R v Voltan [2019] NSWSC 919

Supreme Court New South Wales

Medium Neutral Citation: R v Voltan [2019] NSWSC 919 Hearing dates: 17 July 2019 Date of orders: 18 July 2019 Decision date: 18 July 2019 Jurisdiction: Common Law Before: Harrison J Decision: Bail granted Catchwords: BAIL – show cause – whether unacceptable risk - whether Crown's bail concerns can be mitigated by appropriate conditions Legislation Cited: Bail Act 2013 (NSW), s 17(2) Category: Principal judgment Parties: Brydi Olivia Voltan (Applicant) Crown (Respondent) Representation: Counsel: L Randle (Applicant)

Solicitors: Matouk Joyner Lawyers (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2019/169153 Publication restriction: Nil

Judgment 1. HIS HONOUR: Brydi Olivia Voltan applies for bail. She is charged with a large number of offences including three counts of knowingly deal with the proceeds of crime, knowingly take part in the supply of a large commercial quantity of MDMA and cocaine and participating in a criminal group. By reason of the fact that Ms Voltan has been charged with an offence under the Drug Misuse and Trafficking Act 1985 involving the supply of a commercial quantity of a prohibited drug, she is required to show cause why her continued detention is not justified. 2. Ms Voltan was originally arrested on 29 March 2019. She was released on that day after speaking to the police. However, in the events that occurred, she was re-arrested on 21 May 2019 and has remained in custody since then. All of her charges are next before the Blacktown Local Court for mention on 25 July 2019. 3. Ms Voltan is 24 years of age. She left school at the age of 16 before completing her senior years and went to TAFE where she qualified as a beautician. She thereafter worked continuously in the beauty industry until she commenced to work with her father in the construction business. The events that give rise to these proceedings all occurred at a time when Ms Voltan had moved away from living with one or other of her parents and when she was living alone in Sydney. 4. The evidence reveals the following matters. 5. First, Ms Voltan has no relevant criminal record of any kind. It follows that the offences with which she is charged are her first serious encounter with the criminal justice system. 6. Secondly, Ms Voltan is currently 12 weeks pregnant. Her anticipated date of confinement is February 2020. Although unstated, it seems clear that Ms Voltan's preference, if it were not otherwise obstetrically indicated, is that she should be in the community when her child is born. 7. Thirdly, Ms Voltan suffers from a condition known as congenital hyposplenism or asplenia. That condition renders her susceptible to bacterial sepsis, particularly with the encapsulated organisms such as pneumococcus, meningococcus and others. The unavoidable reality is that an urgent response to the complications of that disease is more likely to be available in the general community than in a custodial setting. 8. Fourthly, Ms Voltan's mother suffers from a serious form of adenocarcinoma diagnosed in 2008 for which she has been receiving treatment for some time. That treatment has included a series of very significant surgical procedures to the precise details of which it is presently unnecessary to refer. Her mother's prognosis appears to be uncertain. Her surgeon offered the opinion that the psychological impact on members of Ms Voltan's mother's family could not be understated [sic, presumably "overstated"] and "would be immense". Ms Voltan is disproportionally suffering from this circumstance by reason of her current custodial status. 9. Finally, and necessarily only inferentially at this stage, Ms Voltan appears to have very unfortunately fallen under the influence of an unsavoury criminal group who have managed to recruit or involve her in activities to which she would not appear to have had any previous exposure. I was impressed by the evidence given by the officer in charge of the investigation which, from my perspective, appeared to indicate that he was of a similar view. He patently attempted to deal with Ms Voltan very fairly on their first encounter. It is possible that a considerably different outcome for Ms Voltan may have ensued if she had then appreciated the burden of his wise words suggesting to her that she was then at a fork in the road. 10. The Crown continues to maintain that Ms Voltan represents an unacceptable risk of continuing to participate in criminal activity if released on bail and that the prospect of her doing so cannot be adequately or satisfactorily mitigated by the imposition of appropriate conditions. I gleaned from my observations in the course of this application that this view is enthusiastically supported by some members of the investigating team. It will be clear from these reasons that I do not share it. 11. With great respect, I am unable to accept that in the present case Ms Voltan's potential for continuing criminal activity cannot be controlled while on bail. For what it is worth, there is in my view every prospect that Ms Voltan now appreciates the position in which she finds herself and that her risk of doing anything that will contribute to her immediate return to custody, if granted bail, is minimal if not completely non-existent. 12. It is highly likely that there will be a very considerable delay between now and when these matters come before a jury. There would also appear to be some considerable scope, for any number of reasons, to suspect that the charges may be dealt with prior to a trial. 13. I am satisfied that a pregnant woman of a young age with no relevant prior criminal history suffering from a congenital medical condition awaiting trial at some time well in the future has shown cause why her continued detention is not justified. 14. I am also satisfied that the bail concerns identified by the Crown are capable of being dealt with in a way that addresses any unacceptable risk of either failing to appear or of committing further offences. In the former respect, an adequate surety has been proposed and Ms Voltan is hopeful of residing with her mother in Victoria. In the latter respect, Ms Voltan should be confined to her place of residence unless in the company of her mother and her use of electronic communication can be restricted and therefore monitored.