Re Aguer Goback and Goback Goback
[2022] VSC 229
•9 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0094
S ECR 2022 0105
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application by AGUER GOBACK and GOBACK GOBACK |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2022 |
DATE OF ORDERS: | 5 May 2022 |
DATE OF REASONS | 9 May 2022 |
CASE MAY BE CITED AS: | Re Aguer Goback and Goback Goback |
MEDIUM NEUTRAL CITATION: | [2022] VSC 229 |
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CRIMINAL LAW – Applications for bail – Whether compelling reasons exist justifying the grant of bail – Whether exceptional circumstances exist justifying the grant of bail – Whether applicants are an unacceptable risk – Youthful offenders – Bail granted with conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For Applicant Aguer Goback | Mr L Cameron | James Dowsley & Associates |
| For Applicant Goback Goback | Mr A Cameron | Matthew White and Associates |
| For the Respondent | Ms P Thorp | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 10 November 2021, following an investigation, Aguer Goback, was arrested and charged by Detective Senior Constable Thomas Stalder with attempted aggravated home invasion; threat to damage property; possess prohibited weapon without excuse; possess controlled weapon without excuse; commit indictable offence while on bail; possess drug of dependence (two charges); and deal with property suspected of being proceeds of crime. Aguer Goback answered ‘no comment’ during a record of interview.
On the same day, Goback Goback (who is the elder brother of Aguer Goback) and Kan Tap were arrested in relation to the incident. They were similarly charged and remanded in custody. In their records of interview, Mr Tap denied involvement and Goback Goback answered ‘no comment’.
Goback Goback and Aguer Gobeck were remanded in custody. Bail was refused in the Magistrates’ Court. The Goback brothers have each applied for bail in this Court. Their matters are next listed in the Melbourne Magistrates’ Court on 10 June 2022 for a committal hearing.
At the conclusion of the hearing I granted bail to each applicant. These are my reasons for doing so.
The alleged offence
The prosecution allege that, on 30 September 2021, four people, including the tenant, were in a rented unit in Collingwood when three males approached and began banging on the front windows. The males were armed with poles and stabbed at the front security door with a machete, forcing it open, before opening the main door and throwing a piece of wood inside, striking the hip of one of the occupants.
The occupants rushed towards the door and forced it closed, while the three males yelled out demanding to be let in, stating, ‘We want the scooter, we want your cash, we are going to rob you.’ After five minutes of attempting to gain entry into the unit, the males abandoned their efforts, damaging a table out the front of the unit in the process.
The occupants reported the incident to police, who attended, took forensic samples, obtained descriptions of the males and their clothing, and commenced reviewing CCTV from the area.
On 24 March 2022, the charge of attempted aggravated home invasion brought against Aguer Goback was withdrawn and a new charge of attempted aggravated burglary was filed in its place.[1] A similar course is intended in respect of Goback Goback.
[1]Affidavit in Response, [19].
I turn first to the application of Aguer Goback, whom I shall refer to as Aguer. I shall refer to Goback Goback as Goback.
THE APPLICATION BY AGUER GOBACK
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles in s 1B(1) of the Bail Act 1977 (‘the Act’).[2]
[2]The Act, s 1B(2).
Section 4AA(3) of the Act provides that the compelling reason test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence, if subsection (2) does not apply. Aguer is charged with attempted aggravated burglary and committing an indictable offence while on bail, which are both Schedule 2 offences.[3] He is also charged with various other indictable offences that are alleged to have been committed while he was on bail for other indictable offences, which is also a Schedule 2 offence.[4] For these reasons, both Aguer and the respondent submitted that the compelling reason test applies to the Court’s decision of whether to grant bail to Aguer.
[3]Ibid sch 2, items 22(b), 31 and 30.
[4]Ibid sch 2, item 1(a).
At the hearing of the application, I raised with the parties the applicability of the exceptional circumstances test on the basis that Aguer was serving a youth attendance order at the time of the alleged offending.[5] The respondent said it had given some thought to the question of whether a youth attendance order is a ‘sentence’ for these purposes. If that was the case, then the applicable test for bail would be exceptional circumstances. The respondent submitted, and Aguer agreed, that a youth attendance order is not a sentence and that the compelling reason test applies. Given that this was the agreed position of the parties, I will proceed on that basis.
[5]Under s 4AA(2)(c)(v) of the Act, the exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if the offence is alleged to have been committed while the applicant was serving a sentence for any Schedule 1 or Schedule 2 offence.
The Court must refuse bail unless satisfied by Aguer to the requisite standard that bail is justified.[6] In making this determination, the Court must have regard to the relevant surrounding circumstances,[7] including those in s 3AAA(1) of the Act.
[6]The Act, ss 4A(1A)-(2) and 4C(1A)-(2).
[7]Ibid ss 4A(3) and 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if satisfied that there is a risk that Aguer would engage in any of the matters outlined in s 4E(1)(a) of the Act[8] and that such a risk is unacceptable. In determining whether any risk is unacceptable, the Court must again have regard to the relevant surrounding circumstances and consider whether there are any conditions of bail that could be imposed to mitigate the risk so that it is not unacceptable.[9]
[8]Ibid ss 4E(1)-(2).
[9]Ibid s 4E(3).
Aguer’s personal circumstances
Aguer is 19 years old. On the material before this Court, he reports a history of poor mental health, including longstanding anxiety marked by panic attacks and paranoia, in addition to possible experiences of psychosis, with reference to irregular auditory hallucinations. Aguer has a history of drug use and identified his substance use as problematic, noting that it had previously led to an overdose and hospitalisation. He reports a pattern of escalating substance use during periods of limited supervision, which were typically brought about in the context of his mother’s frequent travels overseas, during which times Aguer would live with his older brother in rental accommodation. Prior to his remand, he was living with his older brother in Collingwood.
Criminal history
Aguer has a criminal history in the Children’s Court jurisdiction, which can be summarised as follows:
(a) on 17 August 2020, he was found guilty in the Melbourne Children’s Court, without conviction, of possess cannabis (two charges); deal with property suspected of being proceeds of crime (two charges); and commit an indictable offence while on bail. He was released on a six-month good behaviour bond with a special condition that he engage in drug and alcohol counselling as directed by Youth Justice. The matter was discharged on 16 February 2021.
(b) on 25 January 2021, Aguer was convicted in the Melbourne Children’s Court of attempted aggravated carjacking; recklessly cause injury in circumstances of gross violence; and commit an indictable offence while on bail. He was sentenced to a nine-month youth attendance order with a special condition that he engage in offence-specific programs as directed by Youth Justice.
(c) on 21 September 2021, in the Melbourne Children’s Court, Aguer was:
(i) found guilty, without conviction, of affray and released on a six-month good behaviour bond. The matter was dismissed on 18 March 2022.
(ii) found guilty of breaching the youth attendance order, which was confirmed and ultimately lapsed on 24 October 2021.
Outstanding matters
At the time of the alleged offending in the Stalder matter, Aguer was serving a youth attendance order and subject to a good behaviour bond, both of which have since expired. He was also on bail for offences of theft; recklessly cause injury; unlawful assault (two charges); robbery; and possess drug of dependence (two charges), after being charged by Senior Constable Monica Allen on 24 February 2021 and released on police bail that same day.
On 22 December 2021, following his arrest and remand in the Stalder matter, Aguer was charged on summons by Detective Senior Constable Trysten Debernardi with theft of a motor vehicle; deal with property suspected of being proceeds of crime; dishonestly retain stolen goods; and commit an indictable offence while on bail. These charges relate to events on 20 July 2021, predating the alleged offending in the Stalder matter.
Aguer remains on bail and summons in the Allen and Debernardi matters respectively.
Aguer’s contentions
It was submitted that there are genuine triable issues in the case, including in relation to identification.
It was also submitted that Aguer’s criminal history is limited, in that it is confined to four appearances before the Children’s Court. He has no criminal history in the adult jurisdiction and no history of failing to answer bail. Aguer is a young person, being 19 years old. He was 18 at the time of the alleged offending.
Aguer submitted that there is likely to be a delay in the finalisation of the matter, first to the committal hearing and then to trial, if committed. Aguer has been on remand since 10 November 2021 and the committal hearing is listed on 10 June 2022. Aguer submitted that should the matter proceed to trial, it may not be held until December 2023. He noted that he may spend more time on remand awaiting trial than he would spend in custody, if convicted.
Aguer was supported by his aunt, Monica Atem, who is willing to have him live with her if bail is granted. It was noted that the proposed address is some distance from the location of the alleged offending.
Aguer will have access to the following community-based supports if bail is granted:
(a) Court Integrated Services Program (‘CISP’): Aguer was assessed by CISP on 21 March and 28 April 2022. He was found suitable for case management, with a recommendation that his progress be reviewed after four weeks to better assess his commitment to the program. The assessor identified several issues for follow up if Aguer were to be granted bail, including assessment and treatment for longstanding substance use, anger management, poor mental health, and a possible acquired brain injury.
(b) O Street of Parkville College: O Street, formerly known as the Flexible Learning Centre, is based in Fitzroy and is connected to Parkville College. It is described as a culturally responsive learning space for young people who are leaving custody and returning to the community, offering various supports and referral services, including in relation to education, employment and counselling. Aguer has a history of engagement with O Street commencing in October 2020, where he worked on various learning, work-readiness, administrative and fitness goals. His attendance fluctuated initially, but between March and June 2021 it increased significantly with him attending the site three to four times per week. This was interrupted due to the site moving to Footscray between July and November 2021, leading to a reduction in Aguer’s attendance. Notwithstanding this, Aguer remained in regular contact with staff during that period and they have been in regular contact with him while he has been in custody. Aguer has reportedly repeatedly expressed a desire to staff to return to O Street once he is released from custody. In a letter dated 18 March 2022, social worker from O Street, Cara Morrissy, wrote of Aguer:
In the time that I have known him, [Aguer’s] capacity for personal organisation, self-regulation and completion of tasks has increased significantly. He can articulate his emotional states and needs to people that he trusts and seek support when required. [Aguer] has demonstrated his increasing capacity to help-seek through his successful engagement with other service providers… I am confident that with ongoing support and guidance, [Aguer] will continue to mature and to build his internal resources and work towards his personal goals.
When Aguer is released from custody, O Street will work with him to take on work-readiness, training, employment and fitness goals, and to provide referrals for any other identified needs. Ms Morrissy concluded her letter by saying:
I believe that engagement at O Street is a protective factor for [Aguer], and that he derives a sense of purpose from experiencing success in his learning. [Aguer] has developed strong relationships with O Street staff. These relationships are also a protective factor for him and I believe that his engagement at O Street is an indicator of his significant potential for rehabilitation and future development
I note that Ms Morrissy gave oral evidence on the application in which she outlined the supports available to Aguer. She said that O Street had an outreach program that could assist Aguer in travelling to O Street from the proposed residence and that officers at O Street would tell the informant in the event of non-compliance with bail conditions.
(c) Yarra Youth Services (‘YYS’): Aguer was initially referred to YYS by O Street in July 2021. From that time, Aguer has been supported by a youth support officer from that service, Chris Hallam, through regular weekly phone contact. This support has included material aid, advice about organising payment of rent and bills, and assistance with attending appointments and liaising with other services. In a letter dated 22 March 2022, Mr Hallam noted that his work with Aguer up until his remand was limited somewhat by COVID-19 related restrictions, which significantly reduced their ability to meet face-to-face, and, in Mr Hallam’s opinion, may have caused Aguer to not feel fully supported. Mr Hallam stated:
During our appointments and engagement [Aguer] has been receptive to goal setting and acknowledging his support needs. He held a high level of contact by either taking my calls or calling me back if he missed any. He was proactive in reaching out when needed but was perhaps let down by our large inability to meet face to face or for him to make use of our physical Youth Centre due to lockdown restrictions.
Mr Hallam noted that, if Aguer was released from custody, he would continue to support him and this support would now be able to operate in a face-to-face context.
The respondent’s contentions
The respondent opposed bail on the basis that Aguer has not satisfied the requisite threshold test for being granted bail, and further on the basis that he poses an unacceptable risk of endangering the safety and welfare of any person and committing an offence.
While it was conceded that Aguer’s criminal history is limited, in the sense that he has only had a few prior court appearances, it was noted that many of the offences contained in his criminal record are serious in nature. Aguer’s criminal record also contains multiple offences of committing an indictable offence while on bail, and further, Aguer currently has pending charges for the same offence.
It was submitted that Aguer’s proposed accommodation with his aunt, Ms Atem, is not suitable. In support of this, the respondent stated that Ms Atem had previously been responsible for supervising Aguer and his brother, Goback, at their apartment in Collingwood, and that while looking after them there in July 2020, police executed a search warrant and located an ounce of cannabis in Aguer’s possession, in addition to cash, multiple mobile phones and a stolen license.
In response to Aguer’s submission about having appropriate treatment and support services in the community, the respondent noted that Aguer had previously engaged with the proposed services at O Street and YYS, and submitted that those services have not been successful in rehabilitating or deterring Aguer from offending.
The respondent noted that, prior to the current alleged offending, there were multiple occasions where Aguer was located by police with weapons in his possession, or in the possession of people he was in company with. On some of those occasions, Aguer provided false details to police or ran from them. In addition, the respondent noted that Aguer has a violent criminal history, which includes offending in a group context against members of the public. This is to be taken together with the fact that the current allegations involve Aguer, as part of a group in possession of weapons, violently intimidating members of the public in their own home. The respondent relied on these matters to submit that Aguer poses an unacceptable risk of endangering the safety and welfare of any person if bail is granted.
In support of the contention that Aguer poses an unacceptable risk of committing an offence while on bail, the respondent relied on Aguer’s current charges and criminal history both including offences of committing an indictable offence while on bail. Further, the respondent relied on the fact that, at the time of the present alleged offending, Aguer had only nine days earlier appeared in court and been made subject to a good behaviour bond for an offence of affray, and had his youth attendance order confirmed after a breach of it was proven.
Decision
Aguer must persuade the Court that there are compelling reasons justifying a grant of bail. As explained by the Court of Appeal in Rodgers v The Queen,[10] what is required is that a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.[11] It is not necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
[10][2019] VSCA 214.
[11]Ibid [43] (Beach, Kaye and Ashley JJA).
I am satisfied that there are compelling reasons justifying the grant of bail. I reach that conclusion from a combination of factors.
First, there is a real risk that if this matter remains contested and proceeds to trial, it will not be heard until December 2023. Aguer was remanded in November 2021. Were he to remain in custody, that would mean a likely delay of more than two years before this matter would proceed to trial. Whilst I do not necessarily accept that were Aguer to be found guilty he would receive a shorter sentence than the likely time on remand, I am satisfied that the time on remand would represent a very high proportion of (and perhaps exceed) any sentence that might be imposed. I take into account that the charge is one of attempt, there was no entry to the premises, and nothing was stolen. The occupants were able to hold off the intruders. These matters suggest that there will be room to argue that this was a less serious example of the offence. Further, I accept there is a triable issue on identification.
Second, Aguer is currently 19 years old and this is a significant factor in favour of finding compelling reasons exist justifying the grant of bail. This is the first time he has been in an adult prison.
Third, Aguer has a number of personal supports available to him, including O Street and YYS. Both services will assist Aguer in obtaining access to alcohol and drug counsellors and mental health treatment. Further, Aguer has been assessed by CISP and has been recommended for case management.
Fourth, Aguer has family support. His aunt gave oral evidence before me that, if granted bail, Aguer could reside with her. She said that Aguer will have his own bedroom and that she will assist him in getting to any appointments he may have. She said that if she became aware that Aguer was breaching his bail conditions, she would notify the informant. I accept that the proposed accommodation is not perfect. It is far from the personal supports that have been put in place, including O Street and YYS, and during a search of Aguer’s premises, some cannabis was allegedly found at a time that his aunt was also living there (although I note that there was no suggestion that the drugs belonged to the aunt or that she was aware of them). Further, Aguer’s aunt has three young children, including a baby; her husband works full time; and she works part time. There will be a limit as to what can reasonably be expected of her to supervise Aguer. Nevertheless, the proposed accommodation offers a stable family home and some level of support and supervision.
I turn then to whether the respondent has satisfied me that Aguer represents an unacceptable risk should he be granted bail. I accept that Aguer does pose a risk to the community based on his prior history, albeit the prior matters were dealt with in the Children’s Court. His prior criminal history does reveal a troubling set of behaviour. I accept that the current offending for which Aguer is seeking bail occurred while he was lacking certain supports, including his mother being absent overseas and the fact that O Street had temporarily relocated to Footscray and, as a result, Aguer’s attendance had reduced. Having regard to the personal supports now available to Aguer, including the CISP program, I am satisfied that the risk posed by Aguer can be reduced such that it is not unacceptable.
Further, I accept that if the Court imposes strict bail conditions, the risk posed by Aguer, which I accept plainly exists, can be rendered acceptable. It is to be hoped that Aguer, who has now been on remand for over six months, understands more closely the consequences that would follow if he breached any of his bail conditions.
It is for the above reasons that I granted bail with a number of conditions.
THE APPLICATION BY GOBACK GOBACK
Goback Goback is charged with the following offences:
(a) attempted aggravated home invasion;
(b) threat to damage property;
(c) possess prohibited weapon without excuse;
(d) possess controlled weapon without excuse; and
(e) commit indictable offence while on bail.
On 7 March 2022, Goback was charged with a further offence of attempted aggravated burglary, which is intended to be a substitute offence for attempted aggravated home invasion. The bail application was argued on the basis that the charge of attempted aggravated home invasion will be withdrawn and Goback will face the attempted aggravated burglary charge.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles in s 1B(1) of the Act.[12]
[12]The Act, s 1B(2).
Step 1 – exceptional circumstances
Because Goback is currently charged with a Schedule 2 offence,[13] which is alleged to have occurred while he was on bail for another Schedule 2 offence,[14] the Court must refuse bail unless it is satisfied by Goback, having regard to the surrounding circumstances, including those in s 3AAA(1) of the Act, that exceptional circumstances exist that justify the grant of bail.[15]
[13]Ibid sch 2, items 22(b) and 31.
[14]Ibid sch 2, item 30.
[15]Ibid ss 4AA(1), s 4AA(2)(c)(i), and 4A(1)-(3).
Meaning of exceptional circumstances
While the Act does not define what is meant by ‘exceptional circumstances’, the phrase has been the subject of extensive judicial scrutiny. In Re ER,[16] Kaye JA, sitting in the trial division, said:
In effect, the applicant must establish circumstances that are ‘right out of the ordinary’, so that they are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is well established that exceptional circumstances may comprise a combination of circumstances which, individually, might not themselves be considered to be exceptional.[17]
[16][2022] VSC 88.
[17]Ibid [30] (citation omitted).
In Roberts v The Queen,[18] Maxwell P, Niall and Emerton JJA detailed a number of factors commonly relied upon by persons applying for bail to satisfy the exceptional circumstances test, and concluded:
What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending…
It is the perceived need to avert or mitigate such injustice which justifies the grant of bail — provided always that the circumstances can properly be characterised as exceptional.[19]
[18][2021] VSCA 28.
[19]Ibid [47]–[48] (emphasis in original).
Step 2 – unacceptable risk
If satisfied at step 1, the Court must move to consider the unacceptable risk test and refuse bail if it is satisfied by the respondent, again having regard to the surrounding circumstances, that Goback poses an unacceptable risk of any of the matters outlined in s 4E(1)(a) of the Act.
In considering whether any risk is unacceptable, the Court must look at whether there are any conditions of bail that could be imposed to moderate a risk so that it is not unacceptable.[20]
[20]The Act, s 4E(3)(b).
Goback’s personal circumstances
Goback is 22 years old. He was born in Kenya and migrated to Australia in 2006 as a refugee. Prior to his remand, Goback was living with his brother, co-accused Aguer, in Collingwood in accommodation provided by the Department of Families, Fairness and Housing (‘DFFH’).
Goback has a relatively minor criminal history commencing in May 2020, as follows:
(a) on 7 May 2020, he was found guilty in the Bail and Remand Court, without conviction, of possess drug of dependence; negligently deal with proceeds of crime; and commit an indictable offence while on bail. He was placed on a 12-month adjourned undertaking and ordered to pay $450 into the court fund.
(b) on 10 February 2022, he was found guilty in the Neighbourhood Justice Centre, without conviction, of possess drug of dependence (six charges); possess prohibited weapon without approval; deal with property suspected of being proceeds of crime; commit indictable offence while on bail; and fail to answer bail. He was sentenced to an aggregate fine of $1,000. The magistrate also found that charges of theft; refuse to state name and address; resist an emergency worker on duty; commit indictable offence while on bail (two charges); possess alprazolam; and possess a controlled weapon without excuse proven, but dismissed them under s 76 of the Sentencing Act 1991.
(c) on 5 April 2022, a single charge of contravene a conduct condition of bail was found proven in the Melbourne Magistrates’ Court, but dismissed under s 76 of the Sentencing Act 1991.
Goback’s contentions
It was not in dispute that the charges against Goback are inherently serious, which is reflected in the maximum penalty of 20 years’ imprisonment for the offence of attempted aggravated burglary.
It was not argued that the prosecution case is weak, however, Goback noted that there are a number of issues to be tried in terms of identity. In particular, he submitted that there is no direct identification evidence because the offenders were not known to the complainants and there is otherwise no CCTV of the incident. The surrounding CCTV is capable of supporting findings that:
(a) Goback was in the vicinity of the incident, both before and afterwards;
(b) Goback was in company with co-accused, Aguer, who was in possession of a machete following the incident; and
(c) Goback disposed of a machete in the communal laundry of his apartment building sometime after the incident.
Goback has no prior convictions recorded on his criminal history, although does have various findings of guilt.
The pending charges against Goback are alleged to have been committed while he was on bail in six other matters. It was conceded that if Goback is found guilty of the present charges, they will constitute a serious breach of bail. While Goback does already have a history of committing bail offences, it was submitted that the amount and gravity of those offences are relatively low.
Goback is said to have the support of his aunt, Monica Atem, and he relied on a letter from her dated 22 February 2022, which stated:
I have supported [the applicant] and his siblings for a long time. Between 2019-2020 I lived on-and-off with [the applicant’s] family for nine months, and would stay at their apartment on Wellington st (sic), Collingwood on the weekends.
I am writing to confirm that I will support [the applicant] if he is granted bail. I currently live in Wyndham Vale with my family. [The applicant] is welcome to come and visit me and my family whenever he would like. I can support [the applicant] with groceries and financial support, and I am available for him to call me whenever he needs help with anything.
I can also confirm that I am in touch regularly with [the applicant’s] mother, Akuol Atem, and I can confirm that she is intending to return to Melbourne in March 2022. Upon her return, she will live in Collingwood and will provide support to [the applicant].
Goback and Aguer previously lived together in Collingwood. It was proposed that Goback would return to reside at this apartment if bail is granted. Aguer does not propose to return to the same address if bail is granted.
It was submitted that Goback has a number of support services available to him in the community if bail is granted, which are submitted to extend beyond the type of supports that could be offered solely through other services, such as CISP. In summary, the proposed supports are as follows:
(a) O Street of Parkville College: if bail is granted, Goback will be supported by social worker Cara Morrissy from Parkville College’s O Street program. Goback first started attending O Street in October 2020, which increased over time with the exception of a period between July and October 2021 when the service relocated temporarily. The staff at O Street have remained in contact with Goback throughout his time in custody, and he has expressed to them a desire to seek assessment and treatment for his mental health and alcohol and drug use. To this end, Ms Morrissy has arranged referrals for Goback to engage with the ‘Head to Health’ initiative for a mental health assessment and the ‘Multicultural Drug and Alcohol Partnership’ which offers education, outreach and support to young South Sudanese people in the area with a focus on drug and alcohol use. When Goback is released from custody, O Street will support him to connect and engage with these services and work with him to identify any other support needs, including in relation to education and employment; and
(b) YYS: in addition to the supports and services offered through O Street, Goback will also have the support of YYS youth development officer, Chris Hallam, if bail is granted. Mr Hallam will work in conjunction with the staff at O Street to provide Goback with flexible and ‘wrap around’ support to ensure he is properly supported in the community.
Goback has been in custody since 10 November 2021, with the matter next listed for committal hearing on 10 June 2022. Goback submitted, with reference to a trial listings projections document published by the County Court in July 2021, that a trial is unlikely to be listed until late 2023. However, in view of Goback’s youth and the fact that the prosecution intend to withdraw the charge of attempted aggravated home invasion, it was submitted that Goback is still likely to spend more time on remand for this matter than any sentence that would be imposed if he were found guilty.
Goback’s experience of remand has been more burdensome due to the COVID 19 pandemic, including an initial period of 14 days isolation, limited visitors and increased periods of lockdown.
It was conceded that there is a risk that, if granted bail, Goback will endanger the safety and welfare of any person, commit an offence or obstruct the course of justice. However, it was submitted, with reference to the surrounding circumstances, that the risk is not unacceptable and can be mitigated with appropriate bail conditions.
The respondent’s contentions
The application for bail was opposed on the basis that Goback has not established exceptional circumstances that justify the grant of bail. It was further opposed on the basis that, if granted bail, Goback poses an unacceptable risk of endangering the safety and welfare of any person and committing an offence.
It was submitted that there is a strong circumstantial case against Goback.
The respondent submitted that, at the time of the alleged offending, Goback was on six counts of bail for matters that have since resolved. He is currently charged with committing an indictable offence while on bail and his criminal history also includes dispositions for bail offences.
Goback proposed to return to his DFFH apartment in Collingwood if granted bail. Whilst there was some ambiguity about the ability of Goback to return to the Collingwood apartment, both the nominal informant and Mr Hallam gave oral evidence before me that they had made enquiries and that Goback is able to gain access to the relevant apartment should he be granted bail.
It was submitted that Goback poses an unacceptable risk of endangering the safety and welfare of the community on the basis that he has a history of committing serious offences, which the respondent said show a complete disregard for the safety and welfare of members of the public. This lack of regard for the safety of the community is also reflected in the pending charges, which allege that the applicant, in company, violently intimidated members of the public in their own home. It was submitted that Goback has since shown a lack of remorse for his alleged actions, noting that he changed his clothes after the alleged incident and then attempted to hide the clothes and a machete from police.
The respondent submitted that Goback has committed offences consistently over the past two years, including while on bail, and poses an unacceptable risk of committing further offences if granted bail.
Decision
I am satisfied that there are exceptional circumstances justifying the grant of bail. I reach that conclusion from a combination of factors.
First, the delay Goback faces is considerable. I was informed that if the matter remains contested and proceeds to trial, it would likely not be heard until late 2023. Given Goback was remanded in November 2021, this would mean that he would serve more than two years on remand before this matter would proceed to trial. Goback is young and in light of the expected delay, he faces the real possibility of spending over two years on remand before this matter proceeds to trial. There is a real chance the time on remand would exceed any sentence imposed.
Second, Goback has a number of supports available to him in the community. Goback is connected to both O Street and YYS, and I was informed that both services are willing to engage additional services to assist Goback, including mental health treatment and drug and alcohol counselling.
Third, Goback is 22 years of age. Whilst he has previously served periods on remand, the current period of remand is the longest period of incarceration he has served.
Fourth, Goback has the support of his family. His aunt wrote a letter on his behalf and referred to her ongoing support of him. Further, I was informed that Goback’s mother is due to return from overseas and will be able to provide additional support to him.
For these reasons I was satisfied that there were exceptional circumstances justifying bail.
In regards to unacceptable risk, plainly, there is a risk that Goback will commit an offence whilst on bail or endanger the safety or welfare of any person. Goback’s recent criminal history and history of offending whilst on bail is of considerable concern in this regard. However, the real questions are whether that risk is an unacceptable one and whether any risk can be ameliorated by the imposition of strict conditions.
Goback has strong supports available to him, including O Street and YYS. Both services have indicated a willingness to support Goback as best they can and pursue additional supports that they consider will further assist him. He also has family support.
In all the circumstances, I am not satisfied that Goback is an unacceptable risk. I am satisfied that any risk posed by Goback can be rendered acceptable by strict bail conditions.
It is for these reasons, I granted bail with strict conditions.
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Re Aguer Goback and Goback Goback [2022] VSC 229
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