Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ghorbanpour v R [2017] NSWCCA 154 Hearing dates: 26 June 2017 Date of orders: 26 June 2017 Decision date: 26 June 2017 Before: Hoeben CJ at CL at [1] R A Hulme J at [2] Garling J at [3] Decision: Application dismissed Catchwords: CRIMINAL LAW – particular offences – drug offences CRIMINAL LAW – release application – show cause offences – significant period of time on remand – strong Crown case – cause not shown Legislation Cited: Bail Act 2013 Drug Misuse and Trafficking Act 1985 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Principal judgment Parties: Saied Ghorbanpour (Applicant) The Crown (Respondent) Representation: Counsel: R Thomas (Applicant) G Newtown (Crown Prosecutors) Solicitors: A Sahinovic - Havas & Dib Lawyers (Applicant) M Day - Director of Public Prosecutions (Respondent) File Number(s): 2017/56432 Publication restriction: Not to be published prior to the completion of the trial of the applicant. Judgment 1. HOEBEN CJ at CL: I agree with Garling J. 2. R A HULME J: I agree with Garling J. 3. GARLING J: Saied Ghorbanpour (the applicant) filed a Release Application seeking a grant of bail on 15 May 2017. 4. At the conclusion of the hearing of the application on 26 June 2017, the Court ordered that the application be dismissed and indicated that reasons would be delivered in due course. These are my reasons for joining in with the order made on 26 June 2017. 5. This Court has jurisdiction to hear and determine the Release Application because the applicant has previously made two applications for bail to the Supreme Court in respect of the present charges: s 67(1)(e) of the Bail Act 2013. Previous Applications 1. A bail application was heard by Hidden J (as his Honour then was) on 14 December 2015. His Honour refused the application. At that time, the applicant had been charged only with two counts, whereas now he is charged with three counts, the details of which are set out below. 2. On 4 May 2017, a further bail application was heard by Walton J. His Honour refused that application. Offences 1. The applicant was arrested on 14 February 2015 and has been in custody ever since. 2. He was then charged with one offence of supplying a prohibited drug (pseudoephedrine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"), in a quantity of 12.3kg between 15 January 2014 and 15 February 2014. This is now count 3 on the Indictment. 3. On 15 April 2015, he was charged with a further offence contrary to s 25(2) of the DMT Act of supplying 60kg of pseudoephedrine between 1 January 2014 and 16 August 2014. This is now count 1 on the Indictment. 4. Finally, on 10 November 2016, the applicant was charged with a further count contrary to s 25(2) of the DMT Act of supplying 59.2kg of pseudoephedrine between 1 January 2014 and 3 October 2014. This is count 2 on the Indictment. 5. The applicant was committed for trial on 11 November 2015 in respect of the first offence. He was committed for trial on 18 November 2016 in respect of the other two offences. His trial for the three offences is listed at the Sydney District Court to commence on 5 February 2018 with an estimate of 10-15 weeks. Applicable Legislation 1. The provisions of s 16B(1)(f) of the Bail Act provide that each of the offences with which the applicant is charged is a "show cause offence". 2. Section 16A of the Bail Act provides that this Court, when making a bail decision for a show cause offence, "… must refuse bail unless the accused person shows cause why his or her detention is not justified". 3. Section 16A(2) of the Bail Act provides that if an applicant does show cause why his detention is not justified, this Court proceeds to determine the bail application in accordance with Division 2 of Part 3 of the Bail Act, namely by applying the unacceptable risk test. Crown Case 1. Count 1 refers to the supply of 60kg of pseudoephedrine, which constitutes a large commercial quantity. This count relates to the importation of pseudoephedrine disguised in loose tea leaves which after packaging was called "Cihan Tea" from the Middle East to Australia. 2. The evidence which the Crown proposes to lead, demonstrates a sophisticated organisation which was directed and funded by the applicant. 3. The organisation involved two individuals travelling to Iraq, where they purchased 50kg of pseudoephedrine. The purchase was funded by the applicant. The pseudoephedrine was infused into the tea by boiling the tea leaves and then brushing the wet tea leaves with the drug. The leaves were then dried, packaged and imported into Australia. 4. The importation and steps afterwards, including the supply of the tea, was extensively observed and monitored by law enforcement authorities. After two of the participants were arrested, further searches were executed. 5. One of the applicant's co-offenders gave an induced statement to police on 1 October 2014, in which he described in detail the entirety of the importation and supply activity. He also described a previously successful importation of tea in 2013, which went undetected. In respect of both importations, this co‑offender described in detail the role of the applicant, which was in essence, that he both directed and funded the importation and supply of both consignments of tea. 6. In February 2015, another co-offender gave a statement which detailed the importation, the subject of this offence. He described to police how he was given directions by the applicant, how the applicant organised for him to purchase a van which was used to transport the drugs in Sydney, how the applicant directed him to rent a storage facility in which the drugs were stored, and otherwise involved him in the offence. 7. In February 2017, a third co-offender also gave police a statement in which he described his role in the importation and supply, and that of the applicant. 8. Upon his arrest on 15 April 2015, the applicant did not participate in an interview. 9. With respect to the other two counts, there were considerable similarities with the Crown case that I have just described. These offences of supply involved individuals who were different from those involved in the first offence. 10. These two further offences involved a methodology which was very similar to that used for the first offence. The consignment of pseudoephedrine referred to in count 2 (containing 59.2kg) was hidden in boxes labelled "Franco Tea". The other consignment (containing 12.3kg) followed a similar method with the drug hidden in containers of tea labelled "Golestan Premium Indian Tea". 11. The applicant's two co-offenders in the two further offences each gave induced statements in February 2016 and March 2016, in which they described the entire operation surrounding the importation and supply of pseudoephedrine, the subject of these charges, and in which they incriminated the applicant as the person who directed the operation and funded it. 12. The accounts of these two individuals are corroborated by surveillance observations of the accused, and text messages sent by him to the participants making arrangements to meet them. As well, a meeting between the applicant and one of the co-offenders, in which discussion occurred about the extraction of the pseudoephedrine from the tea, and some difficulties which the applicant was having in so doing, was recorded. 13. Each of the co-offenders in each of the offences has pleaded guilty. They have been convicted and sentenced in the District Court and have served, or else are serving, terms of imprisonment. They will each be available to give evidence, and having regard to the terms of their pleas and the basis of the sentences imposed on each of them, it is reasonable to expect that they will give evidence which accords with their statements. Applicant's Submission 1. The applicant submitted that he has strong community ties and outlines in some detail how his family fled Iran in February 1998 and came to Australia at the age of 17, having been processed as legitimate refugees by the United Nations. 2. The applicant's submissions noted that at the time of his arrest he had his own business and was working full-time in that business. 3. The applicant submitted that he has very limited criminal history and, in particular, that his last conviction was in 2007, which is a considerable period of time prior the commencement of his trial. He noted that such criminal history as he has does not include any drug related offences and that the most serious penalty that he had received, was a s 9 bond, and that was at a time when he was about 19 years old. 4. The applicant's counsel conceded in his submissions that the offences with which the applicant is charged are serious, and that the Crown case appears to be relatively strong. With respect to the Crown case, the applicant drew attention to the fact that it is principally dependent upon the evidence of his co-offenders in respect of whom a jury may take an adverse view of their history, demeanour and credibility. With respect to these witnesses, the applicant submitted that they have lied in their statements and would say anything in order to obtain a shorter sentence and immediate deportation given that, as a consequence of the offences, there are considerable sums of money held for their benefit in Iran. However, in making this submission, the applicant did not take this Court to any material which would enable any assessment to be made about those very serious allegations. 5. The applicant submitted that there was no material demonstrating that he has any criminal associations or any affiliation to organised crime. In particular the applicant noted that his home has been subjected to search warrant procedures on six occasions and that on none of those occasions has anything adverse to the applicant been found. In addition, the applicant submitted that it was not suggested that he has substantial unexplained wealth. 6. The applicant submitted that having regard to the commencement date of the trial in February 2018, he will have been held on remand for over three years before a verdict is returned by the jury. He submitted that such a delay is extraordinary and unusual, particularly in circumstances where a committal hearing was waived by him. The applicant pointed to the fact that his trial was fixed to start in February 2017, but that it needed to be adjourned because of the relatively late pleas of guilty entered by his co-offenders, and it was necessary, if the applicant was to have a fair trial, that he await the finalisation of the sentencing proceedings against those co-offenders. 7. The applicant conceded that should a verdict of guilty be rendered in terms of any one of the offences, a term of imprisonment is inevitable. 8. Finally, the applicant submitted that having regard to the significant amount of telephone intercept material, listening device material and CCTV footage, that he needs to be at liberty to enable him to access devices to listen to, and watch, this material, without undue restriction. He submitted that this was necessary to enable him to give proper instructions to his lawyers in preparation for his trial. 9. The applicant also went on to deal with the unacceptable risk test, and proposed conditions for his bail which would include electronic monitoring. Crown Submissions 1. The Crown accepted that the period of delay prior to the applicant's trial commencing was a matter of concern for the Court. It explained the delay by reference to the size of the brief, which consists of 24 volumes, and, accordingly, the delay in the Local Court awaiting the finalisation and service of that brief; the consideration in late 2015 by the Commonwealth Director of Public Prosecutions as to whether the applicant would be prosecuted with an additional count relating to the events of importation of the drugs; difficulties in obtaining a date in the District Court for a trial of the projected length of this trial, and the time attributable to obtaining a second listing date for the trial after the first listed date was vacated to enable the co-offenders to be dealt with. 2. The Crown submitted that its case is very strong because each count on the Indictment is supported by extensive physical and electronic surveillance material. As well, the Crown points to the evidence of the co-offenders who provide a compelling account which is consistent with objective evidence. 3. Finally, the Crown points to the fact that, by reason of tendency and coincidence notices, the evidence on each count will be admissible against the applicant on each other account, thereby providing significant corroboration for the conduct of the applicant. 4. With respect to the alleged need of the applicant to be at liberty to enable him to have access to recorded material, the Crown informed the Court that the recorded material comprised a total of five hours. It submitted that there should be no difficulty for the applicant in that respect. 5. The Crown also made submissions with respect to bail concerns. 6. Ultimately, the Crown submitted that the applicant has not discharged the onus of proving that his continued detention is no longer justified or, if it had, that the Court could not be satisfied that the risks associated with releasing the applicant could be mitigated by bail conditions. Discernment 1. The Crown case against the applicant is, I am satisfied, a very strong one. The offences with which the applicant is charged are very serious and, upon conviction, the applicant faces a maximum sentence of life imprisonment. The offences were sophisticated, well planned and required the expenditure of significant financial resources. 2. In his written submissions, the applicant's solicitor informed the Court that whilst the applicant had a strong and viable defence to the Crown case, his instructions did not permit him to reveal that defence at this stage. 3. In those circumstances, the Court is limited in its assessment to the material presently available to it. On that material, for the purposes of this bail application, I would assess the likelihood of the applicant being convicted as a high one, because the Crown case is very strong. 4. The length of time which the applicant has spent in custody prior to his trial is an unduly long one. There are a number of reasons which explain why this delay has occurred. I would conclude that none of those reasons ought lie at the feet of the applicant. However, much of that delay has been caused by the size and complexity of the investigation and the need for the Crown to complete its case by having the co-offenders dealt with to finality prior to the applicant's trial starting. As well, the likely length of the trial, given the constraint on available court resources, has contributed to the delay. 5. If bail is not granted, the applicant will remain in custody for a further period of a little over 7 months until his trial starts. Thereafter he will be in custody for the length of the trial, which is somewhere between three and four months. Undoubtedly, this is a lengthy period. It is an important factor for this Court to keep in mind in assessing whether the applicant has shown cause. 6. The applicant also submitted that he needs to be at liberty in order to enable him to properly prepare the proceedings. I am unpersuaded, on the material with which the Court has been provided, that this is so. To listen to a total of five hours of recorded material is not onerous. As well, the applicant provided no material which substantiated any difficulty in listening to or giving instructions about the recorded material. A bald assertion by his counsel or solicitor in submissions is insufficient to ground any finding by this Court of a need for the applicant to be at liberty to prepare his defence. It is hard to imagine that since he was committed, about 18 months ago, the applicant has not been able to listen to five hours of recorded material. 7. The Court is faced, in determining whether or not the applicant has shown cause why his detention is not justified, with having to balance the fact that the applicant has not yet been convicted of any offence, that he will have spent a lengthy period of time in custody prior to his trial commencing on the one hand, with the strength of the Crown case and the consequent likelihood of conviction of three very serious offences on the other. 8. This is an evaluative judgment. It is not a matter in which any legal principle provided in any other case is determinative of the particular issues in this matter. It is relevant to note that the onus of persuading the Court that his continuing detention is not justified falls on the applicant. 9. In undertaking the evaluation necessary to determine this matter, I keep in mind that pre-trial custody is not the equivalent of serving a sentence after conviction, and that a court determining a bail application is not engaged in fixing a sentence for the applicant on the charge for which he seeks bail. 10. I am wholly unpersuaded that the applicant has shown cause why his detention is not justified. In the circumstances of this case, I regard the weight to be attributed to the strength of the Crown case and the likelihood of a conviction being entered after a jury trial as the factor to which the Court should give determinative weight. Whilst this does not meant that I regard the delay between arrest and trial as being an acceptable one, it does mean that, in the particular circumstances here, my assessment of whether the applicant's continuing detention is justified accords that delay less weight than might be awarded to it in other matters. 11. In light of my conclusion that the applicant has not shown cause why his detention is not justified, it is inappropriate to consider or remark upon the application of the unacceptable risk test to this applicant. 12. For these reasons, I decided that the application must be dismissed and, accordingly, joined in with the Court's orders on 26 June 2017. ********** 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: 09 September 2024