Re Ahmar-Smith
[2022] VSC 204
•28 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0090
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an application for bail by DARCY AHMAR-SMITH |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2022 |
DATE OF JUDGMENT: | 28 April 2022 |
CASE MAY BE CITED AS: | Re Ahmar-Smith |
MEDIUM NEUTRAL CITATION: | [2022] VSC 204 |
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CRIMINAL LAW – Application for bail – Exceptional circumstances – Respondent concedes exceptional circumstances exist – Whether applicant an unacceptable risk – Delay in charging applicant – Bail granted with conditions – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4D, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Williams | Slade and Parsons |
| For the Respondent | Mr J Kibel | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Darcy Ahmar-Smith (‘the applicant’) is facing a number of charges in the Magistrates’ Court. The applicant was arrested and charged with unlicensed driving on 6 April 2022. At the same time, he was also charged with other offending that allegedly took place in July 2021. In respect of the July 2021 offending, he is charged with the following: being a prohibited person possessing a firearm; unlicensed person failing to store a firearm in a secure manner; possessing cartridge ammunition without a license; and committing an indictable offence while on bail. He was remanded in custody and an application for bail before a Magistrate was unsuccessful on the basis that the applicant represented an unacceptable risk of committing an offence while on bail.
In respect of the firearms offence that allegedly occurred in July 2021, the informant alleges that police found a homemade firearm behind the driver’s seat and some ammunition in the glove box of a car that had been allegedly driven by the applicant. Police originally believed the car had been stolen by the applicant, but a charge of theft was later withdrawn on the basis that he had purchased the car. It appears that the vendor of the car had also sold it to another person who believed that the applicant had stolen it from him.
The prosecution will allege that traces of the applicant’s DNA have been located on the firearm. In a recorded interview conducted with police on 6 April 2022, the applicant stated that:
(a) the vehicle had been delivered to his residence by another man on 8 July 2021, who he named;
(b) he had seen and touched the firearm and ammunition in the vehicle, and that the firearm belonged to the other person. The applicant made no admission to the ammunition belonging to him; and
(c) he had seen the firearm on a previous occasion, in the other person’s garage in April 2021.
The applicant has some relevant criminal history arising from a single court hearing. On 21 March 2022, the applicant was sentenced in the Heidelberg Magistrates’ Court for dishonesty offences; driving and bail offences; possession of a prohibited weapon, imitation firearms, and ammunition; and contraventions of a family violence safety notice (‘FVSN’). He was sentenced to an aggregate 28 days’ imprisonment with a 24 month community correction order (‘CCO’). The CCO included conditions that the applicant engage with supervision, assessment and treatment; participate in men’s offending behaviour programs; and complete 150 hours of unpaid community work.
I note that the offending for which the applicant was sentenced on 21 March 2022 also included a charge of possessing a drug of dependence and committing an indictable offence whilst on bail. That charge related to a quantity of drugs found in the vehicle at the same time that police allege the firearm was located in that vehicle. Thus, as will appear, he was sentenced for some offending that occurred on the same day or at the same time as that alleged in respect of the current charges for which the applicant seeks bail.
The applicable test for bail
Guiding principles
This application is governed by the Bail Act 1977 (‘the Act’). The Court is required to have regard to its guiding principles in s 1B(1) when interpreting and applying the Act.
Step 1 – exceptional circumstances
The applicant is accused of, amongst other things, committing a Schedule 2 offence while on bail for another Schedule 2 offence, and accordingly bears the onus of satisfying the Court that exceptional circumstances exist that justify the grant of bail.[1] The exceptional circumstances test is applicable as the applicant is alleged to have committed a Schedule 2 offence,[2] namely committing an indictable offence whilst on bail for another Schedule 2 offence.[3] Essentially it appears that on 9 June 2021, the applicant was bailed on a charge of committing an indictable offence on bail and the current charge relates to a further charge of committing an indictable offence whilst on bail.
[1]The Act, s 4AA(2)(c)(i).
[2]Ibid sch 2, item 30.
[3]Ibid.
At the time of this alleged offending, the applicant was subject to bail granted on 9 June 2021 in relation to indictable offences, including theft of a motor vehicle and committing an offence whilst on bail.
If the applicant does not satisfy the Court that exceptional circumstances exist, bail must be refused. In considering whether there are exceptional circumstances, the Court must have regard to the relevant surrounding circumstances, including those in s 3AAA(1) of the Act.
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,[4] 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.[5]
[4][2022] VSC 88.
[5]Ibid [30] (citation omitted).
In Roberts v The Queen,[6] 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.[7]
[6][2021] VSCA 28.
[7]Ibid [47]–[48] (emphasis in original).
Step 2 – unacceptable risk
If the applicant discharges the burden at step 1, the Court must still refuse bail if satisfied by the respondent that the applicant, if granted bail, would pose an unacceptable risk of any of the matters set out in s 4E(1)(a) of the Act.[8] The Court must have regard to the surrounding circumstances in determining unacceptable risk, and give thought to whether there are any conditions of bail that could be imposed to mitigate any risk so that it is not unacceptable.
[8]The Act, s 4D(1)(a).
Family violence risks
The Court in considering the release of any accused person on bail must make inquiries as to whether there is in force against that person a family violence intervention order (‘FVIO’), FVSN or other recognised domestic violence order.[9] The applicant in this case is currently the respondent to a final FVIO with no-contact conditions, subject to limited exceptions. The FVIO was imposed in the Heidelberg Magistrates’ Court on 31 May 2021 and expires on 30 May 2022.
[9]Ibid s 5AAAA.
The applicant’s personal circumstances
The applicant is a 24 year old man with a diagnosis of borderline personality disorder. He had a difficult childhood, including being subjected to sexual abuse. At the age of seven, the applicant’s mother moved interstate with the applicant’s half-sister and the applicant moved in with his father. The applicant changed schools numerous times throughout his childhood and struggled to develop friendships. He reports being diagnosed with ADHD, but has not received treatment. The material reveals that the applicant started taking drugs from the age of 13, including cannabis and methamphetamine. He left home at 15 with a view to live independently, which was interspersed with periods of homelessness. He ultimately returned to live with his father. The applicant finished Year 12 and went on to obtain work in the hospitality and construction industries. However, his most recent employment was terminated due to the loss of his licence in the context of being sentenced for various offences in March 2022. Prior to this, the applicant had full-time employment and was studying a Certificate 3 in Demolition. At the time of his arrest, the applicant was living at a rental property in Thomastown.
The respondent’s submissions
The respondent submits that, having regard to the matters relied on by the applicant, it is open to the Court to be satisfied that there are exceptional circumstances justifying the grant of bail. I was informed that the informant does not oppose the grant of bail subject to conditions.
On the question of unacceptable risk, the respondent submits that, having regard to the nature of the offending and the surrounding circumstances, there is a risk that the applicant would endanger the safety of persons or commit an offence on bail, but the respondent accepts that it is open to the Court to be satisfied that the risks can be mitigated to an acceptable level through the imposition of suitable conditions.
Decision
I am satisfied that there are exceptional circumstances justifying the grant of bail. I reach that conclusion from a combination of factors. First, there is a real risk that the time on remand would exceed any sentence that might be imposed. I accept that the delay in the Magistrates’ Court means that a contested hearing may not be heard during the course of this year.
Second, the alleged offending took place in July 2021, and the applicant was dealt with in March 2022 for various offending, including an offence that was committed at the same time and other offences which were, in general terms, of a similar order of seriousness. The sentence imposed in March 2022 resulted in a relatively short term of imprisonment, represented by time-served of 28 days, and a CCO. I am satisfied that a similar disposition could well be imposed in the event that the applicant is convicted of the charges which he currently contests. Further, it is possible that had the applicant been sentenced for this offending at the time he was sentenced for the earlier offending, the total sentence may not have been very different to that which was imposed. He has been denied the benefit of having all offending dealt with at the same time.
I also take into account the applicant’s personal circumstances, his relatively brief criminal history, and the strength of the prosecution case, which although could not be said to be weak, does give rise, I am satisfied, to triable issues.
Third, I take into account that the applicant has arranged accommodation at the premises of an uncle, who has agreed to provide a self-contained bungalow at the rear of the premises. The uncle has indicated that he will assist the applicant in his endeavours to find employment. I note that I was told by the respondent that the informant had had discussions with the applicant’s uncle who has offered accommodation and is satisfied that the accommodation is appropriate and that the applicant’s uncle would notify police in the event of any breach of bail conditions.
Relatedly, and this is the fourth matter, I take into account that the applicant does have family support and I note the presence in Court of his father and his partner, who were in Court in person, and the applicant’s mother, who observed the proceeding by way of audio-visual link.
I also take into account as the fifth matter, that the applicant is currently subject to a CCO which contains therapeutic and other conditions, which I am satisfied ought not be further disrupted by an ongoing period of incarceration.
Taking all of these matters into account, I am satisfied there are exceptional circumstances justifying the grant of bail. I am not satisfied that the applicant poses an unacceptable risk and I am satisfied that the risk that the applicant does pose, having regard to his antecedents and the nature of the offending, can be addressed adequately by the imposition of strict conditions.
In taking into account the assessment of risk, I also take into account the factors that informed my conclusion that there are exceptional circumstances, including family support, the existence of accommodation, and the discipline that the ongoing CCO will impose.
In the circumstances, subject to the applicant agreeing to subscribe to the conditions of bail, I propose to make a grant of bail to the applicant. I will include orders that the applicant reside at [redacted]. I am persuaded that it is appropriate to impose a curfew which would require the applicant to remain at those premises between 9.00 pm and 5.00 am each day and present himself at the door if asked to do so.
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