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Supreme Court 15 February 2024

R v Okusitino; R v Lavulo; R v Iongi

[2024] NSWSC 143

Drugs
CRIME BAIL RELEASE APPLICATIONS SHOW CAUSE UNACCEPTABLE RISK BAIL CONCERNS

Citation: R v Okusitino; R v Lavulo; R v Iongi [2024] NSWSC 143
Court: Supreme Court of New South Wales
Date: 15 February 2024
Judge(s): Dhanji J

Background

Three applicants sought release on bail in relation to serious federal drug trafficking and money laundering charges arising from Operation Ironside, a police operation that used purpose-built encrypted devices known as AN0M devices. The devices were distributed covertly within organised crime networks, allowing police to observe communications that participants believed were secure. Each applicant was arrested on 7 June 2021 and had been in continuous custody for over two years and eight months at the time of the hearing.

The charges against two of the applicants, Okusitino and Lavulo, arose from an alleged conspiracy to import 500 kilograms of methylamphetamine from South Korea in multiple consignments. Lavulo faced additional money laundering charges. The third applicant, Iongi, faced separate indictments alleging his involvement in large-scale drug trafficking and money laundering in the first half of 2021, with the Crown alleging he played a senior managerial role.

A central issue across all three applications was the admissibility of AN0M evidence. The Crown conceded that none of the charges could proceed if that evidence were excluded. The admissibility question remained unresolved, contributing substantially to the delay in bringing the matters to trial.

Legal Issues

  • Whether a second bail application by Okusitino was available under s 74 of the Bail Act 2013 (NSW)
  • Whether each applicant could satisfy the show cause test under s 16B of the Act
  • Whether each applicant presented an unacceptable risk under s 19 of the Act, having regard to the bail concerns in s 17 and the mitigating effect of proposed conditions
  • How the admissibility dispute over AN0M evidence should be treated in the bail context
  • Whether delay caused by an applicant's exercise of forensic rights is automatically mitigated for bail purposes

Decision

Issue 1: Availability of a second application (Okusitino)

This was Okusitino's second bail application in the Supreme Court, his first having been refused by Johnson J in August 2021. The Crown accepted that the substantial lapse of time constituted sufficient grounds for a second application, and the court agreed. Section 74 did not bar the application (at [50]-[51]). No such hurdle arose for Lavulo, who had made no prior Supreme Court application, or for Iongi, whose earlier refusal related to differently formulated charges (at [52]-[54]).

Issue 2: Show cause

The show cause requirement applied to all three applicants because the offences carry a maximum of life imprisonment and involve commercial quantities of controlled drugs (at [55]-[56]). The court acknowledged this was not an insignificant hurdle but held that the test does not invite arbitrary decision-making; the presumption of innocence and the right to liberty remain fundamental (at [58]-[62]). The court found that the combination of extreme remand delay exceeding two years and eight months, with a likely total remand period approaching four years, together with each applicant's legitimate desire to maintain significant family and community connections, was sufficient to establish cause (at [78]). The court declined to find that delay caused by the applicants' exercise of their forensic right to cross-examine Crown witnesses was automatically mitigated, noting that the applicants were not responsible for difficulties in obtaining court dates and that the delay remained extreme (at [73]-[77]).

Issue 3: Unacceptable risk (Okusitino)

The court identified a real concern about risk of reoffending, based on the Crown case that Okusitino occupied a reasonably senior managerial role in the criminal enterprise and his prior drug supply conviction, for which he was released on parole less than 18 months before the alleged offending (at [83]-[85]). However, the court found that the organised, deliberate nature of the alleged offending made it unlikely he would reoffend under conditions of effective house arrest and electronic monitoring, noting that detection had destroyed any assumption of invisibility he may have relied on (at [92]-[94]). The court was satisfied that the risk of reoffending and the risk of failing to appear were each sufficiently mitigated by the proposed conditions, his strong family ties, his role as primary carer for a two-year-old child, and his wife's willingness to offer security in the form of home equity (at [95]-[104]). Bail was granted with conditions.

Issue 4: Unacceptable risk (Lavulo)

Lavulo's involvement in serious drug conspiracy and money laundering offences, including possession of over one million dollars in cash, raised concerns about risk of reoffending. These were balanced against his lack of any criminal history and the Crown's own position that he was not at a senior level within the organisation (at [107]-[108]). The court found that proposed home detention conditions, without electronic monitoring, combined with an available surety of $240,000 and Lavulo's substantial embedding in the Australian community after approximately 30 years of residence, sufficiently mitigated both the risk of reoffending and the risk of failing to appear (at [109]-[115]). Bail was granted with conditions.

Issue 5: Unacceptable risk (Iongi)

Iongi was alleged to have played a senior managerial role in the offending and was noted to have been a member of an outlaw motorcycle gang. These factors were taken into account alongside his prior criminal record, though the record contained no serious drug offences and an earlier breach of a non-association order had been dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (at [120]-[122]). The court found, applying similar reasoning to the other applicants, that the deliberate and organised nature of the alleged offending reduced the prospect of reoffending under strict conditions. Electronic monitoring combined with effective home detention at his parents' Blacktown residence, his close ties to elderly parents and siblings in Sydney, and his ongoing relationship with his children sufficiently mitigated all identified risks (at [118]-[129]). Bail was granted with conditions.

Issue 6: Electronic monitoring and AFP resources

The Crown tendered a statement from a federal agent raising concerns about both the efficacy of electronic monitoring and the burden it places on the Australian Federal Police. The court noted that the Court of Criminal Appeal in Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 had addressed the resource imposition argument, and that this Supreme Court was bound by it. The court expressed concern that the Crown had relied on a single-judge decision inconsistent with and predating Saadieh rather than engaging with the Court of Criminal Appeal's reasoning (at [88]-[90]). The court accepted that electronic monitoring is not foolproof but found that relatively few persons subject to it have successfully absconded, and that it provides significant comfort when combined with other conditions (at [100]).

Orders Made

  • Bail granted with conditions for all three applicants.

Key Takeaways

  • Extreme remand delay, when combined with an applicant's legitimate interest in maintaining family and community connections, can satisfy the show cause test under the Bail Act 2013 (NSW), even where the underlying charges are very serious and the Crown case is strong (at [78]).

  • Under the Bail Act, delay resulting from an accused's exercise of forensic rights during committal proceedings does not automatically reduce its weight for bail purposes; courts will still consider the total period of pre-trial custody and the applicant's lack of control over listing difficulties (at [73]-[77]).

  • Where alleged offending is organised and deliberate rather than spontaneous, a court may find that effective home detention and electronic monitoring substantially reduce the risk of reoffending, because an accused who has been detected can no longer assume invisibility from authorities (at [92]-[94]).

  • A statement by law enforcement expressing concern about the resource burden of electronic monitoring on the AFP is not a permissible basis for opposing bail conditions, given the Court of Criminal Appeal's reasoning in Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232; reliance on an inconsistent and earlier single-judge decision in preference to a binding appellate ruling drew explicit criticism from the court (at [88]-[90]).

  • Admissibility of AN0M evidence obtained through Operation Ironside remains an unresolved question of some complexity, ultimately for trial and appellate courts to determine; for bail purposes, the existence of a genuine admissibility argument is a relevant feature of the overall case strength assessment, but it does not alone determine the outcome (at [41]-[49]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code (Cth)
- Telecommunication (Interception and Access) Act 1979 (Cth)

Cases
- 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