Supreme Court New South Wales Medium Neutral Citation: R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143 Hearing dates: 14 and 15 February 2024 Date of orders: 15 February 2024 Decision date: 15 February 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Bail granted with conditions for all applicants. Catchwords: CRIME – bail – release applications – show cause – unacceptable risk – bail concerns – Operation Ironside – AN0M devices – applications heard together – significant common features resulting substantial overlap in the arguments – not an invitation to arbitrary decision-making – not open to ignore statements of principle when not convenient – AN0M evidence issue - Bail Act 2013 (NSW), s 74 – show cause test – unacceptable risk test – home detention conditions – electronic monitoring condition – bail granted with conditions Legislation Cited: Bail Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code (Cth) Telecommunication (Interception and Access) Act 1979 (Cth) Cases Cited: Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Iongi v R [2022] NSWCCA 42 R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 R v TB (2023) 376 FLR 69; [2023] SASC 45 R v TB (No 3) [2023] SASC 61 Simpson v R [2021] NSWCCA 264 Category: Procedural rulings Parties: Rex (Crown) Mohenoa Okusitino (Applicant) Edward Lavulo (Applicant) Otenilli Iongi (Applicant) Representation: Counsel: A McGrath (Crown) A Djemal SC (Applicants) Solicitors: Commonwealth Director for Public Prosecutions (Crown) Miers Legal (Applicants) File Number(s): 2023/434431; 2023/434445; 2023/434386 Publication restriction: Nil EXTEMPORE JUDGMENT (rEVISED) 1. HIS HONOUR: Mohenoa Okusitino, Edward Lavulo and Otenilli Iongi have each made a release application pursuant to s 49 of the Bail Act 2013 (NSW) ("the Act"). The applications were heard together as a result of significant common features resulting in a substantial overlap in the arguments presented by both the applicants and the respondent. 2. In the case of the applicants, Okusitino and Lavulo, they were jointly charged as co-conspirators in relation to one offence. The applicant, Lavulo, faces additional charges on the same indictment. The charges against the applicant, Iongi are separate and distinct. 3. Whilst dealing with the matters together as a result of their common features it remains the case that each matter must be determined separately based on the application of the relevant principles to the particular facts of the case. Additionally, it is to be remembered there is no parity in bail. 4. The significant common features arise out of the fact that the charges against each applicant arise from a now well-known police operation called "Operation Ironside". That operation involved the use of devices known as "AN0M devices". These devices were developed by the authorities and, through undercover police operatives, distributed within the organised crime milieu. Recipients of the devices were given to understand that the devices had been developed to allow persons, such as themselves, to communicate undetected by the authorities, essentially for the facilitation of criminal ventures. 5. The AN0M device became the preferred method of communication for a significant number of criminal syndicates. Confidence in the devices was such that, commonly, little was done to disguise communications over the platform. The content of the communications were, however, observable by police. 6. Issue has been taken with the admissibility of the evidence obtained by the use of the AN0M devices by the present applicants and a significant number of other accused persons caught up in the police sting. As a result, there have been significant delays in bringing the applicants to trial. The applicants were each arrested on 7 June 2021 and have been in custody since, a period in excess of two years and eight months. 7. The matters have not yet been set for trial. The matters have progressed from the Local Court to the District Court and it is anticipated a trial date will be set in the near future. Any trial date, however, will not be before 2025. 8. The allegation against each applicant, while different, are all extremely serious. In my view, subject to the question of the admissibility of the AN0M evidence, the case against each is very strong. I will return to the case of each applicant in due course. 9. The present applications thus raise a common issue. That is, the tension between allegations of extremely serious offending, including allegations to which the show cause requirement under the Act applies, militating strongly towards the bail being refused, against what might be fairly described as extreme delay, which supports bail being granted. That tension must, of course, be resolved by application of the provisions of the Act. 10. In accordance with the provisions of the Act, it will be necessary in due course to consider the application of s 74 in relation to the availability of a second application in this Court in the application of Mr Okusitino. In the event that that hurdle is overcome it will be necessary, in his case, and in the cases of both Mr Lavulo and Mr Iongi, to consider the show cause test, and in the event that that test is satisfied, the unacceptable risk test. 11. I turn to the charges against each applicant, first dealing with Mr Okusitino and Mr Lavulo. Mr Okusitino and Mr Lavulo 1. The applicants, Okusitino and Lavulo, are charged with an offence against s 11.5(1) and s 307.1(1) of the Criminal Code (Cth) of conspiring with each other and various other persons to import a commercial quantity of a border controlled drug. 2. The applicant, Lavulo is additionally charged with two counts against s 400.4(1) of the Criminal Code of dealing with the proceeds of crime believing it to be proceeds of crime of a value of $100,000 or more together with a further count against s 400.3(1) of the Criminal Code of dealing with proceeds of crime believing it to be proceeds of crime of a value of $1 million or more. 3. The following brief summary of the allegations against the applicants Okusitino and Lavulo is taken largely from the Crown's submissions provided on the applications. It is alleged that on 24 March 2021 the applicants, Okusitino and Lavulo joined an AN0M group chat with other members of the criminal syndicate to discuss a drug importation venture known as "the Orient." 4. The Orient venture involved the importation of 500 kilograms of methylamphetamine into Australia from South Korea. The importation involved seven separate consignments being delivered to business premises, essentially a warehouse, which had been set up for the purpose by an alleged co-conspirator, Brent McLaughlin. The first three consignments were "dummy runs" and the later four consignments all contained significant qualities of methylamphetamine. 5. The applicants are alleged to have been involved in numerous conversations on the AN0M platform regarding the organisation and arrangements with respect to the importations. The importations were apparently arranged from overseas by a man called Tomasi Taulahi. He is alleged to have been the off-shore controller of the criminal syndicate and remains overseas. 6. The applicant, Okusitino is alleged to have been engaged in conversation with Mr Taulahi to which it is alleged the applicant, Lavulo was also a party. That conversation related to providing support to Mr McLaughlin, the warehouse operator, with respect to receiving, in particular the last two consignments. 7. On the Crown case, these communications establish that the applicant, Okusitino was entrusted with a managerial role within the criminal group, being responsible for providing Mr McLaughlin with direction and instruction. 8. Once the consignments had arrived in Australia, Mr Taulahi provided the criminal syndicate, including the applicants with updates as to how the consignments were progressing through customs. Additionally, the syndicate discussed information received from individuals working within freight forwarding companies about law enforcement interest in the consignments. 9. Following a phone query from the Australian Federal Police to Mr McLaughlin about the consignments, the syndicate, including the applicants, discussed moving the drugs from the warehouse set up by Mr Mclaughlin to a different location and developing a cover story to shift law enforcement interest away from them. 10. On 20 May 2021, after authorities had executed a search warrant on Mr McLaughlin's warehouse, the applicant, Okusitino directed the applicant, Lavulo to clear Mr McLaughlin's AN0M device with the intention that any incriminating evidence relating to the importation by the syndicate on the device would be destroyed. 11. Subsequently the applicants discussed providing Mr McLaughlin with another AN0M device for the purpose of continuing discussions with respect to the importation. 12. Following the execution of the search warrant on Mr McLaughlin's warehouse and his questioning by the authorities, the criminal syndicate, including the applicants also discussed ways to assist Mr McLaughlin flee the jurisdiction. The group also questioned the source of police information leading to the search and in particular whether insiders were providing that information. 13. I turn then to the strength of the respective cases in relation to Mr Okusitino and Mr Lavulo. The summary provided is based on the assumption that the applicants were users of particular devices. Assuming the evidence obtained from those devices is admitted, the purpose for which the devices were obtained, the unlikelihood that persons outside the criminal enterprise would be allowed into the communications, and the communications themselves, are such that on proof that the applicants were users of the devices attributed to them, the cases against them are, in my view, strong to the point of overwhelming. 14. In the case of the applicant, Okusitino there is a strong circumstantial case he was the user of the particular device attributed to him. It is unnecessary to canvas the evidence in any detail. It is sufficient for present purposes to note that the evidence includes the presence of the device proximate to locations associated with Mr Okusitino's movements, his attendance on a barber which coincided with a message indicating the user of the device was to attend a barber in the same suburb, messages consistent with the applicant's responsibilities for the care of his young child, and a photograph which showed in the background items consistent with items located at the applicant's home, including a reasonably distinctive pair of shorts. 15. In the case of the applicant, Lavulo the device attributed to him was frequently located in the vicinity of his residential address. Some communications were sent from the device at a time when it was proximate to Mr Lavulo's work address. A message, apparently to Mr Lavulo's brother, referenced the applicant's wife by her first name and reference was made in a message to the user of the device taking a sick day from work which coincided with the applicant calling in sick to work. 16. There is, in my view, a strong case that the applicant, Lavulo was the user of the device attributed to him. That strong case relates not only to the common charge with Mr Okusitino to which I have referred but also to the additional money laundering offences against Mr Lavulo. 17. Those offences involve transactions in which the applicant, Lavulo is alleged with others to have arranged for amounts of $400,000 and $500,000 to be handed to another person, together with an offence involving the alleged possession by the applicant of in excess of $1 million in cash found at his home along with cash counting machines and encrypted phones. Mr Iongi 1. I turn to the case in relation to Mr Iongi. The applicant, Iongi faces trials on two separate indictments. The first is described as the "trans job" indictment pursuant to which he is charged with an offence against s 11.5(1) and 302.1(1) of the Criminal Code of conspiracy to traffic a commercial quantity of methamphetamine, together with an offence against s 11.5(1) and s 400.3(1)A of the Criminal Code of conspiracy to engage in conduct in relation to money that was, and was believed by the conspirators to be, proceeds of general crime, and which conduct concealed or disguised the source of the money and the movements of the money, the money being of the value of $1 million or more. 2. The first of the offences is alleged to have been committed between 7 January 2021 and 7 June 2021 and the second of the offences is alleged to have been committed between 17 February 2021 and about 7 June 2021. 3. The second indictment has been referred to as the "50kg methamphetamine trafficking" indictment. By that indictment, he is charged with an offence against s 302.2(1) of the Criminal Code (relying on s 11.2A) that he did with others traffic a commercial quantity of methamphetamine between about 22 March and 6 April 2021. 4. In essence, the Crown alleges that the applicant Iongi was involved in large scale drug trafficking and money laundering in the first half of 2021, prior to his arrest. 5. The AN0M communications relied on by the Crown show a pattern of regular communication between members of the "trans job" syndicate between the dates in the charge relating to the transportation of a crate from Sydney to Perth alleged to contain "10 units" of methamphetamine, together with communications relating to potential future transportation of larger quantities of drugs on an ongoing basis. 6. The communications obtained by the police also relate to the transportation of the same crate from Perth to Sydney but repacked to contain about $8 million in cash. 7. It is alleged that Mr Iongi's role was to organise drivers and arrange for the packing of the methamphetamine. It is alleged that he relayed communications from other members of the syndicate to persons referred to as his "workers" to facilitate transport and packing of the drug. 8. On the Crown case, the applicant was aware of and engaged with the precise details of the drug trafficking and money laundering. 9. In relation to the second indictment, the prosecution relies on AN0M communications to show that the applicant facilitated the transportation and hand-over of the drug. Based on those communications, the applicant is alleged to have played a senior managerial role in the criminal enterprise. 10. I turn to the strength of the case in relation to Mr Iongi. As with the applicants, Okusitino and Lavulo, the Crown case is predicated on the admissibility of the AN0M communications. As with those applicants, assuming the evidence is admitted, the case that the user of the device attributed to the applicant was involved in the offences is extremely strong. 11. In the case of the applicant, Iongi, there is a very strong circumstantial case he was the user of the particular device. The evidence in this regard includes the frequent presence of the device at locations proximate to the applicant's home and, particularly, instances when the device was proximate to locations where other data suggests the applicant was present. Additionally, there are periods when the device was not used which correspond to periods the applicant was absent from the State. 12. The name chosen by the user of the device also bears some connection with the applicant. The AN0M evidence issue 1. I turn then to the issue of admissibility of the AN0M evidence. As I have observed, the strength of the respective cases is dependent upon the admissibility of AN0M communications. The respondent indeed conceded that none of the charges could proceed if the evidence was excluded. 2. The question of the admissibility of that evidence is of some complexity. It is a matter to be resolved by the trial court and ultimately, as seems likely, appellate courts including potentially the High Court, determining appeals from any decision made at first instance. That is a decision as to whether to either admit or exclude the evidence. 3. For present purposes, it is sufficient to note that the argument hinges on the application of the Telecommunication (Interception and Access) Act 1979 (Cth) ("the TIA Act"). 4. In the event that the evidence was the result of interception of a communication passing over a telecommunication system, s 7 of the TIA Act prohibits the use of the evidence in the absence of an appropriate warrant. No discretion is engaged. There are no such warrants. 5. The argument is thus simply stated. Resolution is more difficult. The issue has been considered at first instance in South Australia in R v TB (2023) 376 FLR 69; [2023] SASC 45, where Kimber J held that the evidence was not caught by the TIA Act. 6. In R v TB (No 3) [2023] SASC 61, his Honour ruled that the evidence should not be excluded in the exercise of the unfairness discretion. 7. These decisions are the subject of an appeal to the Court of Appeal of South Australia. A hearing in that Court commenced but has not concluded. One member of the original bench, Kourakis CJ, has recused himself. His Honour has been replaced on the bench and the matter is back for further hearing before a reconstituted bench with, I am told, a further hearing likely to be held in March of this year. 8. On the information provided to me, the further hearing is not simply as a result of the recusal of the Chief Justice. Rather the further hearing involves, or at least is likely to involve, supplementing the evidence that was before Kimber J to provide further expert evidence in relation to the precise means by which the communications were obtained, going to the question of whether they were intercepted communications passing over telecommunications system. That brief history suggests resolution of the matter is not straightforward. 9. I approach each matter on the basis that there is at least an argument as to the admissibility of the AN0M evidence in the context of what is, in each application, otherwise a very strong Crown case. Section 74, Bail Act 2013 (NSW) 1. Turning to the provisions of the Act, I deal first with s 74 in relation to Mr Okusitino. This is Mr Okusitino's second application for bail in this Court. He was refused bail by Johnson J on 12 August 2021. 2. The Crown accepts that there are grounds for a second application based on the substantial lapse of time between that application and the present application. The Crown concession is, in my view, appropriate. It follows that s 74 of the Act does not stand in the way of Mr Okusitino's application. 3. Mr Iongi was previously refused bail in this Court. However, that refusal, whilst based on the same facts, related to different charges. Following that refusal of bail, but subsequent to the reformulation of charges, he made application for bail in the Court of Criminal Appeal: see Iongi v R [2022] NSWCCA 42. 4. The Court of Criminal Appeal found that it did not have jurisdiction because no determination had been made by this Court with respect to the present charges. It follows that there having been no determination in this Court of those charges to date s 74 does not apply to Mr Iongi. 5. Mr Lavulo has not made any previous application to this Court and s 74 is not relevant to his case. Show Cause Test 1. I turn then to the show cause test. The show cause test applies to the common charge against Mr Okusitino and Mr Lavulo and to the two drug charges against Mr Iongi. The application of the show cause test is the result of s 16B(1)(a) of the Act, that is, that the offences to which I have referred all carry a maximum sentence of life imprisonment. 2. The show cause test also applies as a result of the operation of s 16B(1)(g), the offences all involving a commercial quantity of either a border controlled drug or a controlled drug and where charged as a conspiracy, s 16B(1)(k) which includes within s 16B(1), an offence of conspiring to commit an offence described in s 16B(1)(g). 3. The show cause test is separate to the unacceptable risk test. Satisfaction of the show cause test will not automatically establish satisfaction of the unacceptable risk test. So much is made plain by s 19(3) of the Act. 4. The Act does not, at least in express terms, provide the content of the show cause test. Some propositions emerge from the cases. The presumption of innocence and the right to be at liberty remain fundamental common law principles. 5. Matters relevant to the unacceptable risk test remain relevant to the show cause test but are not the exclusive considerations: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20]. 6. The word "justified" has been observed to be "conspicuously open textured": see Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 per Leeming JA at [85]. 7. His Honour, however, observed that some content is given to the expression by considering how the legislature anticipated it would be applied. That is, by persons, and ultimately if bail is initially refused, by courts familiar with the basic principles of the Australian legal system. 8. The requirement to show cause is not therefore an invitation to arbitrary decision-making by requiring an applicant to satisfy a test devoid of content. 9. While the onus is on the applicant to show cause, relevant considerations, at least in a case such as the present where the applicants have not been convicted, include those which properly relate to the continuing detention of a person who is presumed innocent of the charges against them. Hence the observation of Leeming JA in Barr (a pseudonym) v Director of Public Prosecutions at [86] that: "Courts may be expected to give great weight to the absence of any bail concerns in determining whether an accused person discharges the onus of showing his or her detention is not justified. It may well be that very little would be required in such a case to conclude that the person's detention is not justified." 1. In the present applications, the show cause test is a not insignificant hurdle, having regard to the allegations and the manner in which they inform the bail concerns. A relevant consideration on any bail application is, however, the likely duration of the person's custody awaiting resolution of their charges. Of significance in all three applications is the likely duration of that custody. 2. As I have indicated, each applicant has been in custody for a period in excess of two years and eight months. Further delay is expected. 3. The delay that has occurred to date is largely related to the issue relating to the admissibility of the AN0M evidence. Subsequent to their arrests, there was no doubt some time involved in compiling and serving briefs of evidence. Further to this, in May 2022, the applicants joined with 62 other accused persons to make application to cross-examine Crown experts in relation to the question of whether the evidence sought to be relied on by the Crown was the result of the interception of a communication passing over a communications system. 4. The Director did not oppose the applications. As a result, evidence was taken from a number of experts who were cross-examined by representatives for the applicants. 5. While this appears to be the primary reason for the delay, the matters have also been adjourned on occasion for case conferences and other purposes. The result is the matters are next before the District Court on 22 March 2024. 6. It has been indicated in that Court that the matters will on that date be set down for trial. In the event that the matters are to be set for trial it is significant to note that there are a large number of cases to be listed, there being a significant number of trials arising out of Operation Ironside. 7. Counsel for the respondent in this Court accepted that this will be a challenge for the District Court. It was accepted that any trial date would be in 2025. Given the logistical challenge to which I have referred, it is difficult to have confidence that this will be in the first part of 2025. It is clear that if refused bail the applicants will spend in excess of three and a half years in custody, and probably closer to four years in custody, before their trials commence. 8. It is additionally not without significance that the applicants' time in custody has been subject to significant restriction as a result of the strictures put in place to deal with the COVID-19 pandemic. While this may have eased, the significantly more onerous quality of a substantial part of the time spent in custody by the applicants cannot be ignored. 9. In Simpson v R [2021] NSWCCA 264, I with the concurrence of other members of the Court, raised concerns about a delay between arrest and trial of approximately two years and referred to the remarks of the Sperling J in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 at [9]: "As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial but a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights." 1. The respondent submitted that in each case delay has been the result of the applicant's decision to exercise his forensic right to cross-examine Crown witnesses during the committal phase of the proceedings, thus elongating the time on remand before trial. 2. It was submitted that this should not merit a show cause finding as to do so could create a "perverse incentive" for all accused charged with a show cause offence to make pre-trial applications in an effort to delay their trial and obtain bail. 3. Firstly, it is not the case in the present matters that any applicants exhibited a perverse interest in delaying the proceedings for the purposes of obtaining bail. Insofar as the concern is raised in relation to what might occur in the future in other matters, any applications before courts conducting committal proceedings, or trial courts, for adjournment or to otherwise delay proceedings can be expected to be dealt with by those courts on their merits. Unmeritorious applications should be refused. Further, at least where persons are represented, there are clear ethical obligations on those representatives. 4. I can accept that in a case where the Crown bears responsibility for the delay, there is a tension between a prosecution submission that an applicant should remain in custody and the Crown's conduct of the proceedings in a manner that impedes the efficient resolution of the charges. However, that there is no such responsibility for delay on the part of the Crown in the present case does not mean that the delay is automatically mitigated. It remains the simple fact that if refused bail the applicants will spend a very significant period of their lives, and the lives of their family members, in custody bail refused. 5. Further, while it has been the forensic choice of the applicants to ventilate issues with respect to admissibility of evidence, the applicants are not responsible for the difficulties that arise in relation to obtaining dates available to the Court, the various counsel involved and the various experts. 6. In considering this issue, I accept that the time in custody can be viewed and indeed should be viewed in the context of the serious allegations and the strength of the cases against the applicants. Even so, the period of time to which I have referred remains, in my view, extreme. It is unnecessary for me to decide whether the delay on its own is sufficient to show cause. Each of the applicants put evidence before the Court to establish significant ties to family and community. I will deal with that evidence in the context of the unacceptable risk test as applied in the case of each applicant. For present purposes, it is sufficient to state that I am of the view that in each case, the combination of the delay together with the applicants' legitimate desire to be at liberty on bail to maintain significant family and community connections is such that cause has been shown. Unacceptable Risk Test 1. I turn then to the unacceptable risk test which applies to each of the applications. Pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns that the particular applicant presents an unacceptable risk then bail must be refused. Conversely, if there are no unacceptable risks, an order should be made which will allow the applicant to be released. 2. The bail concerns are those matters set out in s 17 of the Act. They are the risk of the applicant failing to appear, the risk of the commission of a serious offence, the related risk that the applicant will endanger the safety of victims, individuals or the community, and finally, the risk of interference with witnesses or evidence. 3. Those matters are to be assessed having regard only to the matters set out in s 18 of the Act. Section 18 includes the conditions available to mitigate any concerns. It also includes, as a matter to be considered, the length of time the person is likely to spend in custody if bail is refused. That is, the delay is a matter which informs the question of whether the particular risk that exists in a case is one that can be found to be unacceptable. 4. I turn to the application of that test to each applicant. Mr Okusitino 1. Firstly, Mr Okusitino. In relation to Mr Okusitino, I do have a concern with respect to the risk of the commission of a serious offence and related concern with respect to the risk to the community more generally. 2. That is based on the material before the Court which suggests the applicant occupied a reasonably senior position in a criminal enterprise involved with very large quantities of drugs and money. It is further informed by his criminal history. That criminal history began in the Childrens Court in 1997 and includes matters of dishonesty and violence but most significantly, whilst the entries are not necessarily significant in number, the applicant was convicted of supplying a prohibited drug and sentenced in 2016 to imprisonment for a period of three years with a non-parole period of one year. 3. The offence to which that sentence relates was committed in March 2014. The parole period in relation to that sentence concluded in September 2019, less than 18 months prior to his alleged involvement in the present offences. A concern is obviously that, based on that history and the present allegations, there is a prospect he will return to the commission of similar offending if released from custody. 4. Against this, the applicant, Okusitino puts forward a proposal for bail which would have him return to live with his wife and young child. By that arrangement, his wife will be able to continue in her work. She is a cosmetic nurse but appears to be in a relatively senior management position within the company for which she works. The applicant would be under effective house arrest, with limited movement beyond his residential address. Whilst there, he would take day-to-day responsibility for his daughter who is now two years of age. Additionally, that proposal would be enforced by the addition of electronic monitoring. 5. It is necessary at this point to say something about the proposed electronic monitoring. The Crown relied on the statement of Federal Agent Luke Wilson, raising concerns with respect to not just the efficacy of such monitoring but also the imposition on the Australian Federal Police in dealing with accused persons on bail subject to electronic monitoring. 6. With respect to the latter concern, it is relevant to note the observations of Beech-Jones CJ at CL in Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 at [8]: "Fifth, some of the material relied on by the Crown before Hamill J and tendered on this application concerned the supposed inadequacy of electronic monitoring and the resourcing problem it represents for the Australian Federal Police ("AFP"). In that regard I repeat what I stated in Lin v Director of Public Prosecutions (Cth) [2017] NSWSC 312 at [26] to [44]. In particular, both the principles of equal justice and s 68 of the Judiciary Act 1903 (Cth) contemplate that, absent specific legislative provision to the contrary, if a person charged with a State offence can be released on bail and subject to electronic monitoring then so should a person charged with a comparable Federal offence (at [40]). Further the costs incurred by the AFP in monitoring a person on bail is simply part of the obligations that an investigative body assumes when it causes charges to be laid in this State (at [41]). 1. Bathurst CJ explicitly agreed with his Honour's additional reasons, necessarily including that which has been set out. Despite the Commonwealth Director being a party to this decision, no reference was made to it in the written submissions of counsel for the Director. Indeed, reference was made to a decision of a single judge of this Court, inconsistent with, and predating, the decision in Saadieh. 2. Statements such as that of Federal Agent Wilson, in my experience, are commonly tendered when the issue of electronic monitoring is raised. This is surprising. It is not open to the Director to ignore statements of the Court of Criminal Appeal on the basis that it is not convenient to the Director's case. I would expect serious consideration would be given to the tendering of any such statements in the future, insofar as they deal with the issue of the imposition electronic monitoring poses to the AFP. The issue of the efficacy of electronic monitoring is a different consideration to which I will return. 3. It must be noted that electronic monitoring will not necessarily, at least directly, stop the applicant committing offences from his home. In considering the risk, it is important, in my view, to bear in mind the nature of the offences with which I am concerned. 4. This is not a case of a person who it is suggested may be prone to committing an offence in a spontaneous and unconsidered way as might be the case where, for example, a drug addiction or a mental impairment is a significant concern. Rather, the type of offending with which I am presently concerned is offending requiring the engagement of an active decision-making process on the part of the applicant. 5. That does not rule out the applicant making a decision to engage in serious criminal conduct. However, if one were to assume the commission of the present offences, his decision to become involved was no doubt based on the assumption on his part that he could avoid detection, in part, as it happens, by the use of the AN0M device. That has plainly turned out not to be the case. Having come to the attention of the authorities, and being made subject to strict conditions, it would be foolhardy for him to think he could commit a further offence without detection. 6. Additionally, even if he were to be so foolhardy, the fact that he has come to the attention of the authorities and is consequently subject to strict conditions on bail, including effective house arrest, is, in my view, likely to have the result that he is unlikely to be trusted by others with whom he might otherwise engage in the commission of serious criminal offences. 7. Balancing all of the relevant considerations, I am ultimately of the view that the risk of the commission of a serious offence or otherwise endangering the community, whilst present, are not such as to be unacceptable. 8. I turn then to the risk that the applicant will fail to appear in answer to any bail. In that regard, the observations of Federal Agent Wilson with respect to efficacy of the electronic monitoring are relevant. 9. Federal Agent Wilson points out a number of instances where an electronic monitor has been removed and an attempt has been made to flee, or in one case where the device has malfunctioned and reported false positives. In response to Federal Agent Wilson's statement, a statement of Laura Windsor of Allied Universal was tendered by the applicant. 10. Ultimately, assessing the evidence, it seems that there has been at least one case where a person subject to electronic monitoring has successfully fled the jurisdiction. A limited number of other persons have come close but have been stopped. In the one case where a person was successful in fleeing the jurisdiction, an alert was sent by the electronic monitoring company to the relevant contact at the AFP who, as it transpires, was on leave at the time and did not receive the communication. Ms Windsor's statement indicates that procedures have been updated as a result to ensure that such a circumstance does not repeat. 11. In the cases where the person has been arrested attempting to flee the jurisdiction, it can be accepted that the State was required to deploy significant resources in order to recapture the individual. It is not apparent that the expending of those resources is a matter within s 18 of the Act. 12. It must be accepted that the system of electronic monitoring is not foolproof. The evidence, however, suggests that it is a small minority of persons who have attempted to escape on bail while subject to electronic monitoring and even fewer have been successful. 13. In my view, the electronic monitoring proposed does offer a very significant level of comfort. That comfort is to be viewed in the context of the personal circumstances of the applicant, which further reduce the risk of him failing to appear. He is 40 years of age. He relied on an affidavit of his wife which establishes that the couple have been in a relationship for the past eight years. As I have previously indicated, there is a child of the relationship, currently aged two. Prior to his arrest, the applicant was the day-to-day care giver for the child. The wife's affidavit indicates her hope to have a second child. 14. The applicant's wife is prepared to lodge security, being the equity in their home, together with such savings as she has managed to accumulate. The surety offered is not as much as is sometimes seen but I accept that in the context of the circumstances of the applicant and his wife, it is substantial. 15. The applicant has four siblings, all of whom reside on the Central Coast where it is proposed the applicant will live, as does his mother. I note that his siblings and mother are, on the information provided to me, living in rented accommodation and not able to add to the security available. 16. In my view, the risk of the applicant failing to appear is sufficiently mitigated such that it is not unacceptable. 17. Finally, I note that I do not consider there to be an unacceptable risk of interference with witnesses or evidence having regard to the nature of the case. 18. It follows that in the matter of Okusitino, bail will be granted subject to conditions. I will return to the conditions at the conclusion of my reasons. Mr Lavulo 1. In relation to the matter of Lavulo, there is the risk of the commission of a serious offence and the related risk that the applicant will endanger the safety of the community more generally. The evidence is that he was engaged in very serious crime. As I have indicated, that involved not only the offence with respect to the border controlled drug but also the money laundering offences, including his possession of in excess of $1 million. 2. Against those matters, the applicant, Lavulo is a man with no criminal history. Further, whilst he is not suggested to be at the lowest level, he was also not suggested by the Crown to be at a senior level within the organisation. 3. The proposed conditions with respect to Mr Lavulo would have him on a form of house arrest. There is not in his case a proposal for electronic monitoring. Nonetheless, I am of the view that the proposed home detention condition provides significant comfort and an enforcement condition is available in relation to him. 4. Similarly to Mr Okusitino, it seems it would be foolhardy for him to engage in similar offending and perhaps even less likely that others would be willing to engage with him. 5. In the case of Mr Lavulo, the conditions proposed, in my view, are such as to sufficiently mitigate the risk of the commission of a serious offence or the endangerment of the community to a point that it is not unacceptable. 6. I turn then to the risk that Mr Lavulo will fail to appear at court in answer to his bail. 7. The applicant is 34 years old. He is not an Australian citizen. Rather, he is a citizen of the United States, having migrated here in 1994. That is in the order of 30 years ago. He has permanent resident status in this country. It is clear that he has lived the vast majority of his life here. 8. He is married and has four children ranging in age from 11 down to three. It is proposed that he will return to live with his family. Prior to his arrest, he was the primary income earner, however, he does not have employment to return to. It is proposed that he will take over a role at home with the children, potentially allowing for his wife to increase her work hours. She has, during the applicant's incarceration, been working part-time, having found it difficult to survive on the Centrelink payments she was receiving. 9. There is a surety available. The applicant's cousin is willing to put forward equity in a property in the sum of $240,000. I have been told in that context that the applicant's immediate family do not have any property or significant assets. The applicant is, on my view of the evidence, substantially embedded in the community. The risk of him failing to appear, in my view, is sufficiently mitigated so as not to be unacceptable. 10. There is not an unacceptable risk of interference with witnesses or evidence. 11. It follows that bail should be granted subject to conditions to which I will return. Mr Iongi 1. I turn then to the matter of Iongi. In the matter of Iongi, there is a risk that the applicant will engage in a serious offence or otherwise endanger the community. The observations I have made with respect to the other applicants are equally apposite in relation to Mr Iongi; that is, it seems unlikely that he would choose to engage in similar offending but that even if he were to do so, there is the additional difficulty of persons being willing to deal with him given the fact that he has now come to the attention of the authorities. 2. There is additionally, in Mr Iongi's case, a proposal for strict conditions, including effective home detention to be enforced by electronic monitoring. The statement of Federal Agent Wilson was also tendered in Mr Iongi's case, as well as a response from Ms Windsor tendered by the applicant. The observations I have made in that regard, with respect to Mr Okusitino, also apply to Mr Iongi. 3. Mr Iongi is alleged to have been in a senior managerial role in the offences. He also has a criminal record, although in his case there is nothing on the record in relation to serious drug related offending. The offences on the record include an offence of assault occasioning actual bodily harm in 2007; damaging property in 2010; what appears to be a charge of violent disorder in 2012; traffic matters in 2012 and 2013, and an assault matter in 2014. 4. The last matter resulted in a non-association order, of which there was a breach in 2015. There are no convictions since that time. The Crown points to the breach of the non-association order as evidence suggesting the applicant may not comply with a court order in relation to bail. There is no evidence before me as to the circumstances of the breach of that order other than the inference to be drawn from the fact that it was dealt with by s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Given that, I do not place any weight on that matter. The record ultimately does not itself add to my concerns in relation to the risk posed. 5. There is also evidence that the applicant, Mr Iongi, is, or at least has been, a member of a particular outlaw motorcycle gang. That matter, together with the allegations against the applicant, are relevant and have exercised my mind. 6. Ultimately, balancing all relevant considerations, including the stringent conditions proposed and the delay, I am of the view that the risks of the commission of a serious offence or harm to the community more generally are sufficiently mitigated such that they are not unacceptable. 7. I turn to the risk that Mr Iongi will fail to appear. Mr Iongi is 36 years old. Prior to his arrest and incarceration in relation to these matters, he was married. He had been in a relationship with his then wife for approximately 19 years. There are two children of that relationship, aged 16 and five. He is the youngest of six siblings, all of whom live in Sydney, as do his parents. Between the applicant and his siblings there are 10 children (grandchildren to the applicant's parents). The family is apparently close. 8. As I have indicated, the applicant's marriage broke down after his arrest. The applicant's wife subsequently formed a new relationship. She suffered some health problems in July 2023 and the applicant's children, who had been living with their mother, then went to live with the applicant's sister for a period of some three months. At the hearing, I was told that the children's mother's new relationship has broken down, resulting in the children returning to live with the applicant's sister. That involvement is demonstrative of the close family ties between the applicant and his siblings, asserted by senior counsel for the applicant. 9. It is proposed that the applicant will live with his parents at Blacktown, together with his eldest sister, who also resides there. The applicant's parents are 77 and 75 years old respectively. They have some serious health concerns. It is suggested the applicant will assist them both in relation to those health concerns and more generally. 10. While the applicant's marriage has broken down, there is no suggestion he does not maintain a close relationship with his children. As I have indicated, it does appear that the applicant's extended family is close. 11. Counsel for the Director pointed to an entry on the applicant's record in relation to an occasion when it appears he did not attend court and a warrant was issued. That related to a charge of being an unlicenced driver in 2013. There is no information as to what led to that non-appearance and certainly no suggestion that he left the jurisdiction. The nature of that charge and the likely circumstances are sufficiently removed from the present matter that I place no weight on it. 12. The applicant's connections to the community are such that, together with the strict conditions proposed, in my view, the risk of him failing to appear is sufficiently mitigated so as not to be unacceptable. 13. I finally note that there is not, in my view, an unacceptable risk of interfering with witnesses or evidence. . 14. It follows that in the case of Mr Iongi, bail is granted subject to conditions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2024