prosecution case that he was well-aware of the contents of the box found on the back seat.  In addition, the drug trafficking related text messages found on his mobile phone added to the strength of the case against him.
14	The applicant’s criminal history was by no means as bad as those of many who come before this Court seeking bail.  It consisted mainly of Magistrates’ Court appearances, usually for driving related matters.  There was one exception, and that was a conviction for robbery in company in New South Wales.  For that offence, he was sentenced in July 2015, in the District Court of New South Wales, to a term of 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months.
15	The applicant has no history of breaching conditions of bail.  In December 2019, when he was apprehended by police, he was not on bail for any other offence.  The only matter outstanding against him at that time was a possible breach of a family violence intervention order.  That order expired on 9 January 2020 and there are no other orders in place.  The applicant received a sentence of 90 days’ imprisonment for that breach of that order.
16	The applicant was born in July 1991.  He has three siblings, all of them older than him.  His father died in 2010.  As a result of his passing, the family suffered extreme financial pressure.  His mother worked many hours to support the family, leaving the applicant and his siblings with little parental supervision, or guidance.
17	The applicant attended high school until Year 9, when he was asked to leave, by reason of his unsatisfactory behaviour.  He obtained employment in several different industries, mainly labouring and hospitality.  He eventually married, and in 2017, a daughter was born.  She is the applicant’s only child.  The applicant and his wife divorced in 2019.  Although relations between them appear to be strained, there are no court orders denying him contact or custody with his daughter.
18	The applicant moved to Melbourne, from Sydney, in October 2019 in order to be able to have contact with his daughter.  His mother and siblings continue to reside in Sydney.  He has no family in Melbourne, apart from his daughter with whom he hopes to establish some contact, albeit perhaps, initially, supervised contact only.  That would be a matter for the Family Court, if agreement with the wife cannot be reached.
19	The applicant has a lengthy history of substance abuse.  It goes back to when he was aged only 14.  At the age of 20, he began using methylamphetamine and cocaine.  His drug use spiralled in 2019, after his divorce.
20	The evidence before me that was that if the applicant were granted bail, he would reside at a particular address in Langwarrin.  I was told, and the informant confirmed, that the police did not have any issue with that propose address, or any of the persons who lived there.
21	It was submitted that if bail were to be granted, the applicant would receive drug counselling from Ms Amanda Brown, of Lamberti Associates.  In addition, he would attend Narcotics Anonymous meetings, and undergo regular drug screening under the supervision of Lamberti Associates.  I was provided with a report prepared by Ms Brown regarding the services that her organisation provides, and I heard from Ms Brown in Court.
22	The applicant was on remand since December 2019.  That was a period of more than seven months, though 90 days of that period was taken up serving the sentence for the breach of the intervention order.  As matters stood, in the proceeding before me, there was to be a committal mention on 27 July 2020.  I was told that if the matter proceeded through the indictable stream, it was likely that the applicant would spend more than two years on remand.  If, however, the matter proceeded in the summary stream, it was likely that the period on remand would be closer to 18 months.  Counsel for the respondent did not take issue with those estimates.  It was accepted that the delay, brought about by the current COVID-19 crisis, meant that there was a realistic possibility that any sentence that the applicant received for these offences would be less than the period that he might  spend awaiting trial.
23	It was submitted on behalf of the applicant that if he were ultimately found guilty, a combination sentence of 12 months’ or less imprisonment, with a community correction order, would be within range for his offending.  That would mean that the applicant would have spent more time on remand than any sentence that he ultimately received.  Moreover, the time spent in remand, given current conditions, would be particularly onerous.
24	It was submitted that, with appropriately stringent conditions, the applicant did not present as an unacceptable risk of further offending, should he be granted bail.  There was evidence before me to suggest that he may have employment as a full-time labourer available to him.
25	In the respondent’s reasons for opposing bail, it was noted that the applicant had, in the past, been charged with family violence offences.  In addition, he had a very serious conviction, in 2015, for robbery in company.  The respondent submitted that, given the applicant’s limited ties in this State, he might well choose to return to New South Wales, and not return to Victoria to attend court proceedings.
26	Having heard the careful and well considered submissions put forward by both sides, I concluded that the applicant had established compelling circumstances for the grant of bail.  I was not persuaded by the respondent that he posed an unacceptable risk of committing further offences, particularly if appropriate conditions were attached to the grant of bail.
27	I then ordered that the applicant be granted bail upon the following conditions:
•	that the applicant reside at the nominated Langwarrin address;
•	that the applicant surrender any passport or travel documents to the informant, and not make any application for other such documents;
•	that the applicant not attend any points of international departure;
•	that the applicant, if he obtains a mobile telephone, provide the informant with any relevant telephone number within 24 hours;
•	that the applicant not leave the State of Victoria, except for the purpose of visiting family, subject to approval by the informant;
•	that the applicant not contact any witness for the prosecution other than the informant;
•	that the applicant attend upon Ms Amanda Brown of Lamberti Associates for treatment and counselling, and that he comply with all lawful directions of Ms Brown or her nominee;
•	that the applicant not leave his place of residence between 10:00 pm and 5:00 am;
•	that the applicant not associate with or contact any member of the Hell’s Angels, or any known associate of the Hell’s Angels; and
•	That the applicant report to the Frankston Police Station every Sunday.

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