Application for bail - Abdou
[2014] VSC 406
•25 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0110
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by Mouhamed Abdou |
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JUDGE: | KAYE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2014 |
DATE OF RULING: | 25 August 2014 |
CASE MAY BE CITED AS: | Application for bail - Abdou |
MEDIUM NEUTRAL CITATION: | [2014] VSC 406 |
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CRIMINAL LAW – Show cause situation – Unacceptable risk that not answer bail and that offend if released – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Z Broughton | Victoria Legal Aid |
| For the Respondent | Leading Senior Constable J Kiebel | Solicitor for Victoria Police |
HIS HONOUR:
On 17 July 2014 the applicant, Mouhamed Abdou, was charged by Detective Senior Constable Fry with theft, criminal damage, wilful damage and entering a private place without authorisation or excuse. He unsuccessfully applied for bail at the Broadmeadows Court on 31 July.
That application was refused on the basis that the applicant was an unacceptable risk of failing to appear and that he was also an unacceptable risk of reoffending while on bail. The applicant now applies to this court for bail.
As a result of being charged with an indictable offence that is alleged to have occurred while he was at large awaiting trial for another indictable offence, he is required to show cause why his detention in custody is not justified pursuant to s 4(4)(a) of the Bail Act 1977. In addition, he is also required to show cause, pursuant to s 4(4)(d) of the Act, because he is charged under s 30B of the Act with committing an indictable offence while on bail.
The offences that are the subject of the charges that were laid against the applicant on 17 July are alleged to have occurred at a construction site at 20 Annandale Road, Tullamarine on 2 July 2014. At that time PLM Electrics was performing electrical work at that site.
It stored its equipment and power tools inside a locked shipping container on the site. During the night the applicant, and possibly a number of unknown offenders, gained entry to the site. They cut a hole in the cyclone fencing adjacent to the shipping container. The applicant is then alleged to have used a sabre saw blade to cut through the steel lock which was on the container.
Having done so he stole a large amount of power tools and materials. The value of the power tools stolen was $12,960 and the cost of repairing the container amounts to $4,890. The applicant was arrested on 11 July when he attended the Broadmeadows police station in company with a friend who was arrested in relation to a different matter.
Police checks conducted at the time revealed that the applicant was wanted for an interview in relation to the offences committed on 2 July and also in relation to an unrelated charge of theft that is alleged to have occurred on 5 January.
It is alleged that on that date the applicant had attended at a petrol station in Mount Alexander Road, Essendon, where he stole $50 worth of fuel. After the applicant’s arrest on 11 July, further police checks revealed that he had five outstanding bench warrants and three outstanding charges and warrants issued by the Magistrates’ Courts relating to him.
As a result he was remanded in custody. Initially he was in custody at the Broadmeadows police station, but since he has been transferred first to the Metropolitan Assessment Prison and then to Port Phillip Prison where he is currently held.
In addition to the charges relating to the offence committed on 2 July, the applicant has five other sets of charges presently outstanding against him. They may be summarised as follows.
First, there are charges in which Constable Porter is the informant. On 7 April 2013 the applicant was arrested and charged with obtaining property by deception, handling and receiving or retaining stolen goods suspected of being the proceeds of crime, unsafe carriage of ammunition, uttering counterfeit money and possessing counterfeit money.
The offences are alleged to have taken place on 7 April 2013 when the applicant attended the Bunnings store in Coburg. There he purchased a lawn mower using six counterfeit $100 notes. On his arrest his vehicle was found to contain 32 clay shooting cartridges. The police also located two further counterfeit $100 notes in his vehicle. He was released on bail to appear at the Broadmeadows Court on 17 June 2013.
The second set of charges are those in which First Constable Hickey is the informant. On 16 August 2013 the applicant was arrested and charged with possession of cannabis and possession of amphetamine pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. Those substances were found in a motor vehicle in which the applicant was then asleep.
The third set of charges against the applicant are those in which Detective Senior Constable Kelso is the informant. On 23 December 2013 the applicant was arrested and charged with burglary, theft and entering a private place without authorisation.
Those offences were committed at a business in Coburg that was closed at the time. The applicant and an unknown offender are alleged to have entered the grounds of the business, forced open the office building and stolen items including a magnet pick up tool, a bronze bar, test sample and a gold coloured horseshoe key holder.
While committing the offence, the alarm system to those premises were triggered. When arrested, the police found a number of the stolen items in the possession of the applicant.
He was released on bail to attend at Broadmeadows Court on 29 January 2014. He appeared on that date and his undertaking was extended to 13 February. On that day, his undertaking was further extended to 11 April and on that day, he failed to appear and three bench warrants were issued for his arrest.
The fourth set of charges are those in which Constable O’Meara is the informant. On 6 January 2014, the applicant was arrested and charged with attempted burglary, dealing with property that is suspected proceeds of crime, using an unregistered vehicle, driving while disqualified, theft and unlawful possession of explosives. Those charges relate to an attempted entry by the applicant and a co-offender to a house in Summerhill Road, Broadmeadows at approximately 1 pm on 6 January.
It is alleged the applicant and his co-offender attempted to jemmy open the sliding door to the house, but they were disturbed by the occupant of the house, whereupon they both fled. The occupant observed the registration number of the vehicle in which the applicant made good his escape. Later that morning, he was observed driving that vehicle. At that time, his driving licence had been suspended and the vehicle he was driving was unregistered.
When the vehicle was intercepted by the police, it was searched and a number of stolen items were found in it including a circular saw, a cordless drill and assorted tapes and fireworks. He was arrested and bailed to the Heidelberg Magistrates’ Court on 26 March 2014.
The fifth set of charges are those in which Detective Senior Constable Riddell is the informant. On 20 January 2014, the applicant was arrested and charged with two counts of theft, three counts of committing an indictable offence while on bail and one count of contravening bail conditions.
It is alleged that between 31 December and 3 January 2014, a Ford Focus vehicle was stolen during the burglary of a residential premise in Rosanna. On 9 January, the applicant drove the vehicle to a petrol station where he filled it up with petrol and drove off without paying. He is alleged to have committed the same offence on the following day, 10 January, at another petrol station. Those offences were committed by the applicant who was already on two separate sets of bail.
On 20 January, the police attended at the address to which the applicant had been bailed at 37 Tooradin Avenue, Broadmeadows. He was not present and his father told police the applicant had not lived there for three to four months.
On the same day, the applicant attended at the Heidelberg police station where he was arrested and charged. He was bailed to attend the Broadmeadows Court on 18 March subject to conditions that he report to Broadmeadows Police Station three times a week and he reside at 37 Tooradin Avenue, Broadmeadows. Since being released on bail, the applicant has not reported to the police station at Broadmeadows.
Subsequent to being charged and bailed on the matters to which I have just referred, the applicant has, on three occasions, failed to attend court on the dates to which he was bailed. In the matters in which Detective Senior Constable Riddell is the informant, he failed to appear at the Broadmeadows court on 18 March 2014 and two warrants were issued for his arrest.
In relation to the matters in which Constable O’Meara is the informant, he failed to attend the Heidelberg Magistrates’ Court on 26 March and two further warrants were issued for his arrest. As I have already related, he also failed to appear at the Broadmeadows court on 11 April in relation to the matters that are the subject of the charges in which the informant is Detective Senior Constable Kelso and another warrant was issued for his arrest. As a result, after his arrest on present matters on 11 July and as a result of the five outstanding bench warrants he was remanded in custody.
At present, the proceedings in which Constable O’Meara and Detective Senior Constable Riddell are informants, are listed for a contest mention hearing at the Heidelberg Court on 2 September next. If the matter proceeds to a contest then, I am informed by Ms Broughton, who appears on behalf of the applicant, that they may be able to be dealt with at a contested hearing at that court in December.
The proceedings in which Constable Porter, Constable Hickey and Detective Senior Constable Kelso are informants, are listed for pleas at the Broadmeadows court on 5 September next. The proceeding in which Detective Senior Constable Fry is the informant, that is a matter on which the applicant was charged on 11 July, has also been listed at the Broadmeadows court on 5 September for a contest mention hearing. Ms Broughton has told me that she has been informed by the court that if the matter proceeds as a contest, it may be able to be dealt with later that month at the court.
The applicant is 22 years of age. He is a qualified butcher and has successfully completed his apprenticeship. Until two years ago he was in gainful employment and he did not have any convictions. However, he has since then acquired a methamphetamine habit which appears to have had a radical effect on his life. It would appear that the acquisition by him of that drug habit has coincided with a number of family pressures resulting from a serious back injury sustained by his father and a serious brain haemorrhage affecting his mother which has left her with acquired brain injury. The applicant has had to assume some responsibilities as a carer for his parents, and that imposed pressures on him and it would appear played a part at least, probably a significant part, in him becoming introduced to the use of the highly addictive drug methamphetamine.
Since that change in his life, the applicant has convictions arising out of three separate court appearances. On 13 February he was convicted on two charges at the Broadmeadows Court of possession of methylamphetamine. On 14 February he was convicted at the Broadmeadows court and fined on charges of using methylamphetamine, failing to answer bail, retention of stolen goods and a number of road traffic offences. On the same day at Broadmeadows Court he was convicted on charges of theft of a motor vehicle, driving while disqualified, and driving while his authorisation to drive a vehicle was suspended. He was sentenced to an aggregate term of imprisonment of one month, that term being wholly suspended under s 27 of the Sentencing Act for a period of eight months.
The reason given by the court for the imposition of that sentence is recited in the Victorian Police Criminal Records as “Poor candidate for CCO (Community Corrections Order) - attitude terrible.”
The applicant now relies on a number of grounds in support of his application for bail. In particular, this is the first time that he has been in custody; he has stable accommodation available to him at his parents’ home; his parents are able to provide a small surety for his release; he has now undergone a period of detoxification of drugs while he is in custody; and he has been assessed for an appointment at the CREDIT Bail Program and is scheduled for a mental health assessment on 27 August next.
In submissions before me, Ms Broughton put a number of matters in support of her client’s application for bail today. She acknowledged that the applicant is in a show cause situation, but she submitted that the matters to which she referred in combination were sufficient to show cause in this case.
First, she referred to the applicant’s background, the fact that his drug habit is relatively recently acquired, and that before that he was in gainful employment leading a useful life. She pointed out that the habit that he acquired was due to family pressures of a fairly serious nature. Ms Broughton particularly placed reliance on the fact that the applicant has now been assessed for the CREDIT Program, and that if he were to be released on that program, that would be a method of assuring that he remain free of his drug addiction and thus would not revert to offending while he was on bail.
Ms Broughton also pointed to the fact that the applicant has family support, and I note that three members of his family are in court today to assist.
Finally, she relied on the factor of delay. The applicant has been in custody for 46 days, and there will be some further delay before the disposition of this matter.
In response, Leading Senior Constable Kiebel, who appeared on behalf of the informants, has submitted that the applicant has not been able to show cause why his continued detention in custody is not justified. Further, he submitted he is an unacceptable risk of committing further offences while on bail. That submission is based on the fact that he has already committed the offences, in respect of which charges are pending against him, while on bail. He has a criminal history of offences of dishonesty, driving offences and drug offences. He has failed to comply with reporting conditions imposed on him, and he has failed to attend in accordance with his bail undertaking. In addition, he has not abided by bail conditions imposed on him relating to his place of residence and relating to curfew. He submitted also that the applicant is an unacceptable risk of failing to appear. He already has one conviction for failing to appear, and at the time of his arrest there were five outstanding Bench warrants in respect of him because of his failure to appear at the court on the date to which he was bailed to appear.
Leading Senior Constable Kiebel acknowledged that the CREDIT Program is in an appropriate case a useful vehicle for addressing the underlying issues which cause so many of the younger people in our society to offend, and he noted that the Victorian Police are supportive of the program. However, he pointed out that the applicant had failed when last given the opportunity to attend that program in May 2013 to take advantage of it, and he also pointed to the remarks by the magistrate when the applicant was convicted in February, noting that he was not a suitable candidate for community corrections order because of his attitude.
Leading Senior Constable Kiebel also submitted that whilst he accepted that the applicant does have good family support, nevertheless that would not be sufficient, first, to ensure that he attended at court to answer his bail, and secondly, that he remained free of offending while released on bail.
As I stated, under s 4 sub-s 4 of the Bail Act the applicant is required to show cause why his detention in custody is not justified.
In Re Asmar,[1] Maxwell P described the approach which should be taken on an application for bail in such a case. In particular, such an application requires the court to address one question; namely whether the applicant has satisfied the court that his detention in custody is not justified.
[1][2005] VSCA 487.
In considering that question the court should have regard to the four unacceptable risk factors that are specified in s 4(2)(d) of the Act. As Maxwell P stated in Asmar, those risks must be at the forefront of the court’s consideration of the justification for the applicant’s continued detention.
His Honour said at paragraph [13],
“I do not see how the court could be satisfied - as s 4(4) requires it to be - that the accused person’s detention in custody was not justified unless the court was satisfied that there was no unacceptable risk on any of those four grounds.”
It seems quite clear to me on the materials that have been put before me that it is the applicant’s drug habit that is significantly implicated in the burst of offending in which he has so recently indulged. It is acknowledged by Leading Senior Constable Kiebel, and it is acknowledged by this court, that the CREDIT Bail Program is a beneficial mechanism for addressing such problems.
I consider that bail can and should be used in an appropriate case as a constructive mechanism by which to meet the problems which drug use create in terms of criminal offending. That is particularly so given what has been properly described as the epidemic of the use of methylamphetamine that is inflicting our community and which is causing ever increasing problems in terms of policing and law enforcement, and in terms of mental health.
Nevertheless, those matters should not obscure the fact that in a case such as this the applicant must show cause why his detention in custody is no longer justified, and in particular he must be able to establish that he must be able to satisfy me that if he were to be released he would not be an unacceptable risk of failing to appear to answer his bail and secondly, that he would not be an unacceptable risk of offending while on bail.
In respect of both of those matters quite clearly the facts of his case which I have outlined to date do give strong reason of concern that there are substantial risks that the applicant might fail to answer his bail and might reoffend were I to release him on bail.
In relation to the first matter, that is whether the applicant is an unacceptable risk of failing to appear on bail, the history that I have recited in some detail establishes that on no less than three occasions the applicant has failed to answer his bail, namely, at Broadmeadows Court on 18 March, at Heidelberg Court on 26 March and at Broadmeadows Court on 11 April.
It might be one matter if the applicant had simply overlooked attending on one date, but to have done it on three separate dates in that way raises a grave concern as to whether the applicant would adhere to his bail terms if I were to release him today.
That is a significant matter and it is added to the two other matters. First, the applicant, as well as not appearing on those days, has also failed to abide by other conditions of his bail, by not reoffending, by living at the address to which he was bailed, and by reporting to the police station.
Those matters indicate that the applicant to date has not demonstrated any respect for the terms of his bail. My concerns in this regard are compounded by the fact that he already does have a previous conviction for failing to appear. All those matters do give rise to an undeniable substantial concern that the applicant, if released, would be a substantial risk of not attending to answer his bail.
The matters which Ms Broughton has so ably put to me are relevant and are persuasive. My concerns I think would be somewhat allayed if he were able to successfully undertake the CREDIT program and thus remove the root cause of his offending and what would seem to be his entire disregard for bail conditions and for the legal obligations that are imposed on him.
However I am concerned that in the past he has already not taken advantage of one opportunity provided to him in May last year and I also take into account the concerns of the court when he was sentenced in February this year.
The applicant has undergone a period of detoxification which no doubt would assist. Nevertheless my concerns are such, particularly arising from his history while on bail, that I am driven to the conclusion that if I were to release him today that there would be an unacceptable risk that he would not answer his bail.
In addition, there is a very substantial risk that if the applicant were released that he might revert to his offending patterns and thus that he would offend while on bail. He has already done so when released on bail. I note that he intends to plead guilty to the Hickey and Kelso matters. At the time he committed those offences he was already on bail on the Porter matter. The Hickey matters are not particularly serious as they simply involve the possession of small amounts of drugs. Nevertheless the combined weight of those matters do indicate what is indisputably a pattern of offending while already on bail.
If I were to add to that, the other matters on which he is charged, but to which he has not yet pleaded guilty, then my concerns would become greater. The concern that I do have is that it would appear from the background facts, the applicant, over the last year, had been involved in what was simply a spree of offending which did not seem to be at all deterred by the fact that he had, on a number of occasions, been arrested by the police.
During that time, he failed, as I have stated, to really have any regard for the seriousness of the bail conditions that were imposed on him and it would appear in the past that bail conditions have not managed to deter him from offending. In addition, he does have previous convictions. All those matters must be weighed up by me and taken into account in assessing the level of risk of him offending.
Once again, I do accept that if he could undertake successfully the CREDIT program, then that would allay some of those concerns. However, that is a matter about which I have some reservations because I have no assurance that if the applicant were released on bail, that he would properly undertake that program, abide by the terms of his bail and not offend. I am therefore reluctantly driven to the inexorable conclusion that the applicant, if he were released, would be an unacceptable risk, both of not answering his bail and of offending.
I say that reluctantly because if I had some assurance that his release on the CREDIT program would work, I would not hesitate to do that. It is not only in his interest and his family’s interest, but also in the community’s interest that he be weaned off his drug habit. I do take into account the fact that there might be some delay, particularly in dealing with the Heidelberg matters, but at present, that delay does not seem to be untoward and certainly does not outweigh the risks that I have concluded do exist in this case.
For those reasons, I am not persuaded there is not an unacceptable risk, and indeed, I consider there is an unacceptable risk that, if I were to release the applicant on bail, he would re-offend and would not answer his bail.
In conclusion, I do say this to you, Mr Abdou. Notwithstanding the fact I have rejected your bail application, I encourage you as much as I can that ultimately, you must avail yourself of drug rehabilitation services, use the well-meaning support of your family and remove yourself from your problem and have it properly treated.
It is the experience of this court that we have seen so many tragedies being caused by the abuse of methylamphetamine. It has ruined lives, it has ruined decent people. You owe it to yourself and your family to try to address it.
Nevertheless, for the reasons I have stated, I do reject the application for bail made to me this day.
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