R v GONCALVES Victor Manuel [2011] NSWSC 147 (10 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	R v GONCALVES Victor Manuel
Medium Neutral Citation:	[2011] NSWSC 147
Hearing Date(s):	10 March 2011
Decision Date:	10 March 2011
Jurisdiction:
Before:	Kirby J
Decision:	Bail refused
Catchwords:	BAIL - Application for bail - s 8A of the Bail Act 1978 - Whether applicant satisfied court that "bail should not be refused" - Charge of supply commercial quantity of cocaine - Strong Crown case - Presence of firearms - Applicant's wedding scheduled in following days
Legislation Cited:	Bail Act 1978 Drug Misuse and Trafficking Act 1985
Cases Cited:
Texts Cited:
Category:	Interlocutory applications
Parties:	Victor Manuel Goncalves (Applicant) The Crown (Respondent)
Representation
- Counsel:	Counsel: Mr S Hanley SC (Applicant) Mr D Curran (Respondent)
- Solicitors:	Solicitors: Gregory J Goold Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File number(s):	2011/75509
Publication Restriction:

Judgment

1. HIS HONOUR: This is an application for bail by Victor Manuel Goncalves, a man aged 34 years, who is charged with a number of drug offences. The most serious is an offence under s 25(2) of the Drug Misuse and Trafficking Act relating to the supply of the drug cocaine. The amount of the drug in relation to that charge is said to be 380 grams, which is more than a commercial quantity, that being defined as more than 250 grams. It carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years.
   
2. In addition, there are other drug charges. They relate to drugs found in the home of the applicant; namely, 1.6 grams of cocaine, 3.4 grams of amphetamine, and 23.1 grams of methyl amphetamine, the last being found in the freezer at his home address.
   
3. The charges relating to the smaller quantity of cocaine and amphetamine are brought under s 10(1) of the Drug Misuse and Trafficking Act where the penalty is 2 years imprisonment. The larger amount of methyl amphetamine, 23.1 grams, is a charge brought under s 25(1), an indictable quantity being 5 grams for that particular drug. On the Crown case, on that particular charge, the amount said to be in the possession of the applicant amounts to 230 doses of that drug, according to ordinary street usage.
   
4. In addition, the applicant is charged with knowingly dealing with the proceeds of crime; namely, almost $257,000.
   
5. The circumstances giving rise to the charges are set out in the Crown papers, exhibit A. Mr Goncalves was born in Portugal. He came to this country at the age of 11. He was educated in Australia and has lived in Australia since that time. As mentioned, he is now 34 years old. Nonetheless, he has dual citizenship. He is said to have recently renewed his Australian Visa.
   
6. On the Crown case, he was a close companion of his co-accused, Menzie Sefian. That much is not in contest. As will shortly be described, Mr Sefian was to be the best man of the applicant at his wedding, which was scheduled for Saturday next, 12 March.
   
7. In November 2010 a task force was formed by the police to investigate the trafficking of drugs in the Sutherland Shire. In the course of an investigation the police identified Mr Sefian and the applicant as persons involved in the trafficking of drugs. It was clear that they had a close association. On the Crown case, Mr Sefian is the major player and Mr Goncalves may be described as his lieutenant. Mr Sefian is said to have close ties with Thailand and has lived in Thailand from time to time. There is some suggestion that he had intended to return to Thailand.
   
8. On 9 January 2011, according to the Crown papers, there were conversations between Mr Sefian and others, including someone associated with an outlaw motorcycle gang, relating to drugs, specifically cocaine. These conversations were lawfully recorded by listening device.
   
9. On 19 January 2011 Mr Goncalves attended Mr Sefian's unit at Cronulla. Their conversation was intercepted. In the course of the conversation, one gathers from the description given in exhibit A, Mr Sefian instructed the applicant in the use of a firearm. He made reference to a "22 calibre" and "8 gauge ". He said that he should "keep this with you just in case for protection". After the conversation, the applicant was seen to drive Mr Sefian to the airport where he boarded an international flight to Bangkok.
   
10. Thereafter the police, under a covert search warrant, searched Mr Sefian's unit at Cronulla. They located various quantities of drugs, including 300 pills and identified what might be described as paraphernalia of a person involved in drug dealing. They also located a .22 calibre pistol with five rounds of ammunition in the ceiling of the main bedroom. Under the same warrant the police returned to the unit on 10 February and found additional drugs in a small quantity.
    
11. On 1 March 2011 Mr Sefian returned to Australia. At 6.30 that day Mr Goncalves was seen to attend Mr Sefian's unit carrying a sports bag. Their conversation within the unit was then lawfully recorded. It was a conversation in which the applicant accounted to Mr Sefian for what one would infer were drugs sold during Mr Sefian's two-week absence. Various names, which I infer were the argot names given to drugs, were referred to and specific amounts of cash identified in the context of each, suggesting quantities of prohibited drugs obtained or sold whilst Mr Sefian was in Thailand. The cash, which was, one gathers, counted out, amounted to almost $257,000. There was also reference to moneys that were owing by persons who had apparently been given credit. The sums were not small. They included reference to $80,000 and $3500.
    
12. The Crown papers suggest that the inference should be drawn that the applicant was reading from some form of ledger, accounting to his superior.
    
13. There was then a discussion before they left about the purchase of other drugs and whether or not Mr Goncalves could vouch for them, which he said he could. He was asked by Mr Sefian to get a price. This appears to be a conversation between people who were heavily involved in drug trafficking.
    
14. On 5 March 2011 there was a further conversation, according to the Crown papers, between Mr Sefian and the applicant that was lawfully intercepted. They discussed "washing of money", they referred to a construction company and $68,000. Again the amounts identified were large. This was not, one would infer, a small enterprise.
    
15. One then comes to the facts relating to the most significant charge against the applicant, that under s 25(2) of the Drug Misuse and Trafficking Act . On 5 March 2011 Mr Sefian hired a red Ford Falcon sedan from Avis Rent A Car. Thereafter there was a conversation between the applicant and Mr Sefian where they discussed "flattening out bags", "so it can fit". Sefian said "there was one with a 8 on it".
    
16. The Crown invites an inference, based upon the search which I am about to describe, that this was a reference to the concealment of drugs under the vehicle.
    
17. Later the same evening Mr Goncalves returned to Mr Sefian's unit. They had a further conversation about fitting something to the vehicle. Their conversation suggested that the two of them, or at least one of them, would travel to Melbourne to deliver what was about to be concealed.
    
18. Mr Goncalves was captured on security CCTV footage driving the red Ford Falcon sedan underground to the car park. He was also seen with Mr Sefian approaching the hire car carrying a plastic Myer shopping bag. He and Mr Sefian remained with the vehicle for a period of time before he, Mr Goncalves, was seen driving the vehicle out of the car park. The vehicle was then parked on the street.
    
19. At 6.15 the next morning, 6 March 2011, investigators conducted surveillance outside the unit of Mr Sefian. They saw him walk out of that unit carrying two bags of luggage towards the red hire car. He was then approached by police and placed under arrest. The vehicle was examined. Located under the vehicle was a plastic container secured on the underside of the driver's compartment. It was held both by industrial strength magnets and tied shut using black cable ties.
    
20. Within the black plastic container there was two clear plastic bags containing white powder. They were later weighed and found to be 380 grams. In one there was a quantity of 5 ounces and in the other 8 ounces. When asked, Mr Sefian denied any knowledge of the container or its contents.
    
21. The police then conducted a search of his unit. They found both drugs and the .22 pistol together with the five rounds of ammunition. In addition they found $41,350 and a heat sealing machine. On the plastic strips of two plastic bags within the kitchen they found the numerals written on them of 8 and 5, which the Crown suggests was a reference to the quantity of drugs in the two bags, and a reference to the 8 referred to by Mr Sefian in his conversation with Mr Goncalves.
    
22. At 8:30 am investigators were conducting surveillance at the home of Mr Goncalves at Edgebaston Rd, Beverly Hills. They saw him enter a van and they then stopped that van and arrested him for supplying drugs. They asked for his residential address. He gave three different addresses.
    
23. They ultimately executed a warrant on his home at Edgebaston Rd, Beverly Hills and they found the quantities of drugs which are the subject of the specific charges that I have described. They also found clothing which matched the clothing shown on the CCTV footage the day before at the garage under the units of Mr Sefian.
    
24. In addition they found black plastic cable ties which appeared to be similar to those used to secure the black plastic box under the vehicle. Those cable ties are being subjected to expert analysis to determine whether or not they are the same or similar to those used in the concealment.
    
25. The applicant makes application recognising that he must overcome the very strong presumption against bail which arises under s 8A of the Bail Act in relation to the charge under s 25(2) of the Drug Misuse and Trafficking Act , that is, he must persuade the court that "bail should not be refused".
    
26. There are many cases dealing with that expression, having regard to the Second Reading Speech and the intention of Parliament. It is recognised as a very strong indication by Parliament in the context of serious drug offences, that persons arrested for such offences not be released on bail unless they can demonstrate a strong claim to bail.
    
27. In the ordinary case, it is the strength of the Crown case which will guide the Court as to whether or not the applicant has satisfied that onus. Here, I have formed the view -- and I do not understand the view to be seriously contested -- that it appears to be a strong Crown case. It is the more worrying for three reasons.
    
28. First, there appears to have been a fairly large-scale drug operation involving very significant sums of money. Secondly, there is a reference to firearms and specifically to two firearms, a .22 and the other an 8 gauge. The .22 firearm has been located. The police have not located any 8 gauge firearm. Thirdly, it is apparent from the close association between the applicant and Mr Sefian that he was reasonably high in the drug hierarchy, although Mr Sefian was clearly in charge.
    
29. Mr Sefian, it might be noted, had a Porsche motor vehicle and when his flat was searched there was found to be much of the paraphernalia commonly used by persons involved in drugs, including multiple phones as well as the matters I have described.
    
30. One then comes to the reasons for bail that have been put forward on behalf of the applicant. They are unusual and they certainly have made me hesitate, and I acknowledge that my mind has wavered, although ultimately in the context of this case, I am not satisfied that bail should not be refused.
    
31. The first and unusual circumstance is that Mr Goncalves was due to be married this Saturday at St Mary's Cathedral. The church is booked. The reception has been booked and paid for. People have been invited. There is an expectation it will proceed. Money has been spent, put at $40,000, where the chances of refund are slim and probably non-existent. This is money which has been spent by his fiancee's family and his fiancee herself.
    
32. Secondly, it is said on behalf of the applicant that he has strong community ties. He has been here for more than 20 years. His mother and father, though separated, live here. Indeed, his father has recently undergone a serious operation and is presently disabled to the point where he needs assistance. That assistance was being provided, in part one gathers, by the applicant and that is put forward as one of the matters which should be weighed in his claim for bail.
    
33. In addition, his parents-in-law to be have, at short notice, pledged $40,000 in cash to secure his attendance and his fiancee $10,000 by way of surety. In addition, Mr Goncalves owns the house at Beverly Hills, subject to a mortgage. It is said that he has equity which certainly exceeds $100,000. He would be prepared to give, without security, an undertaking that he would forfeit such a sum.
    
34. The issue arises as to when the matter is likely to proceed. It is likely to be a joint trial. On my understanding, there are two accused, Mr Sefian and the applicant. It is, in terms of similar operations, perhaps rather less complex than most. It does not appear to involve a huge number of telephone intercepts or listening devices as one sometimes finds in cases of this sort.
    
35. The matter was mentioned today before the Local Court. A timetable was set for the service of the police brief. It is to be served before 21 April. It is in for mention on 28 April. The Crown frankly acknowledges that, although his expectation is that the bulk of the Crown brief will be served by that time, aspects of the forensic evidence may still be outstanding. There is DNA evidence that has been sought relating to Mr Sefian. I have made reference to forensic evidence into the composition and nature of the cable ties found in the applicant's home. These matters may delay the trial.
    
36. This application is very early after the arrest of the applicant. Sometimes these matters come before the courts when there is prolonged delay and once a lot more is known about the Crown case, through the service of the police brief or the committal proceedings.
    
37. If I asked myself the question, absent the aspect relating to the disruption and cancellation of a wedding, would Mr Goncalves have a claim to bail, I believe that the answer, on these facts, is certainly that he would not at this stage. It may be otherwise, if there were likely to be a prolonged delay in the matter coming to trial.
    
38. The issue then arises, what weight then should be given to the misery that will be caused and loss of money that will flow from the cancellation of the wedding? Unfortunately, on my view, that matter does not tip the balance in favour of bail being granted.
    
39. Often family situations arise which are poignant and which involve loss and anguish, including funerals, sickness of children, and other such matters. In some cases they may carry the day. Here I come back to the serious nature of the charges and the strength of the Crown case.
    
40. The worrying features, from my perspective, are first, the significant quantity of drugs, their diverse nature and the ongoing nature of the drugs supplied, secondly, the significant amounts of money involved, thirdly, the presence of firearms, and finally, the relatively high office which it appears that the applicant, on the Crown case, held. He was not a mere courier.
    
41. I regret in the circumstances, notwithstanding the anguish and the misery, I am not persuaded that bail should not be refused.
    
42. I therefore refuse bail.
    

**********