Director of Public Prosecutions v Mikael
[2020] VSC 492
•12 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0136
| IN THE MATTER of s 18A of the Bail Act 1977 |
| and |
| IN THE MATTER of an appeal by the Director of Public Prosecutions against an order granting bail to Steven MIKAEL |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2020 |
DATE OF JUDGMENT: | 12 August 2020 |
CASE MAY BE CITED AS: | DPP v Mikael |
MEDIUM NEUTRAL CITATION: | [2020] VSC 492 |
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CRIMINAL LAW – Bail – Director’s appeal against grant of bail from County Court – Charges of attempted armed robbery, assault with instrument, intentionally damaging property, commit an indictable offence whilst on bail, handling stolen goods and attempted aggravated carjacking – Whether grant of bail was ‘reasonably open’ to Judge – Appeal dismissed - Bail Act1977 s 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Lewis | Office of Public Prosecutions |
| For the Respondent | Mr S. Tovey | Fayman Lawyers |
HIS HONOUR:
Introduction
Pursuant to s 18A of the Bail Act 1977 (‘the Act’), the Director of Public Prosecutions (‘the applicant’) appeals an order of the County Court made on 26 May 2020 granting bail to Steven Mikael (‘the respondent’).
The ground of appeal is that the order of the lower court contravened the Act, accordingly:
(a) That pursuant to s 4A of the Act, a decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. On the materials before the Court, the Respondent failed to discharge the onus of satisfying the Court of exceptional circumstances.
(b) That on the material before the Court, the learned judge should have found that there was an unacceptable risk pursuant to ss 4D and 4E that the respondent, if released on bail would:
(i) Endanger the safety or welfare of any person;
(ii) Commit an offence whilst on bail; or
(iii) Fail to surrender into custody in accordance with the conditions of bail.
The Court received a Notice of Appeal dated 20 June 2020, along with the supporting affidavit of Rachel Marques dated 9 June 2020, solicitor at the Office of Public prosecutions. A copy of the transcript of hearing in the County Court and reasons for that decision were also provided.
Background
On 15 November 2018, the respondent was arrested and charged with attempted armed robbery, attempted aggravated carjacking, assault with an instrument, criminal damage, committing an indictable offence whilst on bail, and handling stolen goods. He was remanded into custody the same day.
The charges proceeded to a contested committal hearing in the Magistrates’ Court of Victoria on 4 September 2019. At the conclusion of that hearing, the respondent was committed to stand trial in the County Court of Victoria.[1] The respondent did not make an application for bail. A five-day trial was set down to commence in the County Court on 28 September 2020.
[1]The respondent indicated that he would be pleading guilty to the charges of criminal damage and committing an indictable offence while on bail. For the balance of the charges, he indicated an intention to plead not guilty.
On 16 March 2020, the Supreme Court and the County Court suspended all new jury trials in light of public health advice surrounding the global COVID-19 pandemic. This precautionary decision was made after consideration of the latest expert health and government advice and recognises community concerns about attending court in large groups.
On 26 March 2020, the respondent applied for a grant of bail from the County Court. The judge who heard the application (‘the primary judge’) granted bail on the respondent’s own undertaking, and imposed conditions that he:
(a) Report to the Broadmeadows police station every Monday, Wednesday and Friday between the hours of 6.00am and 9.00pm.
(b) Reside at [the address redacted].
(c) Not leave his place of residence between the hours of 9.00pm and 6.00am each day unless in the company of Khamy Mikael or Michael Mikael and must attend the front door upon police request.
(d) Not use a drug of dependence.
(e) Attend for any assessment or counselling as directed by the CISP remand outreach program (CROP).
(f) Attend an intake and comprehensive assessment with Odyssey House Victoria on 27 May 2020 and to attend for all treatment and counselling as directed.
The foregoing orders made by the County Court judge are the subject of this appeal.
The alleged offending
On 15 November 2018 at approximately 1.40am, Hamze Haddara (‘the victim’) stopped his vehicle on the side of Malmsbury Drive in Meadow Heights and spoke to his girlfriend on the phone. It is alleged that the respondent, who was driving another car, pulled over in front of the victim’s vehicle, left his own vehicle, and approached the driver’s side window of the victim’s vehicle. It is alleged that he was carrying a metal bar.
The prosecution case is that the respondent raised the metal bar above his head, demanding that the victim exit the vehicle, and to produce his car keys. In response, the victim wound his window down, at which time the respondent leaned into the vehicle and attempted to retrieve the car keys. However, the victim pushed the respondent’s head out of the vehicle and quickly drove away. A short time later, the victim flagged down a nearby police vehicle and reported the aforementioned events.
After the victim drove away, it is alleged that the respondent approached another vehicle in Malmsbury Drive and smashed its front and rear windows with a metal bar. It is not stated whether anyone was in the vehicle at the time. These acts were observed by a witness. The same police officers with whom the victim had spoken to heard the sound of the windows breaking and approached the scene. The respondent was observed in the vicinity of the scene, and was identified by the victim as the perpetrator of the earlier events.
The respondent was arrested and transported to the Broadmeadows Police Station for interview. During the interview, he admitted to having spoken with the victim, although stated that this was in the context of asking the victim why he was stalking his cousin’s house. He stated that the victim scratched him in response and denied trying to hit him with a metal bar. He also denied causing damage to the second vehicle. At the conclusion of the interview, the respondent was charged and remanded in custody.
A few days earlier, on 13 November 2018, the respondent had been arrested and bailed to attend the Broadmeadows Magistrates’ Court on 19 November 2018. He is alleged to have breached a Personal Safety Intervention Order. As such, it is alleged that the respondent committed the present charges two days after having been granted bail, thereby committing an indictable offence whilst on bail.
Further, police alleged in the remand summary pertaining to the present charges that the respondent committed these latest offences within two months of having been released from serving a previously imposed sentence of nine months’ imprisonment for offences of assault and threatening to kill another person.
The applicable law
Section 18A(1)(a) of the Act provides that the Director of Public Prosecutions may appeal to this Court against an order granting bail if satisfied that the conditions of bail are insufficient, or that the decision to grant bail contravenes the Act. The Director must be satisfied that it is in the public interest to do so.[2]
[2]The Act, s 18A(1)(b).
If the Court finds that a different order should have been made, the original order granting bail must be set aside.[3] In this situation, and without limiting the powers of the Court, a fresh hearing in regard to bail is to be conducted.[4]
[3]The Act, s 18A(6).
[4]The Act, s 18A(6).
The principles governing appeals under s 18A are set out in DPP (Cth) v Barbaro.[5] In that case, the Court held:
As Forrest J noted, the nature of the appeal was explained by the Full Court in Beljajev v DPP (Vic) and DPP (Cth):[6]
It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate courts have frequently refused to interfere with a primary judge’s decision on a matter of practice and procedure.
[5](2009) 20 VR 717.
[6]Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991.
These principles have been consistently applied in determining appeals under s 18A.
In Fernandez v Director of Public Prosecutions,[7] Winneke P said:
It is clear from these authorities – as the court noted in Beljajev – that the principles which the court applies in deciding a “director’s appeal” against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the director pursuant to s 18A of the Bail Act. However, as was pointed out by the court in Beljajev, the appeal which is brought to the court by virtue of s 18A is an appeal against orders made “in a matter of practice and procedure”, and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders.[8]
[7](2002) 5 VR 374.
[8]Ibid 719-20 [9]-[11].
In summarising these principles in the matter of DPP v Molinaro (‘Molinaro’),[9] Weinberg JA stated:
It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.[10]
[9][2017] VSC 624.
[10]Ibid [7].
In Molinaro, it was submitted that the relevant test was whether the decision of the primary decision maker was ‘reasonably open’. Weinberg JA questioned whether this construction set too high an onus for the applicant to establish, describing it as ‘almost akin to having to establish ‘Wednesbury unreasonableness’.[11] However, given that the test was relied upon by the respondent in that matter, and unchallenged by the applicant, his Honour found it appropriate to determine the appeal in accordance with such test.[12]
[11]Ibid [8].
[12]Ibid.
In DPP v Didulica,[13] Coghlan J referred to Weinberg JA’s comments in Molinaro and opined that it was a matter for the Director whether s 18A appeals should be formulated in such terms.[14] Taylor J also cited Weinberg JA’s comments in DPP v Ghazi (‘Ghazi’),[15] but noted that the grounds of appeal in that case were not formulated in those same terms. Ghazi proceeded on the basis that the appeal should be determined in accordance with the principles in House v R,[16] as referred to in Beljajev[17] and Fernandez,[18] per the submissions of parties in that case.
[13][2019] VSC 432.
[14]Ibid [27].
[15][2019] VSC 619.
[16](1936) 55 CLR 499; [1936] HCA 40.
[17]Unreported, Supreme Court of Victoria Appeal Division, Young CH, Crockett and Ashley JJ, 8 August 1991.
[18][2002] VSCA 115; (2002) 5 VR 374.
In the event that I find an error in the decision of the lower court, I must set aside the order granting bail and conduct a fresh hearing.[19] Alternatively, if no error is found, the appeal must be dismissed.
[19]The Act, s 18A(6).
Fresh hearing
If the order of the primary judge is set aside, the respondent must satisfy this Court that exceptional circumstances exist to justify a grant of bail in a fresh hearing,[20] as he is charged with attempted carjacking, being a Schedule 1 Offence under the Act.[21] In determining whether exceptional circumstances exist, the Court must have regard to the relevant surrounding circumstances prescribed in s 3AAA.[22]
[20]The Act, ss 4A(1A)-(2).
[21]The Act, Sch 1, items 5 and 12. See also s 4AA(1).
[22]The Act, s 4A(3).
If satisfied as to the existence of exceptional circumstances, the Court is required to consider the unacceptable risk test under s 4D of the Act.[23] The prosecution bears the burden of satisfying the Court as to the existence of a risk mentioned in s 4E(1)(a), and, further, that the risk is unacceptable. The Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[24]
[23]The Act, ss 4A(4) and 4E(1)(a).
[24]The Act, ss 4E(1) and (3).
Finally, the Court is required to interpret and apply the Act having regard to the guiding principles set out in s 1B(1).
It is to be noted that the primary judge indicated these provisions were applied in determining the respondent’s application for bail.
Meaning of exceptional circumstances
The meaning of exceptional circumstances, while not defined in the Act, has been well rehearsed in this Court. In the case of DPP v Muhaidat,[25] Kaye J stated:
Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail.[26]
[25][2004] VSC 17.
[26]Ibid [13].
In the matter of Re Brown,[27] Lasry J summarised the relevant principles as follows:
In order to be ‘exceptional’, it has been accepted that:
The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[28]
[27][2019] VSC 751.
[28]Ibid [65].
It is clear that the primary judge acted correctly in expressly concluding the exceptional circumstances test applied in the respondent’s application for bail.
The respondent
The respondent was born on 27 July 1981 and is currently 38 years old. He was born in Iraq, where he was exposed to widespread violence, killings and bombings. At the age of 12 or 13, the respondent fled to Turkey with his family. He was separated from them and spent two years living in Greece, at times on the streets, before being sponsored by his family to move to Australia.
Once in Australia, the respondent completed high school and went on to work as a nightclub doorman and bricklayer. He also worked for his father, who is a builder, in the family company. At some point, the respondent developed a dependency on alcohol and illicit substances.
The respondent has a significant criminal history said to be intrinsically linked to his drug dependency. This history spans between 1999 and 2018 and includes offences of dishonesty, animal cruelty, significant instances of violence (including a conviction for manslaughter in 2008), hindering and resisting police, disobeying and assaulting police, criminal damage, possessing a dangerous article, using and cultivating illicit drugs, using a carriage service to harass, threat to kill, threat to inflict serious injury, and driving offences. In addition, the respondent’s criminal record includes the following bail offences and breaches of court orders:
·fail to answer bail (14/02/2001 and 15/03/2018);
·breach of intensive correction order (01/06/2001);
·breach of community based order (01/06/2001);
·breach of suspended sentence order (26/10/2004);
·contravene final personal safety intervention order (18/07/2016);
·persistent contravention of family violence notice/order (‘FVIO’) (18/07/2016);
·contravene FVIO (intending harm/fear) (18/07/2016);
·contravene community correction order (18/07/2016 and 15/03/2018);
·commit an indictable offence while on bail (15/03/2018); and
·contravene FVIO (15/03/2018).
As above, the respondent’s most recent conviction resulted in a sentence of 9 months’ imprisonment for recklessly causing injury, making a threat to kill and criminal damage. It is also noted that the respondent was found guilty on 29 March 2012 for offences which bear similar characteristics to the present charges. He was sentenced to 2 years’ imprisonment, with a non-parole period of 15 months.
Needless to say, the respondent has a very poor criminal record. However, it is clear that his history was placed before the primary judge, and was noted in her Honour’s conclusions as having been taken into account.
Arguments before the primary judge
The respondent’s arguments
The respondent relied on a combination of factors to establish exceptional circumstances, including undue delay, hardship in custody resulting from the impact of the COVID-19 pandemic, his efforts at rehabilitation; suitable and stable accommodation, ties to the jurisdiction; and the availability of ongoing treatment in the community for his drug and alcohol issues.
As to delay, the respondent submitted he had been on remand since 15 November 2018. It was noted that the committal hearing had been adjourned on two occasions because a magistrate was unavailable to hear the proceedings, and was finally heard and determined on 4 September 2019.
Further, it was argued that the trial, which was listed for a five day hearing on 28 September 2020, would soon be vacated due to the impact of COVID-19 restrictions. As a result of the State’s court operations being ‘in a state of flux’, it was submitted to the primary judge that it was possible he could spend up to three years on remand if bail was not granted.
Accordingly, it was submitted the additional delay due to the impact of the COVID-19 was particularly significant in that it could result in the respondent spending more time on remand than he would by way of a custodial sentence (or, at least any non-parole period of a custodial sentence) if found guilty of the charges against him. The respondent did not accept that he will inevitably receive a longer term of imprisonment which would outweigh the period on remand, rejecting that the allegations were a serious example of attempted aggravated carjacking.
It is to be noted that the respondent made no attempt to argue against the strength of the prosecution case. It was submitted that the current health crisis impacted on the his time in custody, with the cessation of all personal visits and educational programs. Prior to this, he had been actively engaged in prison rehabilitative programs. The primary judge heard evidence that the respondent’s out-of-cell time was limited to 2 hours and 15 minutes per day.
In addition, it was submitted that the respondent had suitable accommodation available to him with his mother and his brother. He also had an offer of employment in the family business under the supervision of his brother. Further, arrangements had been made for him to be assessed by both the Court Integrated Services Program (‘CISP’) Remand Outreach Program and Odyssey House to continue and bolster his rehabilitation efforts.
Before the primary judge, the respondent did not seek to diminish the significance of his criminal record, but submitted that his treatment in custody, together with the supports available to him in the community, would moderate the risk to an acceptable level. The respondent contended that any residual risk could be ameliorated by the imposition of strict bail conditions.
The applicant’s arguments
Before the primary judge, the applicant argued that the prosecution case was strong. It was noted that the victim flagged down police at the earliest opportunity, and further, that the respondent was identified and apprehended in the vicinity shortly after.
While the applicant conceded the trial would inevitably be delayed, it was submitted that any period on remand was unlikely to exceed a sentence that might be imposed if the respondent was found guilty. This was said to be particularly so in the context of his criminal history and the seriousness of the alleged offending.
Notwithstanding the availability of employment and strong family supports, the applicant argued that those protective factors were longstanding and had not previously deterred him from engaging in criminal activity. Further, some of the respondent’s family members possess criminal records, including for offences of violence and dishonesty. Moreover, it was noted that the respondent’s proposed employer in the family business was alleged to have been the catalyst for other charges the respondent was facing, and on bail for, at the time of the present alleged offending.
For these reasons, the applicant contended that the respondent had failed to demonstrate the existence of exceptional circumstances that justified the grant of bail.
As to unacceptable risk, it was submitted the respondent was an unacceptable risk of committing an offence whilst on bail, particularly relying on his significant criminal history as evidence of his inability to comply with court orders or remain out of custody for any meaningful period of time.
The decision of the primary judge
The primary judge found the issue of delay to be the most significant of the respondent’s submissions. It was not accepted that, if the respondent was found guilty of the charges, a custodial sentence would ‘far outweigh’ the time spent on remand.
Further, the judge noted that his period on remand was more onerous due to the global pandemic and found this was likely to continue into the foreseeable future.
The judge also concluded the attempted aggravated carjacking was not the most serious instance of this kind of offending, though noted its maximum penalty of 20 years’ imprisonment. As to the strength of the prosecution case, the judge concluded that neither counsel had submitted that the case was weak, and that the evidence pointed to a ‘relatively strong case’. The judge expressly noted the respondent’s significant criminal history for both drugs and violence offences, his instances of failing to appear on bail, and breaches of court orders, with particular note to his lack of time spent outside a custodial setting.
In the respondent’s favour, the judge accepted the steps he had taken to rehabilitate himself, and noted the availability for those steps to continue in the community.
Overall, the judge was satisfied that any risks alleged by the applicant could be ameliorated by the imposition of stringent conditions. At both steps, the judge indicated that she had taken into account all of the surrounding circumstances, as required. The judge concluded:
Having carefully considered matters before me in support of the applicant, given the combination of circumstances the applicant has identified, particularly the period of delay but also coupled with the steps that he has taken to rehabilitate himself, and plans or arrangements that have been made within the community to deal with his drug and alcohol issues, I am satisfied that he has shown exceptional circumstances that justify the grant of bail. In coming to that conclusion I have taken into account all the surrounding circumstances required.
Furthermore, I am satisfied that any unacceptable risks that are suggested to exist can be ameliorated by very stringent conditions on the grant of bail. In this regard, I have again taken into account all the surrounding circumstances.
For these reasons, the judge granted bail to the respondent, on the conditions stated above.
Legal principles on the appeal
Both parties provided written submissions as to the interpretation of s 19 of the Act, and the test to be applied in the determination of this appeal. The applicant referred to the authorities above and submitted that subsequent cases have not questioned the soundness of those authorities. Ultimately, it was submitted that the reasoning in Beljajev was ‘logical and in keeping with authority that parties to s 18A applications began employing the term (‘reasonably open’) when seeking to enunciate the applicable test in circumstances where specific error was not alleged in relation to the impugned decision to grant bail’. The applicant further submitted that, ‘If, as Beljajev concludes, the same principles apply mutatis mutandis, to both sentence appeals and 18A appeals, then the test, expressed in those terms, is appropriate’.
The applicant acknowledged that the grounds of appeal in this matter do not use the term ‘reasonably open’, but rather assert that the decision of the primary judge contravened the Act. That said, it was conceded that the appeal is not put on the basis that it could be demonstrated how or why the judge fell into error, but rather that the miscarriage was manifest having regard to all the material placed before the Court. Accordingly it was submitted that the appropriate test is whether the decision made in each of the two instances specified was reasonably open to the judge.
The respondent referred to the same authorities above, as well as the decision of Sun.[29] It was noted that the above previously decided cases applied the relevant test as being whether the relevant bail decisions were ‘reasonably open’. As such, it was submitted that the questions to be answered on this appeal were whether it was reasonably open for the primary judge to find that the respondent had demonstrated exceptional circumstances, and whether it was reasonably open for the judge to conclude that the respondent did not represent an unacceptable risk of committing an offence whilst on bail.
[29][2020] VSC 399.
Ultimately there was little, if any, controversy between the parties on the approach to be taken in this appeal. Given that the applicant did not seek to identify errors of fact or law by the primary judge, and that the approach to be taken was agreed as between the parties, I propose to consider whether or not the decision of the primary judge was ‘reasonably open’.
Arguments on appeal
The applicant’s arguments
The applicant submitted this Court should set aside the order granting bail on the bases set out above. While noting the respondent had spent just over 18 months on remand at the time of the application for bail before the judge, it was not conceded that it might take up to three years before a trial, pointing to the uncertainty before the primary judge as to the eventual trial date.
However, noting that the current trial date upon which the primary judge acted was 28 September 2020, it was conceded before me that it is ‘highly unlikely’ the trial will commence on that date in the current circumstances. It was submitted that should there be further delay from this date the respondent could make a further application for bail. Ultimately, it was submitted that the delay considered by the primary judge did not amount to exceptional circumstances as there was no realistic trial date known at that time.
The applicant submitted the alleged offending is a serious offence and that the prosecution case is strong. It was submitted that by reaching for the car keys and demanding the victim get out of the car, it can be inferred that the respondent was attempting to take away the victim’s car rather than simply attempting to stop it from moving. While noting that the alleged offending was not the most serious of its kind, it was submitted that the use of a weapon still renders it a serious example of the offence. As such, the applicant contended that a combination of these factors, as well as the respondent’s extensive criminal history, meant that the suggestion that his time in custody might well exceed any sentence imposed, should be rejected. Particular note was made of his prior conviction of manslaughter, and the lengthy sentence imposed by this Court in 2008.
In addition to the respondent’s significant and relevant criminal history, the applicant pointed to instances of previous non-compliance with bail conditions, with particular reference to the bail order he is alleged to have breached by the present offending. In this regard, the applicant noted the respondent’s ‘constant flow of offending’ over a number of years.
The applicant also addressed the impact on the respondent of the COVID-19 restrictions in the Victorian prison system. It was submitted that the whole community is suffering hardship arising from the pandemic and that prison authorities have taken steps to alleviate isolation by changing routines and systems so that hardship is ameliorated at least to some extent.
Further, the applicant submitted that matters going to the respondent’s planned place of residence, proposed employment, community ties and treatment opportunities were relevant but unremarkable, and did not significantly contribute to a finding of exceptional circumstances by the judge. It was argued that the latter aspect had to be considered in light of his poor criminal history and poor response to opportunities offered to him previously.
As to unacceptable risk factors, the applicant adopted many of the arguments made in respect of exceptional circumstances and the submissions made to the primary judge. Reference was made to the Remand Report prepared for the purposes of the bail application, which emphasised the demonstrated inability of the respondent to remain out of custody. As such, it was submitted that the primary judge’s conclusion that the respondent did not pose an unacceptable risk test was not reasonably open.
Lastly, the applicant also reminded the Court that in the determination of the application, the effect of s 1A of the Act was required to be considered by the judge.
The respondent’s arguments
The respondent agreed that the issues to be addressed on this appeal are whether it was reasonably open for the primary judge to find that the respondent had demonstrated exceptional reasons, and whether it was reasonably open for the primary judge to conclude that he did not represent an unacceptable risk of committing an offence while on bail.
The respondent submitted it is significant that the applicant has not sought to demonstrate that the primary judge made an error of fact or law. While acknowledging that such error is not required to be established, it was submitted the inability to do this is at least capable of contributing to the conclusion that the primary judge’s decision was reasonably open for her to make.
Examining the primary judge’s reasons, reliance was placed on the aspect of delay and the conclusion reached that the trial had been delayed by another nine months, and that the respondent would not inevitably receive a sentence exceeding his time spent on remand. It was argued that both conclusions remain unchallenged on the appeal. The respondent further submitted that the judge’s conclusion that the alleged offending was not the most serious example of its kind is correct, supporting the submission that the length of the sentence which may be imposed will not necessarily be more than the time already spent on remand.
It was acknowledged the strength of the prosecution case was not doubted by the judge, as submissions were not advanced to the contrary. It was submitted before the primary judge that, in respect of the two most serious allegations, there were triable issues, with the claim to a viable defence. It may be concluded that gaining possession of the victim’s vehicle and stealing it appears to underpin both of the main charges, and that the triable issue is whether the respondent intended to take the vehicle as distinct from immobilising it and confronting the victim.
The respondent submitted that the applicant has failed to demonstrate that the discretion of the judge miscarried. It was contended that the reasons of the primary judge make clear she properly regarded the exceptional circumstances test and considered all of the relevant surrounding circumstances.
Further, the respondent contended it was reasonably open for the judge to be satisfied that any unacceptable risk could be ameliorated with the imposition of strict bail conditions.
It was contended that, given the persuasive material before the judge, it cannot be said that the finding of exceptional circumstances and that the level of risk was acceptable were such that the judge, acting reasonably, could not have made them. It was submitted that the judge gave careful consideration to factors including the respondent’s steps towards rehabilitation, the impact of delay, the availability of community treatment, his lengthy criminal history and the seriousness of the alleged offending.
The respondent further argued there was an undisturbed factual substratum of circumstances before the judge which included his extensive efforts of rehabilitation, counselling sessions, stable accommodation, clean urine screens and employment which, in combination, demonstrated it was reasonably open to the judge to conclude that exceptional circumstances existed and that any risk could be made acceptable.
The respondent further submitted that the findings by the primary judge were entirely appropriate in all the circumstances, such that the appeal should be dismissed. It was submitted that even if the Court was to form the view it would not have granted bail, this would not be sufficient to interfere with the decision of the primary judge, unless it considered that there had been an error so manifest, obvious or unreasonable which justified the order granting bail to be set aside.
Finally, the respondent relied on the principle that, in an appeal such as the present one, this Court should be reluctant to interfere with the primary decision. It was submitted that the experienced judge had the benefit of written and oral submissions, and provided carefully constructed reasons for the decision to grant bail.
Conclusions
Having carefully considered the primary judge’s reasons, and the evidence and submissions relied on, I am of the opinion the applicant has not established that the decision to grant bail was not reasonably open.
It is evident that the judge considered the relevant surrounding circumstances brought to the court’s attention and was aware of the relevant requirements under the Act.
While the primary judge was not able to assess the precise period of delay, it was concluded that the length of time that the respondent would be on remand was the most significant issue in his favour. The judge referred to the further delay of nine months caused by the COVID-19 pandemic restrictions and noted the prospect that he would have spent 22 months on remand if he remained in custody until the then currently listed trial date. However, it was clear the judge was satisfied that in the event of bail not being granted, the likely delay would take the respondent’s period on remand beyond that 22 month period to somewhere between two to three years. Further, the judge took into account the conditions the respondent would likely experience on remand. The judge agreed with the applicant that the prosecution case was prima facie strong, although noting the respondent had not attempted to persuade her otherwise. The judge noted that neither party had submitted the prosecution case was weak.
The judge considered the alleged offending to not be the most serious example of its kind, but noted the significant maximum penalty for the offence. Nonetheless, the judge concluded that the respondent would not inevitably receive a sentence which would outweigh any period on remand. I agree with that conclusion.
The judge also considered the respondent’s extensive criminal history and expressed concern that he had spent little time outside custody over the years. However, in the respondent’s favour, the judge regarded the availability of accommodation, employment and treatment in the community as significant. It was accepted the respondent had taken steps towards rehabilitation in custody, and was attempting to continue these efforts in the community. To this end, the judge observed the existence of an apparent correlation between his history of substance use and previous offending.
After specifically referring to the material put forward by both parties, the judge indicated she had “carefully considered matters.…in support of the application”, and was satisfied that the respondent had shown exceptional circumstances.
The judge went on to consider the relevant risk factors brought to her attention, and in my opinion, addressed them in an appropriate way. Her Honour’s careful consideration of the issues are demonstrated by her reasons annexed to this judgment.
Based on the authorities referred to above, it is not essential that the applicant be able to show an ‘error of law in the narrow sense’. It is sufficient if it can be shown that ‘in all the circumstances, the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made’.[30] Not only am I unable to conclude that the primary judge fell into error, I am unconvinced that the decision granting bail was manifestly wrong.
[30]DPP (Cth) v Barbaro (2009) 20 VR 717 [10].
In reaching my conclusion, I note the principle that an appellate court hearing an appeal under s 18A of the Act should be reluctant to intervene or disturb the conclusion of a primary judge. A bail decision, by its very nature, is not a final decision and may be revoked at any time. Secondly, it is a matter of practice and procedure.As discussed in Barbaro, “These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interfere with the order appealed from”.[31]
[31][2009] VSCA 26.
Accordingly, I am not persuaded that ‘the discretion of the primary judge has miscarried’ and ‘that a different order should have been made’.[32] In my opinion, the discretion to grant the respondent bail was reasonably open on the evidence before the primary judge. In these circumstances, the applicant’s appeal is dismissed.
[32]Fernandez v DPP (2002) 5 VR 374.
Annexure 1[33]
[33]This Annexure replicates the primary judge’s judgement reasons provided to the Court.
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01784
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Steven MIKAEL |
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| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 May 2020 |
| DATE OF JUDGMENT: | 26 May 2020 |
| CASE MAY BE CITED AS: | Re Mikael |
| MEDIUM NEUTRAL CITATION: | [2020] VCC |
REASONS FOR JUDGMENT
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Subject: Application for bail, Bail granted
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Malik | Valos Black |
| For the Respondent | Mr P. Teo | OPP |
HER HONOUR:
1The applicant, Steven Mikael applies for bail in respect of charges alleged to have occurred on 15 November 2018. The applicant has been charged with the following offences: Attempted armed robbery; Attempted carjacking; unlawful assault with a weapon; Criminal damage; committing an indictable offence whilst on bail and handling stolen goods.
2It is agreed that I must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail.
Procedural history
3There are in total six charges relating to events alleged to have occurred on or about 15 November 2018. The applicant has been in custody since his arrest on that date – his trial is listed to commence on 28 September 2020. A contested committal was conducted on 4 September 2019 and he pleaded guilty to Charges 1,2,5 and 6 and not guilty to Charges 3 and 4.
The Crown case
4I was provided with the police summary for this offending. The applicant’s offending relates to an incident in the early hours of the morning where it is alleged that he approached the victim, who was sitting in his BMW. It is alleged that the applicant who was driving a stolen Mercedes, approached the victim by blocking off the BMW, then approached the driver's window with a pole demanding the keys to the BMW. The victim was able to push him away and drove off, coincidentally finding some police nearby. The applicant drove past and was soon arrested.
The applicant
5The applicant is aged 38. Other matters relevant to his personal history set out in the submissions filed by the defence.
6There was evidence before me that the applicant has accommodation available and employment, and also support in the community in relation to drug and alcohol issues.
7The applicant has an extensive criminal history relating to violent and drug crimes, and also breaching orders or court orders including parole.
The law
8This application for bail was filed on 7 May 2020. As matters currently stand, I understand the 28 September 2020 trial date will be vacated, and that in accordance with the most recent protocol, the trial was unlikely to be relisted to commence until at least mid-2021.
9The applicant has been charged with a Schedule 1 offence (attempted aggravated carjacking) and therefore must demonstrate exceptional circumstances that justify the granting of bail. The burden of satisfying the court that exceptional circumstances exist rests with the applicant. In considering whether exceptional circumstances exist, the court must take into account the ‘surrounding circumstances’ as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
10In order to reach the threshold of exceptional, the circumstances relied upon must be such as to take a case out of the normal so as to justify the admission of the applicant to bail. It is authoritatively established that such can be established by a single exceptional circumstance or through a combination of factors including personal factors to the applicant, the strength of the prosecution case, delay or other unusual features.
11The application is opposed by the prosecution and did not concede that exceptional circumstances had been established.
12If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) then requires the court to apply the ‘unacceptable risk test’ or to move to Step 2 of the bail process.
13Pursuant to s 4E(1)(a) of the Act, the court must refuse bail if satisfied that there is an unacceptable risk that an applicant would, if released on bail relevant to this matter:
·endanger the safety or welfare of any person; or
·commit an offence while on bail.
14The Court must again consider the surrounding circumstances and whether any conditions may be imposed to mitigate that risk so that it is not an unacceptable risk.
15Further, when interpreting the Act, the court is required to take into account matters listed in s 1B of the Act.
Material and evidence
16In considering this application I received the following documents from the prosecution:
·Prosecution submissions in respect of an application for bail dated today's date;
·A police summary; and
·The applicant's criminal history.
17I received the following documents from the Respondent:
Outline of submissions on application for bail dated 25 May 2020
·Letter from Michael Mikael the applicants brother dated 12 May 2020 regarding the availability of work for the applicant with their father’s business at Global Reblocking Pty Ltd;
·CROP assessment dated 25 May 2020 setting out the treatment/support arrangements that have been made for the applicant should he be granted bail;
·Letter from Odyssey House dated 30 March 2020 confirming the applicant’s appointment for intake and comprehensive assessment on 27 May 2020;
·Letter from Caraniche dated 13 May 2020 confirming the applicant’s attendance and participation in 43 sessions since 4 April 2019 whilst in custody, and relevant certificates regarding his attendance at counselling regarding relationships;
·Negative urine drug analysis screens dated 25/4/19, 22/9/19, 23/3/20 24/3/20 and 13/4/20;
·Certificates of statements of results from Box Hill Institute; and
·Additionally a letter from Prison Fellowship Australia dated 20 March 2020.
Argument of applicant
18Counsel for the applicant submitted that the following matters, namely delay, hardship in custody, suitable accommodation and ties to the jurisdiction, personal circumstances and referrals for treatment and support in the community for drug and alcohol issues, were established by the evidence and in combination, demonstrated exceptional circumstances that justify the grant of bail.
COVID-19
19Counsel for the applicant submitted that COVID impacted on both the delay in the trial proceeding and impacted on the applicant's conditions in custody.
Delay
20As indicated, the trial has been delayed at least another nine months, though it may be more. This estimate itself is somewhat speculative given the uncertainty surrounding restrictions and continuation or otherwise of them.
21These matters are alleged to have occurred in November 2018 – the applicant has been on remand for a total of 18 months in relation to them. Therefore if the trial proceeded as scheduled, he would have had approximately 22 months on remand. That period is now expected to be almost three years on remand.
22Reference was made to the remarks of Lasry J in Broes and Tinney J in Tong. It is clear that uncertainty re the timing of trials or the delay are part of the circumstances to take into account.
Conditions in custody – MRC
23Prior to restrictions, prisoners were able to be out of their unit in a run out for three hours day. That has now been reduced to two hours.
24Counsel also submitted that it was likely these conditions would remain for some time into the future.
25Additionally courses were no longer available that previously the applicant had participated in, and also his counselling that he had been engaged in was interrupted, though that has now been resumed.
Stable accommodation and strong family support – employment
26Counsel for the applicant relied on the evidence contained in his brothers’ letter that he could reside with his mother in Wallan. If granted bail, he would reside with her in stable accommodation.
27Further that the applicant had available employment in the family business and that his brother relies on him for assistance.
28That even though the applicant has an extensive criminal history, he has taken steps towards rehabilitation whilst in custody and has a range of support in the community.
29With respect to unacceptable risk, counsel for the applicant relied on all of the above matters. It was submitted that the relevant issue was the risk of re-offending and that that risk, though it existed here, is not an unacceptable risk that he would offend or endanger the public. The focus was on the risk of the applicant re-offending.
30Although it was not submitted that the Crown case was weak, though it was submitted that this was not a particularly serious example of this kind of offence.
31The prosecution did not concede that the applicant had shown exceptional circumstances either individually or in combination, relying on first:
32The strength of Crown case in respect of the offending.
33That although delay was conceded, that it was unlikely because of this offending or alleged offending and his significant prior history that he would be required to spend more time on remand than would be sentenced if in fact he is found guilty in respect of the matters.
34That the applicant has had very limited periods of time outside of custody or in the community over the last few years.
35In those circumstances the strength of arguments regarding employment and accommodation had less impact given that there had been periods of time when he had been in the community with those supports available and had quickly fallen back into reoffending.
36As to unacceptable risk, the prosecution argue that these factors mentioned above in combination point to the applicant being an unacceptable risk.
37It was submitted that even with the imposition of stringent bail conditions, the risks of further offending could not be alleviated. The prosecution submitted the nature of the alleged offending and history involving the breaching of court orders and violent offending, all indicating the applicant posed a risk to the public and of reoffending.
Conclusion
38In consideration of relevant matters under s 3AAA, first as to the nature and seriousness of offence, in this instance, attempted aggravated carjacking. I accept that this is not an example of the most serious instance of this kind of offence, however it still has a significant maximum penalty of 20 years.
39As to the strength of the Crown case, neither counsel submitted that the case was weak.
40The evidence of identification of the applicant and finding of keys and weapon in his car do point to a relatively strong case for the prosecution.
41The applicant has a significant criminal history for both drug and violent offences. It is of real problem that he has spent only very limited time in the community over the previous few years. He has also had two occasions of failing to appear and there is within his history, breaches of court orders including parole.
42As to the applicant’s personal circumstances, I accept the evidence that he has accommodation and employment available to him. Also in his favour, and I accept, that he has taken steps to rehabilitate himself within the prison, but also made arrangements outside in the community to address issues of drug and alcohol, which it would appear have been linked to his previous offending.
43The most significant issue is the length of time that the applicant will be on remand if not released on bail. I do not accept that he will inevitably receive a longer term of imprisonment which would far outweigh any period on remand.
44In respect of the overall implications of COVID-19 – I am conscious that delays in court proceedings have been brought about as a consequence of the steps taken to restrict the spread of the condition. I also accept that the applicant is now in custody in more onerous conditions than those before the restrictions were imposed, and that this will remain the case for the foreseeable future.
45Having carefully considered matters before me in support of the application, given the combination of circumstances the applicant has identified, particularly the period of delay but also coupled with the steps that he has taken to rehabilitate himself, and plans or arrangements that have been made within the community to deal with his drug and alcohol issues, I am satisfied that he has shown exceptional circumstances that justify the grant of bail. In coming to that conclusion I have taken into account all the surrounding circumstances required.
46Furthermore, I am satisfied that any unacceptable risks that are suggested to exist can be ameliorated by very stringent conditions on the grant of bail. In this regard, I have again taken into account all the surrounding circumstances.
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