Re Al-Qassim
[2022] VSC 576
•1 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0188
| IN THE MATTER of an Application for Bail by HUSSAIN AL-QASSIM |
| and |
| IN THE MATTER of the Bail Act 1977 (Vic) |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 August 2022 |
DATE OF RULING: | 1 September 2022 |
CASE MAY BE CITED AS: | Re Al-Qassim |
MEDIUM NEUTRAL CITATION: | [2022] VSC 576 |
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CRIMINAL LAW – Application for Bail – Applicant charged with aggravated home invasion with firearm, theft, assault with weapon, false imprisonment, armed robbery, intentionally cause injury – Strength of prosecution case – Delay – History of serious offending and breaches of bail – Availability of surety and employment – Availability of drug treatment and rehabilitation – Exceptional circumstances not found – Unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Chernok | Slaveski & Associates |
| For the Respondent | Ms S Coombes | Office of Public Prosecutions |
HIS HONOUR:
On 9 December 2021 the applicant, Hussain Al-Qassim, was arrested and charged by Senior Constable Andrew Selwyn in respect of a number of incidents that had occurred between August and December 2021. He was remanded in custody on that date and was most recently refused bail on 17 June 2022.
The applicant was charged by informant Selwyn with the following 48 offences:
(a)false imprisonment (ten counts);
(b)theft (seven counts);
(c)aggravated home invasion with firearm (five counts);
(d)assault with a weapon (five counts);
(e)committing an indictable offence whilst on bail (five counts);
(f)armed robbery (four counts);
(g)possessing a drug of dependence (three counts);
(h)dealing with property suspected of being the proceeds of crime (three counts);
(i)intentionally causing injury;
(j)recklessly causing injury;
(k)kidnapping;
(l)making a threat to kill;
(m)unlicensed driving; and
(n)possessing a prohibited weapon.
There is one co-accused in this matter, Ali Al-Bab, who was charged alongside the applicant on 9 December 2021 and was granted bail on 8 March 2022. The co-accused is 25 and has a criminal history, including recent convictions on 25 June 2021 for attempted burglary, burglary, robbery, committing an indictable offence on bail, and other dishonesty offending, for which he was sentenced to nine months’ imprisonment and 18 months on a community correction order.
The co-accused was charged by informant Selwyn with the following 27 offences:
(a)false imprisonment (eight counts);
(b)theft (five counts);
(c)aggravated home invasion with firearm (three counts);
(d)receiving stolen goods (three counts);
(e)dealing with property suspected to be proceeds of a crime (three counts);
(f)assault with a weapon (three counts);
(g)possessing a drug of dependence; and
(h)making a threat to kill.
The applicant also remains on bail and summons for another eight matters involving 34 charges. The applicant is on bail for four charges for driving-related offending (informant Rinvenuto),[1] and is on summons for 30 charges for driving and violent offending (informants De Boerr, McFarland, Reynolds, Bateman 1 and 2, Gervasoni, and Singh). The most serious of these is those charged by informant McFarland, including false imprisonment, affray and a variety of assault charges relating to an incident that occurred on 12 July 2021.
[1]Two counts of being a learner driver without supervising driver and two counts of driving a vehicle without L plate displayed.
The applicant’s matters are next listed as follows:
(a)Informant Rinvenuto (bail), Gervasoni (summons), and Bateman (summons) matters on 24 August 2022 for mention at the Heidelberg Magistrates’ Court;
(b)Informant McFarland (summons) matter on 6 September 2022 for contest mention at the Heidelberg Magistrates’ Court;
(c)Informant Singh (summons) matter on 13 September 2022 for mention at the Melbourne Magistrates’ Court;
(d)Informant Reynolds (summons) matter on 13 September for contest mention at the Heidelberg Magistrates’ Court;
(e)Informant De Boerr (summons) matter on 15 September 2022 for mention at the Heidelberg Magistrates’ Court;
(f)Informant Selwyn (remand) matter on 3 November 2022 for special mention and on 23 November 2022 for committal at the Melbourne Magistrates’ Court (two-day estimate).
Alleged offending - informant Selwyn
2 August 2021 incident: charges 1 – 7 and 44
It is alleged that at approximately 12:15am on 2 August 2021, the applicant and four unidentified co-offenders forced entry into a residential address in Templestowe Lower. One of the residents, JG, observed the offenders to be wearing balaclavas and brandishing weapons, including three firearms. JG tried to run away from the offenders but was struck down and beaten by them with what is believed to be an extendable baton. JG lost consciousness during the assault.
A motor vehicle, car keys, jewellery, and a mobile phone were stolen, with the motor vehicle being located three days later in Craigieburn.
A balaclava was seized outside the address the following morning. A preliminary test indicated the DNA on the balaclava matched that of the applicant. Enquiries conducted on the applicant’s mobile phone (and the local phone towers he was connected to immediately before and after the incident) are alleged to place him in the direct vicinity of the offence location at the relevant time.
29 October 2021 incident: charges 8 – 14, 45 and 46
It is alleged that at approximately 11:00pm on 29 October 2021, the applicant and two unidentified co-offenders forced entry into a residential address in Eltham. Two of the residents, DF and HF, were in bed when the offenders entered their bedroom. DF and HF saw that the offenders held weapons – one had a hammer, another had a screwdriver, and the third had a handgun. One of the offenders pointed a handgun at DF and demanded he open the safe. From it, they stole watches and jewellery, a light green iPhone and other devices, money, bank cards, and passports.
Two of the offenders held DF at gunpoint and forced him to drive them to an ATM and withdraw $2000, while the third offender remained at the house with HF. When they returned, the offenders threatened to harm the couple’s children before they left.
Enquiries conducted on the applicant’s mobile phone (and the local phone towers he was connected to) show that there was no activity on his phone at the time of this offence. Prior to the incident, the applicant’s mobile phone was connected to a phone tower approximately 8km from the offence location.
On 3 November 2021, the applicant registered the stolen light green iPhone to his phone number and address. On 15 November 2021, the applicant was recorded on police body worn camera footage in possession of a light green iPhone, matching the description of the iPhone stolen during the incident and subsequently registered in his name.
19 November 2021 incident: charges 15 – 21
It is alleged that at approximately 12:40am on 19 November 2021, the applicant, co-accused Al-Bab and an unidentified co-offender forced entry into a residential address in Doncaster. One of the residents of the address, JYT, had a small firearm pointed at her. Another resident, LW, had a butcher’s knife held to his throat, while the offender said: “don’t look at me, don’t move, or I’ll kill you”. It is alleged that the offenders also indicated that they knew information about their victims.
The residents were forced to remain on the couch while the offenders stole a Mercedes car valued at $156,450, car keys, designer goods, jewellery and approximately $8,000 in cash. A CCTV still captured the Mercedes being dumped approximately two hours later in Wollert, with the driver being collected by another vehicle. Trace DNA was found on the steering wheel of the Mercedes with “a likelihood ratio of 45 million if the applicant is a contributor”.[2]
[2]Affidavit in response, [19].
Enquiries conducted on the applicant’s mobile phone (and the local phone towers he was connected to immediately before and after the incident) are alleged to place him in the direct vicinity of the offence location at the time of the offending. Mobile data also places him in the vicinity of the dumped Mercedes, at the relevant time.
26 November 2021 incident: charges 22 – 27
It is alleged that at approximately 1:23am on 26 November 2021, the applicant, co-accused Al-Bab and two unidentified co-offenders forced entry into a residential address in Sunshine North. One of the residents, PQ, awoke to loud banging and opened the door to find three of the co-offenders. The fourth co-offender remained in the driver’s seat of a vehicle. The offenders demanded money from PQ, and the other residents of the address, including two young children, be brought out to the loungeroom. The residents were watched in the loungeroom while property was stolen from the address, including a necklace valued at $1,950.
Enquiries conducted on the applicant’s mobile phone (and the local phone towers he was connected to immediately before and after the incident) are alleged to place him in the direct vicinity of the offence location at the time of the offending.
3 December 2021 incident: charges 28 – 36 and 47 and arrest on 9 December 2021: charges 38 – 43 and 48
It is alleged that at approximately 1:00am on 3 December 2021, the applicant and co-accused Al-Bab forced entry into a residential address in Hillside. The offenders entered a bedroom where they found one of the residents, DR. One of the offenders was armed with a firearm, which was pointed at DR’s legs. The co-offender held a screwdriver. The offenders took DR to the room where his wife and son were sleeping. The offenders demanded the keys to a motorcycle.
The offenders are alleged to have placed the firearm in DR’s mouth, showed him its magazine, and told the family not to call the police or they would be killed. The offenders stole a motorcycle, motorcycle and car keys, an iPhone, an unknown amount of cash, perfume, and shoes.
Enquiries conducted on the applicant’s and co-accused’s mobile phones (and the local phone towers they were connected to) are alleged to place them in the direct vicinity of the offence location at the time of the offending.
At 9:40pm on 6 December 2021, the applicant was captured on CCTV riding the stolen motorcycle. The applicant was accompanied by a 2018 Toyota Corolla, registration YNQ63M. This motor vehicle matches the description of the vehicle which collected the driver of the dumped Mercedes following the home invasion on 26 November 2021, as captured on CCTV.
On 9 December 2021, the applicant’s address and nearby vehicles were searched pursuant to a warrant. Police seized various items which are alleged to have been stolen during incidents two, three, and four. Police also seized an extendable baton, screwdrivers, and a 2018 Toyota Corolla, which are alleged to have been used by the offenders during incidents 1, 2 and 3 respectively. The applicant made no comment, and when asked the whereabouts of a firearm alleged to have been used during incidents 1-3, denied any knowledge.
On 9 December 2021, the applicant and co-accused were interviewed. They made no comment, but confirmed their mobile phone numbers.
Evidence on the application
This application is supported by the affidavit of Stojne Slaveski, solicitor, dated 21 July 2022. That affidavit attaches a series of exhibits, including a diagnostic assessment report authored by Stu Holmes and Sophie Russell of the Australian Forensic Treatment Rehab (AFTR) dated 14 June 2022, and a letter of employment dated 15 June 2022, authored by the applicant’s brother, Ahmad Al-Qassim, Director of Smart Location Real Estate and TTT Building Services.
The application is further supported by a supplementary affidavit of Stojne Slaveski, solicitor, dated 15 August 2022, attaching an updated diagnostic assessment report of AFTR, and an updated letter of employment by Ahmad Al-Qassim.
In addition, the applicant filed an Affidavit of Surety sworn by Ameen Al-Qassim, offering a surety in the amount of $200,000 constituted by equity in real property.
In response, the respondent filed an affidavit of Julie Carpenter, solicitor, dated 10 August 2022, attaching a series of exhibits, as well as a supplementary affidavit in response of the same deponent dated 12 August 2022.
Oral evidence – Senior Constable Selwyn
At the hearing of the application, the respondent called evidence from the informant, Senior Constable Selwyn.
SC Selwyn confirmed that there were five separate incidents relevant to the offending alleged against the applicant involving a number of victims. He confirmed that he has made contact with all of the victims on multiple occasions since last December, and said that all of the victims oppose the applicant receiving a grant of bail. All apparently are still living in fear, and have not fully recovered from what happened to them. The victims have told the informant that they are fearful that the applicant will return and act against them in retribution. One complainant is said to have moved house as a result of the events.
Further, the informant said that in his opinion the offending alleged against the applicant had escalated, and he expressed the opinion that the applicant has previously had a number of opportunities to change his outlook and his behaviour and has shown disregard for provisions of the Bail Act. He also indicated that he held some concerns over the proposal to bail the applicant to his previous residential address, as this is the same address at which he was residing when the alleged offending took place.
Cross-examined, the informant agreed that the applicant has only one prior conviction for a breach of bail offence. He also said he had made enquiries in relation to the applicant’s parents, and confirmed that they have no disclosable prior convictions. He also indicated that in his opinion the proposed bail address, in a physical sense, would be suitable. However, the informant expressed the view that he had assessed the applicant as a high risk of reoffending based on the escalation in offending and his use of drugs.
The informant confirmed in cross-examination that certain evidence was still forthcoming, including a full DNA statement and an expert statement in respect of the mobile phone data. However, he confirmed that the police do have raw data from the mobile phone tower information, and some early indications that DNA testing is likely to provide highly probable results capable of adding strength to the prosecution case that the applicant was involved in the alleged offending.
Oral evidence – Ameen Al-Qassim
The applicant called evidence from his brother, Ameen Al-Qassim.
Mr Al-Qassim confirmed that he was prepared to provide a surety for the applicant by way of equity in a property owned by him, in which his parents reside. Mr Al-Qassim also gave evidence that he was prepared employ the applicant in his business should he receive a grant of bail.
Oral evidence – Sophie Russell
The applicant also called evidence from Sophie Russell, a psychologist employed with Australian Forensic Therapeutic Rehab (AFTR).
Ms Russell confirmed that AFTR is a facility which provides drug rehabilitation services on an outpatient basis. She told the court that AFTR has been operational since the beginning of 2022, and that since its commencement they have provided services to up to 15 clients on bail, and only one had come back with a positive urine screen test over that time.
The applicable legislation
As the applicant is charged with a schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’),[3] bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[4] In considering whether the applicant has satisfied this test, the Court must have regard to the surrounding circumstances, including those relevant under s 3AAA(1).[5]
[3]Bail Act 1977 (Vic), sch 1, item 4 (aggravated home invasion).
[4]Ibid s 4AA(1) and s 4A(1A)-(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that risk is unacceptable.[6] In determining this, the Court must have regard to the surrounding circumstances and whether there are any bail conditions that may mitigate the risk so that it is not unacceptable.[7]
[6]Ibid s 4A(4), s 4D(1)(a), s 4D(2)-(3) and s 4E(1)-(2).
[7]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant was born at the Curtin Immigration Reception and Processing Centre in 2000, his parents being Iraqi refugees. His parents struggled to make a new life in Australia after the family was granted asylum.
At age 12, having been influenced by older children in his social group, the applicant began using alcohol and drugs. At age 13, he was stabbed in an afterschool altercation. He required hospital treatment for this injury, and was prescribed intensive pain medication which he admits to having abused from this time. Approximately two years later, the applicant was stabbed at a party. He again required hospital treatment, and was prescribed strong sleeping and pain medication. The applicant says that he began joyriding after being discharged from hospital, to get an adrenaline rush.
In his mid to late teenage years the applicant began using cocaine and methylamphetamine. From 2019, when aged 18 to 19, the applicant was smoking methylamphetamine daily, and at a very high quantity. Over the past 2-3 years, the applicant thought about stopping drug use but says he did not know how to break the addiction.
At the time of the present alleged offending, the applicant was 21 years of age and living at his family home. He is now 22 years of age.
The applicant has been assessed by AFTR on 14 June 2022. In the opinion of the AFTR report writer, the applicant’s sensation-seeking behaviour, in terms of both joyriding and drug use, was a form of self-medication which the applicant used to cope with his trauma, fear and anxiety. The AFTR clinical team diagnosed the applicant with polysubstance use disorder, impulse control disorder, and a strong likelihood of post-traumatic stress disorder.
Criminal history
The applicant has relevant criminal convictions, the majority of which have been dealt with in the Children’s Court.[8] Most recently, on 5 April 2019, the applicant was convicted of home invasion, burglary, and other offending, and sentenced to 2 years 11 months’ detention in a youth justice centre.
[8]See affidavit in support, exhibit SS-6, for a copy of the applicant’s criminal history.
Intervention order
The applicant is subject to a final personal safety intervention order made to protect the victim of the informant McFarland matter, which occurred on 12 July 2021. A copy of this order has not been provided but the respondent has advised it expires on 22 February 2023.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify a grant of bail.
Strength of the prosecution case and delay
The applicant submits that the prosecution case is circumstantial, that there is no positive identification of the applicant by any witness, and no DNA evidence places the applicant directly at any of the crime scenes.
The applicant refers to an email sent on 14 June 2022 by Julie Carpenter, the OPP solicitor, informing that Vodafone/TPG statements as to which mobile phone towers the applicant’s phone was connected to at the time of the alleged offending is still not available.
The applicant notes information provided by Victoria Police that the DNA statement in relation to the balaclava found at the scene of incident 1 will not be available for at least three months. The applicant notes also that Victoria Police have provided a statement indicating that DNA found on a steering wheel has a high likelihood ratio of belonging to the accused, but that clarification is required in relation to which vehicle this refers to.
The applicant’s committal hearing was listed on 16 and 17 June 2022, but the prosecution made an application for an adjournment due to outstanding disclosure, which the applicant opposed. The prosecution application was granted, and the matter was relisted for committal hearing on 23 and 24 November 2022. The applicant has spent a total of 251 days (or just over 8 months) in pre-sentence detention.
Availability of treatment
The applicant has provided a letter from AFTR dated 14 June 2022, confirming his suitability for their into a 12 week outpatient rehabilitation program.[9] The applicant submits that if bail is granted he can begin the program immediately.
[9]For a copy of the letter, see affidavit in support, exhibit SS-7.
The AFTR program includes treatment for substance use disorder, impulse disorder, and PSTD, and would involve:
(a)Individual daily alcohol and other drug counselling sessions;
(b)An individual daily curriculum;
(c)30 minute daily group therapy sessions;
(d)Episodes of individual weekly psychology;
(e)Individual cognitive behavioural therapy and acceptance commitment therapy;
(f)Three times weekly supervised urine drug screenings (one being random);
(g)Volunteer work; and
(h)Daily compulsory attendance of AA & NA meetings.
The applicant would attend the AFTR program during the day, and return to his family home in Epping each evening. The report writer proposes that this model of rehabilitation has been found to be more effective in achieving long-term, sustainable behavioural change in the real world, as compared to traditional residential programs which may only achieve short term abstinence in a controlled environment.
In the AFTR report writer’s opinion, the applicant is ready and motivated to undertake rehabilitation and turn his life around, and states:
[The applicant] presented as a man that was fully cognisant of his current situation with a large focus on introspection and improving himself. He openly discussed his need for assistance to overcome his substance dependence so that following release he can stay abstinent from those substances he has been dependant on for most of the past decade, and to formally address his mental health issues and with the goal of achieving sustainable behavioural change to break the cycle of addiction and offending so he can be the “normal son” his parents have repeatedly begged him to be…
… [The applicant] expressed his concerns in relation to the impacts that his addiction and corresponding behaviour has had on his family and the connections that he had lost and said he is determined to pursue a treatment program that can enable him to break the cycle. In recent years he said that he has experienced the deaths of some of his close friends as a result of substance misuse. He said that this and the ever-approaching physical health consequences of his substance misuse, are the driving motivators for him to undergo treatment and stay clean and sober.
Surety
The applicant puts forward that his brother, Ameen Al-Qassim, offers a surety by using available equity in real property. The applicant submits that a surety of $200,000 is available in support of this bail application.
Employment
Ahmad Al-Qassim, another of the applicant’s brothers, is the director of Smart Location Real Estate and TTT Building Services. Should the applicant be granted bail he has been offered full time employment at TTT Building Services. The applicant would work directly with his brother as an assistant in project management. Mr Al-Qassim confirms that, upon completion of any rehabilitation program he may be required to attend, the applicant can begin work immediately. Mr Al-Qassim also provides that the applicant will be given time to attend any follow-up counselling sessions that may be required.
COVID-19 and onerous conditions in custody
The applicant submits that, due to COVID-19 outbreaks within the prison facility he has been subjected to multiple 24 hour lockdowns; has only had contact with his family via Zoom calls and limited phone contact; and that social activities, education and other courses are not as readily available.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail.
The applicant submits that he is willing to comply with any conditions imposed on him by the Court. He proposes the following bail conditions:
(a)The applicant to reside at his parent’s home address in Epping;
(b)Report to Epping Police Station on days as the court sees fit;
(c)Not to leave his place of residence during hours of a curfew
(d)Undergo forensic 12 week program with AFTR and obey any directions imposed by program coordinator during the period of the program;
(e)Not to leave Australia;
(f)Not to leave the State of Victoria;
(g)Not to contact witnesses for prosecution except the informant;
(h)Not to associate with co-accused; and,
(i)Surrender valid passports and travel documents.
Endangering the safety and welfare of any person
The applicant submits that the informant’s concerns for public safety are held on the basis that the applicant is one of the offenders. However, the applicant submits that the present prosecution case does not place the applicant at any of the crime scenes. Evidence which the prosecution says places him at or in the vicinity of the crime scenes, such as Vodafone/TPG statements, has not yet been disclosed.
Failing to surrender into custody in accordance with the conditions of bail
The applicant submits that he has limited prior convictions for contravening conditions of bail, all of which have been dealt with in the Children’s Court.
The applicant submits the allegation that he is a flight risk has no basis. The applicant submits that there is no allegation that he has ever absconded or avoided attendance at court for indictable offences before.
The applicant submits that the presumption that the accused is hard to locate and will avoid apprehension is without basis, as he has been residing in a family home for his whole life. Further, it is submitted that he has multiple summons matters for which he has obtained legal representation, and that he would not have engaged solicitors for these matters if he was avoiding apprehension.
The respondent’s contentions
The application for bail is opposed on the basis the applicant has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify the grant of bail. In addition, the informant submits there is an unacceptable risk that the applicant will endanger the safety and welfare of any person, commit an offence while on bail, interfere with witnesses or otherwise obstruct the course of justice, and fail to surrender into custody.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following matters.
Strength of the prosecution case and delay
The respondent disputes the prosecution case is weak and notes that DNA found on the stolen Mercedes dumped shortly after the offending in incident 3 has a very high likelihood ratio of belonging to the applicant. It is further submitted that substantial amounts of property stolen during from incidents 2, 3 and 5 were located at the applicant’s residence during the execution of the search warrant on 9 December 2021.
The respondent submits that the Vodaphone/TPG statements regarding the connection of the applicant’s mobile phone to mobile phone towers, which are argued to place him in the vicinity of the offending at the relevant time, have now been obtained and will be provided to the applicant.
The respondent submits that the DNA statement in relation to the beanie found is anticipated to be available before the special mention listed on 3 November 2022.
The respondent acknowledges that the applicant has spent 251 days in custody by way of pre-sentence detention. However, it is submitted that the applicant will likely face a lengthy term of imprisonment if convicted.
Employment
The respondent notes that the applicant has previously been employed by his brother at ‘TTT Building Services’ and that this fact has not acted to deter the applicant from further offending.
Criminal history
The respondent submits that the applicant is incorrect in stating that he has a criminal history for offending that took place as a minor. His most recent conviction on 5 April 2019 related to offences which occurred on 13 June 2018, when the applicant was 18 years of age.
Furthermore, the respondent highlights the following aspects of the applicant’s history:
(a)On 5 April 2019 he was convicted in the County Court of offences including home invasion, with intent to steal, and other property related offences. He was sentenced to a period of 2 years 11 months’ detention in a Youth Justice Centre, with a period of 296 days declared as already served.[10]
(b)On 5 April 2017 the applicant was convicted in the Children’s Court of offences including aggravated burglary with intent to steal and other property related offences. He was sentenced to a period of 9 months’ detention in a Youth Justice Centre, with a period of 98 days declared as already served.[11]
[10]See affidavit in response, exhibit JC-1 for a copy of the sentencing order; exhibit JC-2 for a copy of the indictment; and exhibit JC-3 for a copy of the sentencing remarks of Her Honour Judge Riddell.
[11]See affidavit in response, exhibit JC-4 for a copy of the police summary in relation to that conviction.
Bail compliance history
The respondent notes the applicant has prior convictions from the Children’s Court in 2015 of committing an indictable offence whilst on bail and contravening a conduct condition of bail. There are no other convictions for bail related offences.
The informant notes that warrants have been issued for the applicant’s apprehension by the Children’s Court on the following dates: 25 June 2015, 18 December 2015, 20 February 2018 and 10 April 2018. Furthermore, warrants were issued by Heidelberg Magistrates’ Court on 16 March 2021 and 8 July 2021.
The respondent submits that it is not clear from the applicant’s affidavit in support as to how the pandemic had an effect on the applicant’s failure to answer bail by attending court.
Availability of treatment
The informant submits that the applicant has had opportunities to undertake rehabilitation in the past but has not availed himself of those opportunities.
The respondent submits that the applicant was living at the proposed bail address in Epping during his alleged offending, and that his family members have been unable to support him in order to stop his offending from occurring.
Complainant’s views on bail
The respondent notes that all of the victims are opposed to a grant of bail. The complainants are fearful that the applicant will return to their houses.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent cannot be moderated to an acceptable level by the imposition of conditions of bail.
Endangering the safety and welfare of any person
The informant submits that the applicant poses an unacceptable risk to the safety and welfare of the general community if he is released on the basis of:
(a)the alleged violence used in the applicant’s offending;
(b)the applicant’s lack of remorse and failure to co-operate with police;
(c)the applicant’s continued offending despite previous involvement with Community Corrections and previous custodial sentences; and
(d)the driving related offences before the Court.
Committing an offence whilst on bail
The informant submits that the applicant was on bail at the time of the alleged offending, and this did not provide a disincentive from him from committing further offending.
Interfere with a witness or otherwise obstruct the course of justice
The informant submits there is a risk the applicant will threaten, harass or coerce the prosecution witnesses into changing or retracting their statements.
Failing to surrender into custody in accordance with the conditions of bail
The informant notes that the applicant has been the subject of two warrants of apprehension for failing to appear at court bail on 25/06/2015 and 8/07/2021, and five warrants of apprehension for failing to appear at court on summons between 18/12/2015 and 16/03/2021.
Analysis and conclusions
Exceptional circumstances
This application is governed by provisions of the Bail Act, which are to be applied and interpreted having regard to the guiding principles of s 1B(1). This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.
The application proceeded on the basis that the parties accepted that the exceptional circumstances test applied.
In determining this application I have considered and applied the following observations as to the exceptional circumstances test set out by Lasry J in Re Strachan,[12] in which His Honour observed:
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a) 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.
b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[13]
[12][2021] VSC 538.
[13]Ibid, [27].
As to the strength of the prosecution case, it is submitted on behalf of the applicant that the prosecution case is not only circumstantial and there is no evidence of positive identification of the applicant by any victim of the offending that occurred, and no DNA evidence that puts the applicant directly at any of the crime scenes.
Furthermore, it is pointed out that forensic testing is not complete, and there is no certainty as to when results of DNA testing and statements as to the use of mobile telephones will be completed and finally served on the applicant. Hence, it is submitted that the applicant has an arguable defence to the charges, whilst it is nevertheless acknowledged that the prosecution case could not be regarded as weak.
On the other hand the respondent points to preliminary outcomes relating to the telephone tower evidence and DNA evidence, as well as physical items from some of the home invasions found at the time of the execution of the search warrant at the applicant’s home. As to the latter, whilst it is acknowledged that by itself the possession of items directly linked to some of the home invasions might prove no more than possession or handling of stolen items, the respondent argues that this evidence should not be evaluated in isolation but as part of a broader circumstantial case.
It is not the role of this Court to try the offences with which an applicant is charged, but to come to a broad conclusion as to whether the cases brought against an applicant might be regarded as being strong or weak. In my opinion, the cases brought against the applicant cannot be regarded as weak or foredoomed to fail, and appear to reasonably arguable from the prosecution perspective. In reaching that conclusion, I have had regard to the evidence placed before the Court, including the preliminary results of DNA testing and mobile phone data, as well as the items located during the execution of the search warrant.
As to delay, it is without doubt there will be a significant delay that will occur in respect to the resolution of the applicant’s charges. The delay is likely to be extended by the respondent’s desire to further question witnesses in respect of the possible identification of the applicant, and it being unknown when forensic testing will be completed. Accordingly, it may well be that the delay in this matter will result in the applicant’s charges not being resolved until some time well into 2023.
In many instances, such a delay could be regarded as exceptional by itself, and possibly of significant importance when considering all relevant matters together in combination. The extent of delay experienced by the applicant should also be considered against the potential outcome should he be found guilty of any or all of the offences with which he is charged.
It is almost beyond dispute that some of the offences charged against the applicant are grave in nature. The charges are multiple in number, were highly violent and frightening. It is alleged in one instance a victim was knocked unconscious, another had a firearm placed in his mouth, threats to kill were made, and children were made to be witnesses to violent invasions in their own homes, where members of families were threatened and assaulted by armed offenders.
In my opinion it is reasonable to conclude that, should the applicant be found guilty of some or all of the offences with which he is charged there is a high likelihood he would receive a very substantial sentence that well surpasses the time he will likely spend in remand custody. At the same time, I also take into account that the applicant is a young man in adult custody for the first time.
The applicant has put forward that, should he receive a grant of bail, he has been assessed as suitable for a 12-week outpatient rehabilitation program with AFTR to begin immediately. It was suggested the applicant was, ‘ready and motivated’ to undertake rehabilitation for alcohol and drug abuse, including psychology and behavioural therapy.
The report from AFTR has described the applicant as having a complex history of chronic illicit and prescribed substance abuse, coupled with traumatic early teenage experiences and a long history of offending. In the description of some of the applicant’s past treatments the authors have been critical of some of what were described as ‘unfortunate aspects’ of treatment previously provided to the applicant. I have taken the AFTR proposal into account and note the evidence called before me about this program, which I will discuss further below.
I also acknowledge the evidence of available residence at the applicant’s family home, the availability of a surety, and the proposed employment by the applicant’s brother.
In making an assessment of whether the applicant has satisfied the exceptional circumstances test, I have taken into account the surrounding circumstances as I am required to do. I have taken into account the applicant’s youth, and the likely delay in these matters being resolved. On the other hand, I consider that the allegations are extremely serious and in my opinion, if proven, are likely to result in the applicant being sentenced to a period well in excess of the period he will likely spend on remand.
The applicant has some very serious and relevant prior convictions, including a home invasion for which he was sentenced in 2019 to a significant custodial outcome in a youth justice centre. The County Court judge sentencing the applicant on that occasion described the applicant’s actions as very serious offences involving the violation of people’s safety and the sanctity of their home, and that he had shown a complete disregard for people’s personal belongings and the right to safety in their own home. Those remarks made by the County Court judge in 2019 seem particularly apposite to assessing whether the exceptional circumstances test has been met in the present application.
In my opinion, taking into account all of the matters put forward, the applicant has failed to establish exceptional circumstances so as to justify a grant of bail.
Unacceptable risk
Having found that the applicant has not met the exceptional circumstances test, I will observe that even if I had found that exceptional circumstances were established, the application would nonetheless have failed on the basis of unacceptable risk. The respondent has satisfied me that there is an unacceptably high level of risk that the applicant will commit further offending if granted bail.
In my opinion, the safety of the community is a consideration of particular relevance and concern in the circumstances of this application. The combination of the applicant’s relevant criminal background, and the degree of violence evident in the present allegations, are very significant considerations for this court. The present allegations represent serious examples of repeated behaviour carried out on a series of separate occasions, in company with multiple other offenders against victims in different locations across the wider Melbourne area. The offenders appear to have been highly mobile in their activities.
It is alleged that a high level of violence was deployed against a series of disconnected and innocent victims. This offending occurred in private homes, mostly in the early hours of the morning, making the offences with which the applicant is charged an extremely serious set of allegations. There is no evidence before the court as to how the victims were targeted.
Furthermore, the applicant also faces a dauntingly large list of outstanding allegations for multiple instances of driving offences for which he is either on summons, or for which he has received previous grants of bail. In a number of these instances he has failed to appear at listed court hearings, with warrants being issued. It appears these alleged offences have occurred between August 2020 and October 2021.
I also note that in July 2021, the applicant was charged with possession of a prohibited weapon, namely a set of knuckledusters. Further, he faces allegations of false imprisonment associated with an alleged assault.
In summary, the allegations that the applicant faces appear to demonstrate a propensity on the part of the applicant for repeated offending and an attitude of significant disdain towards obeying the law.
As discussed above, the applicant has relevant prior convictions of a very serious nature, including the home invasion in company with others in 2018, for which he was sentenced to detention in a youth justice centre. The sentencing remarks of the County Court judge indicated that the applicant and two other offenders first committed a burglary on a particular day, and later the same day a home invasion where a 15-year old victim was in a house by herself and became frightened when one of the three offenders appeared to try to open her bedroom door whilst she was blocking entry.
After the applicant and his co-offenders left the house, there was police intervention which resulted in the applicant responding with violence and resisting arrest, resulting in him having to be overpowered and handcuffed. In the car in which the applicant had driven with other offenders to those premises police found a machete. The sentencing judge remarked as to the seriousness of the offences and the violation of the safety of persons in the sanctity of their homes, in which the applicant showed complete disregard for people’s personal belongings and the right to their safety.
Furthermore, the applicant has previously been convicted in April 2017 in the Children’s Court for aggravated burglary, again in company, in which it was alleged that he was armed with a weapon, and as a result was sentenced to 9 months’ detention in a youth justice centre. The applicant’s background with respect to burglaries and a home invasion, followed by the present allegations of multiple home invasions of a violent nature, is very concerning, and relevant to the assessment of unacceptable risk.
Section 1B of the Bail Act compels the court to remain mindful of the importance of maximising the safety of the community, while taking into account the presumption of innocence and the right to liberty. Due to the young age of the applicant I have given careful consideration to the proposal that the applicant could have received a course of therapeutic treatment, should he be admitted to bail.
Having heard from the witness called on this particular issue, I was left unsatisfied that the outpatient program and treatment proposed would be effective in contributing to a reduction in risk to an acceptable level. I did not find the evidence given with respect to the nature of the proposed program to be persuasive.
Further, I do not regard it as satisfactory that the applicant would travel each day to the facility for treatment, and I do find it hard to accept the opinion of the authors of the tendered report that the structure of the AFTR program leads to far more successful outcomes longer term than in the traditional residential model of alcohol and substance rehabilitation. In my opinion, such a claim should be subjected to careful scrutiny and supported by independent research before being accepted at face value. I also note that the report did not appear to comply with the spirit of the Supreme Court of Victoria practice note on the use of expert reports in this Court.
In all the circumstances I am not able to conclude that a series of conditions attaching to a grant of bail could have ameliorated the risk of the applicant committing further offences to an acceptable level, and in my opinion based on all of the evidence and taking into account all of the surrounding circumstances, including the recent criminal background of the applicant, the respondent has satisfied me that the applicant is an unacceptable risk of committing further offences on bail, constituting not only a risk to the safety of other persons, but also of failing to answer a grant of bail.
Taking into account all of the circumstances, the application for bail is refused.
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