APPLICATION FOR BAIL BY KUZU
[2016] VSC 710
•22 NOVEMBER 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0163
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by KAZIM KUZU
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 22 NOVEMBER 2016 |
DATE OF RULING: | 22 NOVEMBER 2016 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY KUZU |
MEDIUM NEUTRAL CITATION: | [2016] VSC 710 |
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CRIMINAL LAW – Application for bail – Show cause situation – Charged with indictable offence while on bail – Whether an unacceptable risk – Multiple charges – Criminal damage – Unlawful assault – Contraventions of family violence intervention orders – Threats to kill – Stalking – Prior convictions – Previous commissions of indictable offences while on bail – Strong family support – Regular methylamphetamine use – Place at residential drug treatment program – Location of drug treatment centre proximate to complainant – Bail Act 1977 (Vic), s 4(1), (2) and (4)(a) – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Gould | Victoria Police |
| For the Accused | Mr S Tovey | Malkoun & Co Lawyers |
HIS HONOUR:
The applicant, Kazim Kuzu, is 31 years old, and was born on 25 March 1985 in Melbourne, Australia.
The applicant has been charged with a long list of offences, which include:
(1)4 counts of criminal damage and the unlawful assault of Ilana Berdinkoff (“Berdinkoff”), which charges are next listed for hearing on 8 December 2016.
(2)9 contraventions of a family violence final intervention order, assault with a weapon, stalking Berdinkoff, making 3 threats to kill, all of which were last returnable on 11 November 2016.
(3)4 contraventions of a family violence final intervention order and stalking Berdinkoff, all of which were also last returnable on 11 November 2016.
The applicant has been involved with illicit drug use since his teenage years. He completed his schooling until year 10, but left school at the beginning of year 11 to commence a certificate II in automotive electrical at Batman TAFE in Coburg.
Although the precise timing of his use of cannabis is not apparent on the evidence, the applicant used cannabis over an extended period of time, sometimes smoking several grams of cannabis a day. He ceased using cannabis at this level approximately 5 years ago. It was around this time that the applicant was first introduced to methylamphetamine (also known as “ice”) by friends in a social setting. His use of that drug steadily increased and became his drug of choice, rather than cannabis. By the middle of 2014, the applicant was using ice daily.
The applicant has had a stable work history until approximately 18 months ago. He held down a job for 5 years after leaving school. More recently, he has been employed in road construction as a labourer and machine operator. However, his employment ceased due to his ongoing issues with substance abuse.
The applicant has considerable support from his family. The applicant’s parents, Ali and Immigul, both migrated from Turkey in 1974 and 1975 respectively. The applicant also has 2 siblings, his sister is a psychologist and his brother works as a stock controller. Both siblings have provided letters “to whom it may concern” expressing their support and commitment to the applicant. The applicant is also emotionally and financially supported by his parents, who are both here today. They have offered a surety of $100,000, plus Ali Kuzu has undertaken to the court today to pay $28,500 to the applicant’s solicitors’ trust account (for reasons that will become apparent shortly) if bail were granted.
The applicant’s family has contacted the applicant’s previous employer and procured an offer for the applicant to be employed if bail were granted, on the strict basis that he ”remains abstinent from drug use”.
An affidavit in support, sworn by the applicant’s solicitor, states that all the applicant’s family members are aware of the charges that the applicant faces and of his addiction to ice. The family have indicated they are willing to privately fund the applicant undertaking full time residential rehabilitation for his drug issues. Indeed, the applicant’s sister, upon learning of the circumstances facing the applicant, returned to Melbourne from Brisbane “to provide full support emotionally and financially”.
The applicant’s prior criminal record includes the following:
(1)17 November 2008: possession of a weapon without exemption or approval.
(2)17 April 2015: driving whilst authorisation suspended; contravening a condition of bail; committing an indictable offence whilst on bail; possessing a controlled weapon without excuse.
(3)25 September 2015: driving whilst authorisation suspended; possession of prohibited weapon without exemption or approval; committing indictable offence whilst on bail.
(4)11 February 2016: contravening family violence final intervention order; unlawful assault.
Returning to the present charges, with respect to some of them, on 6 November 2015 the applicant was charged and released on summons. On 13 January 2016, the applicant was charged with further offences and bailed on his own undertaking. On 11 March 2016, he was the subject of further charges and released pending summons. On 13 August 2016, he was charged yet again, and released on summons. On 17 and 21 September 2016, the applicant was the subject of further charges, which include those set out in paragraph 2(2) and (3) above, and was remanded into custody where he has remained.
To date the applicant has spent 63 days in pre-sentence detention. He is currently being held at the Metropolitan Remand Centre. There was no submission put which suggested that the applicant is likely to spend a period of incarceration while awaiting trial which would exceed his likely sentence if he were found guilty of the charges he faces.
On 6 October 2016, the applicant sought bail at the Frankston Magistrates’ Court. Bail was refused on the basis the applicant failed to show cause and was an unacceptable risk of committing further offences whilst on bail.
The applicant has sought assistance for his drug related issues. He was first referred to a drug and alcohol clinician in September 2015. The clinician, Denise Abadee, has more than 20 years’ experience in the treatment of serious addiction and substance abuse. The applicant engaged regularly with Ms Abadee between approximately September 2015 and March 2016. However, from March 2016 onwards the applicant’s attendance for sessions with Ms Abadee became less frequent.
Ms Abadee gave evidence on the application. She is clearly very experienced in drug rehabilitation. She gave evidence that he has told her he no longer wishes to take drugs and that she believes the applicant when he says he is sincere about wanting to change his behaviours; however, she also frankly admitted she has to believe all of her clients, otherwise she could not do her job.
Ms Abadee prepared a report, dated 3 November 2016, which was relied upon on the application. It sets out the applicant's background and his history of consulting with her. The report speaks of the applicant's struggle with ice addiction, and the relationship between that and his misconduct.
It is unnecessary to say anything more about such details. Importantly, however, the report refers to the applicant deciding before he was remanded in custody, to commit to a residential drug rehabilitation program. This, according to the report and Ms Abadee's evidence given to the court today, demonstrated that the applicant's motivation for treatment was genuine. This position is also reflected in the conduct of the applicant since being in prison. He has informed Ms Abadee that he has been drug-free since then. Although this hearsay may have reliability issues, Ms Abadee also gave evidence of her observations of the applicant over that time. She gave evidence that his physical appearance and demeanour have improved dramatically, consistent with non-use of drugs.
Evidence was also led from the manager of Refocus Programs, a residential alcohol and drug rehabilitation program (“Refocus”), Peter Daley. The residence is located in Toorak. Mr Daley gave evidence about the nature of the program, its success rates, and its failures. He also expressed the view that if the applicant attended for only 1 month in the program, the chance of the applicant having a relapse with respect to ice use was high. He recommended a 3 month program. Ms Abadee agreed with this opinion and approach. The applicant's father also gave evidence. In short, he substantiated his position with respect to the financial support offered to his son.
The alleged victim lives in South Yarra. Although the precise distance between her residence and Refocus was not the subject of evidence, it is only a "7 minute tram trip". Further, the program at Refocus is entirely voluntary. If a participant decides to leave, there would be no attempt to restrain her or him. That said, Mr Daley said that if the applicant were to leave the residence contrary to the conditions of bail, it would be reported to the police immediately.
The proposed conditions of bail proffered by the applicant are as follows:
(1) Static residence at Refocus for the purpose of the alcohol and drug rehabilitation program at 94-96 Mathoura Road, Toorak Victoria 3142.
(2) Obey all lawful directions of staff at Refocus.
(3) Undergo random drug and alcohol testing as required by Refocus staff.
(4) Not leave Refocus premises, unless in the company of a staff member, and only to leave for the purpose of drug and alcohol treatment, or compliance with bail conditions, or for a pre-booked appointment with a medical practitioner.
(5) A surety in the amount of $100,000 be given.
(6) Not use any drug of dependence.
(7) Not use alcohol.
(8) Not drive a motor vehicle.
(9) Report daily to Prahran Police Station.
(10) Surrender his passport and not to apply for any travel documents.
(11) Not attend any points of interstate or international departure.
(12) Only use 1 mobile phone and 1 mobile phone number and provide the number to the informants.
(13) Not communicate with any prosecution witnesses other than the informants.
(14) A condition reflecting the current family violence intervention order conditions and terms.
Section 4(1) of the Bail Act 1977 (Vic) provides that any person accused of an offence and held in custody shall be granted bail. That general presumption is then subject to certain exceptions. Section 4(2)(d)(i) provides, amongst other things, that notwithstanding the generality of subs (1), a court shall refuse bail if satisfied there is an unacceptable risk that the applicant if released on bail would:
Fail to surrender himself into custody in answer to his bail;
Commit an offence whilst on bail;
Endanger the safety or welfare of members of the public; or
Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
In addition, s 4(4)(a) provides that where an accused is charged with an indictable offence that, as in this case, is alleged to have been committed while the person was at large awaiting trial for another indictable offence, then the court shall refuse bail unless the accused shows cause why his detention in custody is not justified.
In Re Asmar,[1] Maxwell P (sitting at first instance) made reference to these provisions and then stated as follows with respect to the test to be applied:
[1][2005] VSC 487, [11]-[12].
In my view, the question – the only question – for the Court on an application to which s 4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. …
This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
This approach was different to Gillard J in an earlier decision of Director of Public Prosecutions v Harika.[2] A discussion as to the differences of approach may be found in Robinson v The Queen.[3] It is unnecessary to discuss the different approaches here. As in Robinson v The Queen, I would reach the same conclusion on either approach.
[2][2001] VSC 237.
[3](2015) 47 VR 226, 234-236 [25]-[31] (Maxwell P, Redlich and Priest JJ).
In addition to the provisions set out above, on this application s 4(4)(ba) of the Bail Act is applicable. By reason of that provision, the applicant is also required to show cause as he is charged under a relevant provision of the Family Violence Protection Act 2008 (Vic) of contravening family violence intervention orders, with an offence during the course of which the applicant is alleged to have used or threatened to use violence, and also because he has been found guilty of an offence in the course of committing in which he has used or threatened to use violence against a person in the last 10 years.
The affidavit in opposition to the application provides some detail of a relationship between the applicant and Berdinkoff which lasted approximately 6 months and ended in August 2016. That evidence, which relates to the basis upon which many of the charges now being faced by the applicant are based, alleges a series of events including physical violence and threats against Berdinkoff. The evidence also suggests threats have been made against her 2 daughters, currently aged 14 and 8.
The affidavit also sets out a history of the applicant failing to comply with the family violence intervention order repeatedly.
Where s 4(2)(d)(i) is enlivened the court is required to consider the matters set out in s 4(3) when assessing whether the circumstances constitute an unacceptable risk. Those considerations that are relevant to this application are:
(1) The charges the applicant faces are serious. It was not suggested otherwise. They are concerned with violence towards persons who are vulnerable.
(2) Although the applicant's criminal record is not extensive and he obviously has a supportive home environment, his character, as reflected in his lifestyle and conduct over the last 18 months or so, leaves a lot to be desired. That said, I fully accept this is closely related to his habitual use of ice and his addiction to that substance.
(3) There is no suggestion that the Crown's case is a weak one. On the contrary, the evidence of Ms Abadee suggests the applicant's conduct at the relevant time was erratic and unpredictable, and that he was involved in violence of some form.
Having considered the evidence, as set out in the affidavits and as led today, which is in part set out above, in my view 1 of the critical facts to the outcome of this application is the location of Refocus. Although checks are made to see if participants are in residence, the last routine check each day is at 10 pm, and the next check is not until 8 am. Although there is a possibility of further checking, there is no full-time monitoring. On the arrangements foreshadowed, there would be many hours of each day where any absence of the applicant would go unnoticed.
Given the proximity of Refocus to the alleged victim and her daughters, in my view this creates an unacceptable risk that the applicant will commit an offence whilst on bail. Further, if the applicant were to commit an offence consistent with his past behaviour, it is also likely the applicant would interfere with a witness or witnesses and endanger the safety of that witness or those witnesses. The ability for him to move freely, and the proximity that exists between Refocus and the victims’ residence, which, it is alleged, is where numerous offences occurred, mean the risk is unacceptable. As indicated above, the same factors and considerations lead me to conclude that the applicant has also failed to show cause why his detention is not justified.[4]
[4]See pars 20-22 above.
It may be that an alternative location and program can be secured for the applicant. For example, from the evidence I heard this morning, there is an alternative private rehabilitation facility located at Patterson Lakes.[5] But the location of Refocus makes the risk unacceptable and precludes cause being shown, and, for that reason, and taking into account the other matters the subject of the evidence, the application is refused.
[5]Transcript 34.24-29.
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