Re Abaker
[2018] VSC 714
•20 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0276
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by MUNZAR ABAKER |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2018 |
DATE OF JUDGMENT: | 20 November 2018 |
CASE MAY BE CITED AS: | Re Abaker |
MEDIUM NEUTRAL CITATION: | [2018] VSC 714 |
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CRIMINAL LAW – Bail – 20 year old applicant with no criminal history – Armed robbery with the use of a loaded handgun, drug trafficking, and dishonesty offences – Requirement to show existence of compelling reason justifying grant of bail – Whether compelling reason shown – Whether unacceptable risk – Level of IQ of the applicant an important matter relied upon – Other evidence called into question the validity of the result indicated by testing – Serious offending – Strong prosecution case – No inordinate delay – Compelling reason not shown – Unacceptable risk of matters contained in s 4E – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Burt | Greg Thomas Barristers and Solicitors |
| For the Respondent | Ms S Lenthall | Mr J Cain, Office of Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applied for bail on a number of charges he is currently facing. The charges arose from a variety of alleged offending during 2018. The most serious charge faced by the applicant is an armed robbery alleged to have been committed on 17 March 2018. Armed robbery is an offence which appears in Schedule 2 of the Bail Act 1977 (‘the Act’). As a result, bail would need to be refused unless I was satisfied that a compelling reason existed that justified the grant of bail.[1]
[1]Bail Act 1977, s 4C(1A).
Having heard the application for bail, I announced my decision that the application was refused. I stated I would publish my reasons at a later time. These are those reasons.
Procedural history
The applicant was arrested and charged on 2 August 2018. He has been in custody since that time. He made an application for bail in the Magistrates’ Court on 15 October 2018. Bail was refused on the basis the applicant had failed to show the existence of a compelling reason in justification for the grant of bail. He is next due to appear in the Melbourne Magistrates’ Court for a committal mention on 7 December 2018.
The alleged offending
Armed robbery
The serious armed robbery with which the applicant is charged arises from the alleged involvement of the applicant in a syndicate of young people engaged in trafficking in a variety of drugs.
The victim of the armed robbery, Chad Gueco (‘Gueco’), asked a work colleague for a recommendation of someone from whom to purchase cannabis. Gueco was told a person named ‘Munzar’ could assist. The work colleague contacted the applicant via Facebook and in the end, the applicant commenced contact with Gueco via text messages.
So it was that a drug transaction was organised to take place at 8.30 pm on 17 March 2018 at Sweeney Reserve in Narre Warren. It was arranged that Gueco would purchase an ounce of cannabis from the applicant for $280.
Gueco arrived at the location in his motor vehicle, to be met by three individuals who alighted from a Silver Volkswagen. These males are believed to be the applicant and two others named Riaz Lodin (‘Lodin’) and Paguir Pan (‘Pan’).
Gueco then entered the VW with the other three males. He sat in the back with Pan, with Lodin in the driver’s seat and the applicant in the front passenger seat. Gueco was asked if he had the money. He produced the money which was then snatched by Pan. Gueco asked for the cannabis and Pan then got out of the car and proceeded to the boot. Gueco followed him. There was no cannabis there. The two then re-entered the vehicle. Lodin stated, ‘Just do it’. The applicant then produced a loaded handgun, turned around, and pointed it at the stomach of Gueco, saying, ‘This is a jacking. Get the fuck out!’ The gun was described as being 25 cm long and dark chrome and shiny in appearance. Gueco, being in shock at the events, initially remained seated in the back seat, prompting the applicant to further threaten him, this time while pointing the gun at his knee, ‘Get the fuck out or I’ll pop your cap off.’ Being in fear for his life, Gueco got out of the car and ran to his own vehicle.
The VW was then driven towards Gueco’s vehicle, colliding with the front left section. Gueco then followed the VW from the reserve, running into the rear of the VW when the brakes of that vehicle were applied. Gueco’s vehicle went out of control and smashed into a fence. The VW left the scene.
Gueco remained at the scene until police arrived. He made a statement and pointed out the applicant’s Facebook profile to the police, confirming that he was the male who had held the gun to him.
Evidence during the bail application from Detective Sergeant Ashley Penry indicated that the handgun used during the armed robbery was recovered by police from the home of the girlfriend of one of the co-offenders. It was described by the witness as being a silver 1896 Colt revolver with a long barrel. It contained ball-bearing bullets and required the use of black powder and could then function as a standard revolver. The revolver was loaded with both ball bearings and black powder when it was found. It was examined by a Victoria Police ballistics expert and confirmed to be a firearm.
Drug trafficking
Investigators from the Victoria Police Echo Taskforce took out telephone intercept warrants on the phones of the applicant and his associates. Investigation established that between 13 June and 31 July 2018, the applicant was trafficking in cocaine and cannabis. It is alleged that the applicant made arrangements to traffick drugs via telephone conversations, Wickr and Facebook Messenger. Telephone intercepts captured the applicant openly discussing weights and costs of future transactions, and chasing money from people in relation to past transactions where drugs had been sold on ‘tick’. It is alleged, by way of example, that the applicant would purchase 3.8 grams of cocaine for $800-$900, then use cutters to make 8 grams, which he would sell for $350-$400 per gram.
Deception offences
It is alleged that on 13 and 15 February 2018, the applicant and co-offenders were involved in the acquisition of alcohol, cigarettes and other items in multiple transactions at a liquor store in Dandenong with the use of stolen credit card details. The total value of these deceptions was said to be $2157.00.
The applicant and Pan are alleged to have acquired bank cheques stolen from a vehicle in Rowville on 23 July 2018. Between 25 and 27 July 2018, the cheques were used by the two men to purchase three motor vehicles from individuals who took the cheques to be genuine. Physical surveillance and telephone intercept material confirmed the applicant and Pan to be in possession of all three vehicles.
In addition to the above, it is alleged that between 13 July and the date of his arrest on 2 August 2018, the applicant utilised the ‘dark web’ to purchase stolen credit card details using bitcoin. The applicant then used the stolen details to purchase and attempt to purchase clothing, food, alcohol and petrol.
Arrest and interview of the applicant
The applicant was intercepted in a motor vehicle on 20 July 2018. He was in possession of three gram deal bags of cocaine. A number of stolen power tools were located in the boot of the vehicle. The applicant told police he was given the tools and drugs by two separate, unnamed males. He was not kept in custody at this time.
On 2 August 2018, search warrants were obtained for the homes of the applicant and Pan. The applicant’s phone was seized, and an examination of the phone revealed evidence of drug trafficking, handling stolen goods, and dealing with stolen credit card information.
The applicant was interviewed and admitted involvement with others in the armed robbery of Gueco. He admitted being the person who had contacted Gueco and arranged the meeting in Narre Warren. He did not admit being in possession of the firearm. He stated he was heavily affected by drugs at the time and could not remember exact particulars of the crime. He made no admissions to trafficking cocaine or cannabis, admitting no more than personal use, and supplying ‘cutters’ to friends. Further, he made admissions in respect of a number of the deception matters.
The applicant
The applicant is a 20 year old male of Sudanese descent. His family migrated from Sudan via Egypt to Australia when the applicant was 12. His father did not arrive here until some years later. The applicant was brought up in Doveton and then Dandenong South. He was educated at Lyndale Secondary College and then Carwatha College to the Year 12 level, but he gained an ATAR score of only 40 and failed to be offered a tertiary place, much to the disappointment of his parents, apparently. He has little in the way of employment history.
The applicant began abusing alcohol and cannabis at the age of 16, and commenced to use cocaine and ice in 2017. Prior to his arrest and incarceration, he resided with his parents and two siblings in Dandenong. He has no criminal history.
The evidence of Gina Cidoni
A psychological report of Gina Cidoni relied on in the application indicates that upon testing, the applicant was found to have a full-scale IQ of 54, a result that places him in the impaired range. 99.9 % of his age-related peers would do better than him.
Ms Cidoni was called during the application and gave sworn evidence in line with the content of her report. She confirmed the result of the testing of the applicant using the Wechsler Adult Intelligence Scale – Fourth Edition. She stated that anyone with an IQ below 70 is viewed as being in the impaired range, and at 54, the applicant could be considered to be of ‘extremely low intelligence’. In her report and in her evidence, Ms Cidoni indicated the limitations a level of intelligence such as that revealed by the result may have on the behaviour of the applicant.
Ms Cidoni was cross examined by Ms Lenthall for the respondent. The witness was confronted with some aspects of the proven conduct of the applicant in connection with his offending, which were in effect asserted by the questioner to be inconsistent with a low level of intelligence. In addition, the witness was asked about the evidence of the supervisor of the respondent, Detective Sergeant Ashley Penry who had already been called by the respondent during the application. His evidence indicated he had carried out the police interview of the applicant on 2 August 2018, and had listened to 9000 intercepted telephone calls involving the applicant. He said that he had never seen any sign of the applicant having any disability or being mentally impaired. When questioned about this evidence, Ms Cidoni maintained the IQ result was correct, and could be rationalised with proven conduct of the applicant and the evidence of Detective Sergeant Penry because people can hide their true level of intelligence, can learn quite complex behaviour, and that in the case of Penry, he was not an expert in evaluating intelligence.
On the issue of the level of intelligence of the applicant, I should mention also that a long-time worker with Youth Justice, Stephen Riordan, gave evidence during the application. Whilst he was called by the applicant to give evidence of the fact that Youth Justice would be willing to supervise the applicant and provide services should he be released on bail, he was asked whether, in the 90 minutes he had spent assessing the applicant on 15 October and 7 November 2018, the applicant had presented as cognitively impaired. He said he had not.
The law
Section 1B of the Act reads, in part, as follows:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 4 of the Act reads:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA of the Act sets out circumstances in which a 2 step test applies to the consideration of a grant of bail. Subsection (3) dictates that the ‘show compelling reason’ test applies to a decision whether to grant bail to a person accused of a Schedule 2 offence.
Section 4C of the Act has application where the ‘show compelling reason’ test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
Subsections (2) and (3) of section 4C indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of a compelling reason, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[2]
[2]Defined in s 3AAA of the Act.
Section 4D of the Act indicates that the bail decision maker must then go on to apply the ‘unacceptable risk test’ if satisfied that a compelling reason exists that justifies the grant of bail.
Section 4E of the Act reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
(2) The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
In considering whether a compelling reason exists, and also, if it comes to it, in considering whether a risk mentioned in s 4E(1)(a) is an unacceptable risk, I am required to take into account the surrounding circumstances. Section 3AAA of the Act sets out a non-exclusive list of matters required to be taken into account where the ‘surrounding circumstances’ are required to be considered.
Meaning of compelling reason
The meaning of ‘compelling reason’ was considered by Beach JA in the bail decision of Re Ceylan.[3] In that case, his Honour stated:
Similarly, an enquiry under s 4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[4]
[3][2018] VSC 361.
[4]Ibid [46].
Later in the decision, his Honour stated:
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified...While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as a reason which is difficult to resist.[5]
[5]Ibid [47].
The statutory provisions which applied at the time of Ceylan have since been amended. The current provisions were considered by Beach JA in the recent bail decision of Re Alsulayhim.[6] His Honour considered that in spite of the change in language of the relevant provisions, there was ‘no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason.’[7]
[6][2018] VSC 570.
[7]Ibid [28].
The applicant’s contentions
It was submitted by Ms Burt on behalf of the applicant that, notwithstanding the serious nature of the offending involving the use of a firearm, a consideration of the surrounding circumstances of this case pointed to the existence of a compelling reason which would justify the grant of bail. The matters pointed to in particular were:
(i)the fact that the case was not necessarily as strong as it looked. The admissions by the applicant might be excluded, and there may be an argument as to the admissibility of the Facebook identification evidence. No photoboard identification was carried out. Furthermore, in respect of the drug trafficking charges, they are denied;
(ii)the applicant has no prior convictions, has never failed to appear on bail, and has never committed an indictable offence while on bail;
(iii)the applicant has a stable residence with his family available to him;
(iv)the applicant has the support of his family;
(v)the services of Youth Justice are available to supervise the bail of the applicant. This is significant because he would be monitored in the community. He has a relatively recent drug dependence and has not had the opportunity to do drug counselling;
(vi)the applicant has special vulnerabilities, due to his low level of intelligence, and his recent diagnosis of PTSD;
(vii)the applicant is only 20 years of age. If found guilty, he may be suitable for a period of detention in a youth justice centre. He is currently on remand in an adult prison which is undesirable, due in particular to his impressionable nature, and the problems that peer pressure create for him;
(viii)the applicant has been able to reflect on what has happened, and the trouble his peers have led him into. He is well motivated to behave;
(ix)there will be some delay in the matter due to issues with the preparation of transcripts of telephone intercept calls.
Ms Burt further submitted that if I was satisfied of the existence of a compelling reason, the same considerations leading to that conclusion should lead me to the view that any risk of the matters set out in s 4E of the Act would not be unacceptable.
The respondent’s contentions
Ms Lenthall for the respondent submitted that it was important to remember the applicant was not a child. He engaged in a relatively protracted period of serious offending. The armed robbery itself was very serious. It was committed in the company of others with the use of a loaded antique firearm, a very concerning weapon. In the telephone intercept conversations, the applicant displayed a worryingly carefree attitude towards his drug trafficking and other offending.
In respect of the issue of the strength of the prosecution case, Ms Lenthall submitted the case was a strong one. The applicant made admissions to the armed robbery. The admissibility of the interview would be a matter for another court to consider, but exclusion of the interview would require a high hurdle to be reached. She submitted that the content of the interview was not consistent with the claim being made now as to the low level of intelligence of the applicant. In addition to the interview, the applicant had been identified through the use of Facebook. This was important evidence. The telephone intercept calls, also, were powerful evidence of guilt of some of the charges. All-in-all, it should be viewed as being a strong prosecution case.
There should be no inordinate delay in this case, so this was not an important factor.
As for the cognitive functioning of the applicant, the assessment of Ms Cidoni, it was submitted, did not take into account the full picture. The IQ of 54 revealed by testing was inconsistent with how the applicant presented to police in the interview and in the intercepted phone calls, was inconsistent with the evidence of Mr Riordan, and was inconsistent with the offending itself. Ms Lenthall urged me not to place much weight on the evidence about the cognitive state of the applicant.
As for the fact that the applicant would be living with his family at home were he to be released on bail, Ms Lenthall submitted that although the family may be well-meaning, they had been unable to control him in the past.
In respect of the risks under s 4E of the Act, these were considerable, and could not be adequately reduced by the imposition of any conditions of bail. The main concerns were of the applicant committing further offences, endangering members of the public, or interfering with witnesses in connection with the armed robbery. Ms Lenthall submitted the risks in question were unacceptable.
Discussion
One of the central matters relied on by the applicant during the application was the position in respect of his level of cognitive functioning. On that score, I have serious concerns about the question of whether or not the IQ of the applicant revealed by the testing of Ms Cidoni is a true reflection of his level of intelligence. The applicant, it seems, is a person who went through his entire secondary schooling in public schools in Melbourne to the Year 12 level without it being identified that he was substantially intellectually impaired. The evidence of his mother given during the application did not point to the family having any such impression of the applicant. His offending had some elements to it that were inconsistent with his having the impairment pointed to by the result. The way in which he conducted himself during the second police interview, in which, amongst other things, he gave selective ‘no comment’ answers, was further evidence inconsistent with the suggested cognitive level, as was the impression left on Detective Sergeant Penry of the vast number of intercepted telephone calls to which he had listened. Finally, the evidence of the experienced Youth Justice worker Stephen Riordan, who had had ample opportunity to form a judgment of the level of intelligence of the applicant, represented strong evidence calling the IQ test result into question. None of this is to say that Ms Cidoni did not appropriately conduct the WAIS testing, and end up with that result. However, in my view, the result obtained is highly questionable.
In any event, of course, the level of intelligence of the applicant, whilst it may be of great moment should it come to the point of sentencing the applicant, and no doubt would be more fully explored, is not of central importance in the application for bail. Unintelligent people can carry out serious offending, and if the applicant truly is as intellectually challenged as that IQ test result indicated, then it would by no means reduce the level of risk he might represent to the community.
Turning further to the surrounding circumstances that are relevant in this case, the armed robbery is a very serious crime. It is alleged the applicant, in what he admitted himself was a highly drug-affected state, pointed a loaded, antique handgun towards another person at close range and graphically threated on two occasions to shoot him. This occurred in the context of a drug rip-off. This serious crime of violence occurred in the context of somewhat of a spree of offending by the applicant of various types.
The prosecution case on the armed robbery is a strong one. The applicant was identified clearly by the victim, and admitted involvement in the interview. There is no reason at this time to suppose any of the evidence will be excluded by a court.
Nor is there reason to suppose there will be any inordinate delay in this case. Any such period is not likely to surpass the period of time the applicant might be required to spend in custody should he be found guilty of this crime.
As for the home environment and support available to the applicant, I agree with the submissions of Ms Lenthall that these were in place at the time of all of the alleged offending and had not been sufficient to control his behaviour.
Conclusion
Taking into account all of the relevant circumstances in this case, I was not satisfied that the applicant had shown a compelling reason that would justify the grant of bail in this case.
Furthermore, I can indicate for the sake of completeness that even had I been satisfied of the existence of a compelling reason, I would have been satisfied that the risk of the matters under s 4E of the Act would have been unacceptable, and would not have been able to be reduced to an acceptable level by the imposition of any conditions of bail.
For these reasons, the application for bail was refused.