Re Ali
[2022] VSC 581
•7 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0192
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by MOHAMED ALI |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2022 |
DATE OF JUDGMENT: | 7 September 2022 |
CASE MAY BE CITED AS: | Re Ali |
MEDIUM NEUTRAL CITATION: | [2022] VSC 581 |
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CRIMINAL LAW — Application for bail — Charges of armed robbery, robbery, intentionally causing injury, recklessly causing injury — Availability of stable employment and accommodation — Availability of community support — Strength of prosecution case — Compelling reason found — Respondent alleged family violence history relevant to risk — Risk not unacceptable with conditions —Bail granted — Bail Act 1977 (Vic) ss 1B, 4A, 4AA, 4D, 4E, 4E, 5AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr John Moore | Matthew White & Associates |
| For the Respondent | Ms Lisa Andrews | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Mohamed Ali (‘the applicant’). He is currently on remand on the following charges brought by Senior Constable James Mioch, relating to events alleged to have occurred on 6 June 2021 (‘the Mioch matter’):
· armed robbery;
· robbery;
· intentionally causing injury;
· recklessly causing injury.
Procedural history
The applicant was arrested and charged in the Mioch matter on 9 June 2021.[1] He was remanded overnight and granted bail in the Magistrates’ Court the following day, on 10 June 2021, on the basis of treatment available to him in the community, and his lack of relevant prior convictions and bail history.
[1]At that time, the applicant was also charged with the additional offences of unlawful assault and possessing cartridge ammunition without a licence, which have since fallen away.
On 9 December 2021, the applicant was charged and remanded on unrelated family violence offences (‘the family violence matter’).
On 15 December 2021, the applicant’s bail in the Mioch matter was revoked by consent.
On 3 February 2022, the applicant was committed to stand trial in the County Court on the Mioch matter.
On 13 May 2022, the charges in the family violence matter were withdrawn.
On 5 July 2022, the applicant applied for and was refused bail in the County Court in the Mioch matter, on the basis that he had not shown a compelling reason justifying the grant of bail.
On 2 August 2022, the applicant filed an application for bail in this Court. The matter is next listed for a further directions hearing in the County Court on 8 September 2022, with a joint trial scheduled to commence on 27 April 2023.
Alleged offending
On 4 June 2021, the complainant, Nathan Horvat, went to the applicant’s apartment in Collingwood to buy MDMA with a mutual friend, Omar Boru (‘the initial transaction’). The complainant was told that the drugs were not there and that he would need to meet another person in Parkville to purchase them. This other person was co-accused, Mohamed Ahmed.
The complainant and the applicant left the Collingwood apartment and met the co-accused in a car park in Parkville, where a transaction took place. The complainant was given half an ounce of MDMA to try, which he did, considering it to be ‘real’. Subsequently, the complainant was told by the co-accused that he did not have the rest of the five ounces worth of drugs that the complainant had sought to purchase, and that they would need to meet again.
On 6 June 2021, the complainant again went to the applicant’s apartment with Mr Boru to buy drugs (‘the second transaction’). The applicant stated that they would again need to go elsewhere to collect them. The complainant stated that he felt the applicant was being ‘mysterious’ and not forthcoming with detail but went along regardless. At approximately 7:59pm the applicant, Mr Boru and the complainant all went to the carpark downstairs and left that location in the applicant’s vehicle.
At 8:15pm the applicant parked on Canning Street in Carlton and was joined shortly afterwards by the co-accused. The complainant, Mr Boru and the applicant all walked to the co-accused’s car, which was a Audi A4 sedan. The complainant sat in the front seat, Mr Boru in the back seat, the co-accused in the driver’s seat and the applicant stood outside, leaning through the passenger window next to the complainant.
The co-accused retrieved a bag of ‘real’ MDMA for purchase but appeared to be trying to hide another bag of drugs from view. The bag of MDMA was weighed at 46 grams, however, the complainant believed that it did not look like the drugs he had previously tested and requested a smaller amount. The co-accused asked to see the complainant’s cash, which he showed him. The applicant then became aggressive, saying the complainant was wasting his time. Fearful, the complainant exited the vehicle and the co-accused followed.
At this point it is alleged that both the co-accused and the applicant produced machetes – described as between 30 – 50 centimetres, largely coloured black but with some red, and a curved blade. The prosecution allege that the applicant then grabbed the complainant by the shirt and ripped it, before striking the complainant with a machete on his hands and forearm, making him bleed. The co-accused was standing about a metre away at the time.
As the applicant and the complainant were wrestling, it is alleged that the co-accused grabbed the complainant’s wallet and phone from his pocket. The complainant had $7,000.00 in cash for the purchase of drugs and the co-accused took $4,900.00, but dropped $150 in the process. The complainant backed away and asked for his phone, to which the co-accused responded ‘don’t come back. I will kill you’.[2]
[2]The co-accused is charged with a further make threat to kill charge.
Fearing for his life, the complainant hid for a time before flagging down a passer-by and calling ‘000’. Police arrived at about 9:00pm and observed the complainant with deep cuts to his right hand, left palm and left forearm – consistent with defensive wounds. He was transported to St Vincent’s Hospital where he had surgery.
Police seized a black sheath and $155.00 in cash from the scene and attended St Vincent’s Hospital, taking the complainant’s clothes, $2,100.00 in cash, and photos of his injuries.
On 7 June 2021, a search warrant was executed on the applicant’s apartment and his vehicle was seized, which was then transported to the Victoria Police Forensic Services Centre. The applicant was not there during the search but his partner and friend were. Call data indicates the applicant was speaking to the co-accused as well as his partner and his friend at around the time the warrant was executed. In particular, the data shows that:
· at 4:42pm the applicant called Mr Boru for 13 seconds;
· at 4:43pm the applicant called Mr Boru for two minutes and 26 seconds;
· at 4:47pm the applicant called the co-accused for 31 seconds;
· at 5:12pm the co-accused called the applicant but was not answered;
· at 5:13pm the co-accused called the applicant but was not answered;
· at 5:13pm the co-accused called the applicant for two minutes and seven seconds;
· at 5:16pm the co-accused called the applicant but was not answered;
· at 6:47pm the applicant called Mr Boru for six minutes and five seconds; and
· at 6:53pm the applicant called the co-accused for six minutes and 37 seconds.
On 9 June 2021, the applicant was arrested and transported to Melbourne West Police Station, where he answered no comment during a recorded interview. He was then charged and remanded in custody overnight.
On 10 June 2021, the complainant attended South Melbourne Police Station for picture identification, during which he selected the co-accused and applicant as his attackers.
On 10 June 2021, the co-accused was arrested during a search of his residence in Braybrook. The following items were seized:
· the complainant’s mobile phone;
· the co-accused’s mobile phone; and
· $9,705.00 in cash, comprised largely of $50.00 notes.
The co-accused was arrested and taken to Melbourne West Police Station, where a recorded interview took place. The co-accused initially denied being at the scene, but subsequently, told police he knew the applicant as ‘Arnie’, that he is one of his closest friends and that he saw the complainant the previous Friday – the date of the initial transaction.
The co-accused confirmed that he was driving a 2013 Audi A4, that the complainant had wanted to buy five bags of drugs at $1,600.00, and that a family member – Mr Boru – gave him $4,000.00 cash on the Friday. The co-accused further stated that, while he was involved in a drug transaction (it is unclear whether this refers to the initial or second transaction) with the complainant, no machetes were used.
Instead the co-accused alleged that the complainant had dragged out the deal, wanting to try the MDMA, so he and the applicant both left and the complainant leaving his phone in his car. The co-accused stated that that there were a couple of other people there at the same time as them during the second transaction, and that neither he, nor the applicant, attacked the complainant. Finally, he denied ever having a machete in his hand or saying ‘don’t come back. I will kill you’. The co-accused was arrested and remanded in custody.
On 16 June 2021, police examined the co-accused’s vehicle and blood stains were located on the driver’s side door and on the centre console. Forensic testing confirmed that the DNA is 100 billion times more likely to be the complainant’s than anyone else’s.
Evidence on the application
The application is supported by the Affidavit of Thibaut Clamart, solicitor, dated 1 August 2022, attaching a series of exhibits including CISP reports, which will be discussed below.
In addition, the applicant filed the following supplementary documents in support of his application for bail:
· a letter from Jesuit Social Services dated 3 August 2022 (discussed below);
· a report from the Neighbourhood Justice Centre dated 19 August 2022 (discussed below);
· a letter from Nick Joseph, a Family Violence Counsellor from the organisation ‘No to Violence’, dated 22 August 2022 (discussed below);
· a letter of support from Sammy Ibrahim of The Church of All Nations (undated), outlining some volunteer activity that the applicant was undertaking with the Church prior to his remand;
· a letter of support from Darren Diep, dated 1 June 2022, outlining the applicant’s volunteer work with the Dragon Den's youth boxing program in Carlton; and
· a certificate from the Department of Justice and Community Safety confirming that the applicant has completed a component of the positive parenting program since he has been held on remand.
In response, the Respondent has filed an Affidavit of Grace Zubreckyj, solicitor, dated 15 August 2022, attaching a series of exhibits. In addition, the Respondent filed a family violence risk assessment report, dated 14 December 2021, from The Department of Families, Fairness and Housing.
Oral evidence – Damien Galofaro
At the hearing of the application, the applicant called evidence from Damien Galofaro.
Mr Galofaro gave evidence that he met the applicant at Princes Hill Secondary College in Year 7 and considers him one of his best and closest friends. He confirmed that he is prepared to offer the applicant accommodation at an apartment which he owns in Coburg. He confirmed that he lives alone, and that there was no time limitation around that offer of accommodation.
Mr Galofaro confirmed that he runs a gardening and maintenance business operating in Melbourne, as well as undertaking training and study to qualify as a professional firefighter. He said that he was prepared to provide employment to the applicant three days per week as a gardening labourer, noting that the applicant had done this type of work for him in the past. He said that he had had some recent discussions with the applicant in which he indicated he was intending to obtain various certificates which would enable him to gain employment in the construction industry.
Mr Galofaro undertook to the Court to inform police in the event that he became aware of the applicant breaching any conditions of his bail.
In terms of the applicant’s connections to the community, Mr Galofaro gave evidence that he once placed soccer at a high, semi-professional level, and that he would encourage the applicant to become involved in soccer again if he were granted bail.
Mr Galofaro said he knew the applicant’s partner, with whom he shares two children. When asked about his understanding of her attitude to bail, Mr Galofaro said that he understood she wanted the applicant to have an active role in parenting their children, and that she was hopeful that ‘the rehabilitation program’ could ‘get him back on his feet’.
Cross examined, Mr Galofaro was questioned in relation to his work and training schedule. He confirmed he attends Fire Rescue training in Craigieburn from 7:00am-5:00pm four days per week.
He confirmed that he maintained consistent contact with the applicant since January 2021 to June 2021, before he was taken into custody. He said that during that time he was ‘naïve’ to what was going on in the applicant’s life due to being absorbed in his Fire Rescue training.
He said he was aware of the charges against the applicant and that he had provided surety for him on two occasions in the past.
Mr Galofaro said that he was in regular contact with the applicant’s partner. He described her relationship with the applicant as amicable, and said that he understands that she wishes to maintain a relationship where he could be a father for his children.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).
The applicant is in the category of needing to satisfy the Court of a compelling reason that justifies the grant of bail, because he is accused of a Schedule 2 offence.[3] The burden of demonstrating that a compelling reason exists is on the applicant.[4] In determining whether a compelling reason exists, the Court is obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[5]
[3]Namely, per sch 2 item 22(a) of the Act, armed robbery. See the Act, ss 4A(3), 4C(1)-(1A).
[4]The Act, s 4C(2).
[5]Ibid, s 4C(3).
If satisfied to the requisite standard that bail is justified, the Court must then move to consider the unacceptable risk test.[6] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[7] The burden of demonstrating that such a risk exists, and that it is an unacceptable one, is on the respondent.[8] In determining whether a risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[9]
[6]Ibid, ss 4C(4), 4D(1)(b).
[7]Ibid, ss 4D(2)-(3), 4E.
[8]Ibid, s 4E(2).
[9]Ibid, s 4E(3).
Finally, s 5AAAA(1) of the Act requires the Court to make inquiries of the respondent as to whether there is in force against the applicant a family violence intervention order (‘FVIO’), family violence safety notice (‘FVSN’), or another recognised domestic violence order. Two final FVIOs were made following the charges that were laid, and subsequently withdrawn, in the family violence matter. The details of these are as follows:
· the applicant is the respondent in a final FVIO naming [redacted] (his partner), [redacted] (the applicant’s children) as the protected persons. This was made in the Neighbourhood Justice Centre on 7 June 2022, for a period of five years, and contains limited conditions preventing the applicant from committing family violence against the protected persons or getting another person to do so. A letter provided by the applicant from the Department of Families, Fairness and Housing indicates that a child protective investigation had been completed and that Child Protection will not continue to be involved with his family. The FVIO does not preclude contact between the applicant and the protected person.
· the applicant is the respondent in a final FVIO naming [redacted] (the applicant’s step-father) as the protected person. This was made in the Neighbourhood Justice Centre on 22 February 2022, for a period of five years, and has full no-contact conditions.
The applicant’s personal circumstances
The applicant is 29 years old, and was 28 years old at the time of the alleged offending. He was working for SSE Personnel as a labourer one or two days a week prior to his incarceration as well as studying a Certificate III in Civil Construction (Engineering) full time. The applicant is the father of two young children.
The applicant has reported having anxiety, and in addition a problematic history of drug abuse. In particular, the applicant reported to the Court Integrated Services Program (CISP) polysubstance drug use – namely cannabis and alcohol.[10] The applicant indicated he began consuming cannabis regularly at age 18 with periods of intermittent abstinence since then. He stated that in the past two years prior to his arrest he had been consuming two grams of cannabis a day. In addition, the applicant indicated that he had been consuming at least six cans of ‘vodka Cruisers’ every second day over the past three months. He stated that the above consumption of drugs and alcohol was a product of life stressors and mental health issues. The applicant further indicated that he felt that his use of cannabis and alcohol is problematic. The applicant was referred to Australian Community Support Organisation (‘ACSO’) for assistance and referred for a standard episode of counselling.
[10]The applicant is not relying on the support of CISP in this application but has tendered prior CISP reports as Exhibit TC-10 in the Affidavit of Support.
Regarding his mental health, the same CISP report suggests that, though there has been no formal diagnosis, the applicant experiences symptoms consistent with anxiety – including feelings of worry, panic and hypervigilance. Apparently, the applicant was linked in with the Victorian Aboriginal Health Service and had attended a follow-up appointment but the writer was unaware whether a mental health care plan has been completed.[11]
[11]The applicant is not Indigenous, but his partner identifies as such.
The applicant has indicated that his family life is a significant stressor and, because of this, was referred – with his partner – to Orange Door for child and family assistance. The applicant has limited family support but the Victorian Aboriginal Child Care Association have also been engaged to assist the applicant.
The applicant resides in public housing in Collingwood and has indicated that this is a particular strain on him, as he has had numerous issues with his neighbours, especially relating to late-night police raids. This, he says, has had a particular impact on the wellbeing of his young children. The applicant indicated that he does not feel safe in his accommodation and reported a recent break-in attempt. CISP were seeking a priority transfer for the applicant to move him and his family from his current apartment, but it is unclear what the status of this is now, given CISP are no longer involved.
Following some family violence allegations the applicant was investigating independent living, but at this stage it is unclear whether this is something he will be undertaking.
Criminal history
The applicant has a criminal history, including the following:
· June 2015: the applicant was placed on a good behaviour bond (without conviction) for assault by kicking;
· December 2016: the applicant was convicted and fined $500.00 for resisting an emergency worker on duty and possessing a weapon;
· December 2016: the applicant was convicted and fined $1,200.00, along with an order for $119.90 in statutory costs; for dealing with the proceeds of crime; possessing cannabis; committing an indictable offence whilst on bail and trespass;
· September 2017: the applicant failed to appear regarding a charge of assault occasioning bodily harm in Western Australia. A warrant for his arrest was issued;
· July 2018: the applicant was sentenced to 14 days’ imprisonment for possessing methylamphetamine, cocaine and cannabis, unlawful assault and failing to answer bail; and
· March 2021: the applicant was convicted and ordered to attend a men’s behaviour change course and drug/alcohol counselling for contravening a family violence safety notice, possessing cannabis and committing an indictable offence whilst on bail.
Family violence allegations
The respondent notes that the applicant has had eleven family violence incidents reported to police about him. To the extent that these incidents resulted in any formal criminal charges (barring the above charge from March 2021, where the applicant was convicted of breaching a FVSN), these charges have all been withdrawn. However, the allegations include a range of serious allegations. Most seriously the respondent submits that police have investigated incidents where the applicant has allegedly attacked his step-father with a hammer, striking him on the head multiple times, and striking him with a knife causing a 10-15 centimetre cut on his forearm. The latter assault is alleged to have taken place in front of the applicant’s three-year-old child.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate a compelling reason to justify the grant of bail.
Strength of the prosecution case
The applicant concedes that, broadly, the prosecution case is not weak, but submits that the armed robbery charge is, however, ‘inherently weak’, as the prosecution cannot establish that the purpose of the assault was to steal money from the complainant. Further, the applicant submits that there is no evidence that the applicant shared an intention with the co-accused to steal from the complainant. Finally, regarding complicity, the applicant submits that it is not apparent how the prosecution intends to establish this under s 323(1) of the Crimes Act1958 (Vic).
Regarding Mr Boru, the applicant submits that his evidence that he did not witness the assault is inconsistent with the written statement of the complainant, along with his evidence at committal.
The applicant further submits that the complainant’s story is inherently implausible, in that the complainant alleges the applicant secreted a 30 – 50 cm machete in his pants, but the complainant did not notice the weapon prior to the alleged assault – notwithstanding that the complainant had spent 45 minutes with the applicant, had gone to his apartment and had spent time inside his car with him.
Finally, the applicant submits that self-defence will be in issue.
Availability of bail address
The applicant can reside with a childhood friend, Mr Damian Galofaro, at his home address in Coburg if bail is granted. Mr Galofaro will give evidence that this arrangement can last until December 2022.
Employment
It is submitted that Mr Galofaro is also able to offer the applicant part-time employment, the nature of which is not provided in the relevant affidavit material. During this period the applicant intends to organise his finances and (should the Court allow it) resume living with his partner or seek his own accommodation.
Special vulnerabilities
As described above, the applicant has ongoing drug and alcohol issues in addition to a possible diagnosis of anxiety. The applicant will be assessed by psychologist Warren Simmons in relation to his psycho-social history. While not applying for CISP, the applicant will rely on previous reports to outline his background and ongoing issues.
Availability of treatment or bail support services
The applicant was first assessed by the CISP on 10 June 2021 for his initial grant of bail in the Mioch matter. Reports following this assessment identified issues in relation to the applicant’s drug use and poor mental health, including a potential anxiety diagnosis. However, it does not appear that CISP will be relied upon in this application. Instead, if granted bail it is proposed that the applicant would be supported by social workers from Client Services at the Neighbourhood Justice Centre (‘NJC’).
An assessment report from NJC dated 19 August 2022 is relied upon, which recommends that the applicant engage with his general practitioner for ongoing medical and mental health needs, participate in family counselling, attend appointments with an alcohol and other drug clinician, and meet with a case manager from ‘No to Violence’. A letter from ‘No to Violence’ has been provided which indicates that the applicant was referred to Client Services on 10 February 2022, and that internal referrals will be made for the provision of the aforementioned treatment interventions.
The applicant is also supported by Jesuit Social Services’ African Visitation and Mentoring Program (‘AVMP’), which is able to offer him regular counselling in the community with a focus on reengaging with family and cultural ties, and accessing treatment needs.
Delay
The applicant submits, with reference to various decisions of this Court, that delay can constitute an exceptional circumstance in and of itself.[12] The applicant further submits that delay can rise to the level of an exceptional circumstance, whether or not it will exceed any time on remand. The applicant submits that a significant delay is likely. The applicant was committed to stand trial on 3 February 2022, and this matter is listed for a directions hearing on 8 September 2022 at the County Court. The applicant submits that County Court estimates suggest that the earliest trial date available will be in the second half of 2023. The applicant notes that this will be two years since his charge date and this may very well exceed the time he would be sentenced to should he be found to have committed the offences in question.
[12]And presumably a fortiori a compelling reason as in this case.
COVID-19 and onerous conditions in custody
The applicant submits that his time on remand has been more onerous due to COVID-19, including spending 14 days in quarantine, prohibitions on in-person visits and limited access to programs.
Unacceptable risk
In relation to the risk of failing to surrender into custody when required, the applicant notes that he has two relevant matters. First, a charge of assault occasioning bodily harm in September 2017 from Western Australia for which the applicant failed to appear and a warrant was issued. Second, in July 2018 the applicant was convicted of failing to answer bail in the Melbourne Magistrate’ Court. Besides these the applicant submits he has attended hearings in relation to this matter and all other matters since 2018.
The applicant describes his criminal record as otherwise ‘limited’ and submits that he has strong ties to this jurisdiction, namely prospective work, children, his partner and friends, making it less likely he will fail to appear or abscond.
Regarding allegations of family violence, the applicant expects the respondent to rely on this to demonstrate that he is an unacceptable risk of offending. The applicant submits that prior allegations of family violence regarding his partner and step father have not proceeded and the charges were ultimately withdrawn. Further, it is not proposed that the applicant be bailed to live with his partner, instead, the applicant seeks to be bailed to live with Mr Galofaro as a transitional arrangement. The applicant only intends to begin living with his partner upon engaging with Client Services and with the authorisation of the Court. Should this not transpire, the applicant intends to organise his own accommodation once the arrangements with Mr Galofaro conclude.
The applicant further submits that Child Protection’s involvement concluded on 18 March 2022, having investigated the applicant and any risk he may pose to his children. The applicant issued a subpoena to Child Protection regarding the risk assessment conducted which led to the closing of his file, and material was produced the Court which was released to the parties by orders of Tueno JR dated 16 August 2022. At the time of writing, no submissions have been received from the applicant regarding the extent to which that material will be relied upon for the purposes of the present application.
The applicant submits that, due to the above, the respondent will fail to discharge the burden regarding the risk of committing offences. Nevertheless, the applicant submits, should the Court find the risk to be unacceptably high, conditions of compliance with any FVIO might be imposed as a bail condition. This would make any breach of as much, even when minor, a breach of bail – giving the respondent the opportunity to apply for revocation of the applicant’s bail.
The applicant proposed bail conditions include:
· the applicant reside at [address redacted];
· the applicant is not to use a drug of dependence;
· the applicant is to report daily to the Preston police station between 6:00am and 10:00pm;
· the applicant is to comply with the lawful directions of the Neighbourhood Justice Centre’s Client Services program; and
· the applicant is to comply with any FVIO in place.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the Court as to the existence of a compelling reason that justifies the grant of bail. The respondent further submits that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and failing to surrender into custody in accordance with bail.
Strength of the prosecution case
The respondent submits that the prosecution case is not weak, and does not concede that there is no evidence that the applicant shared an intention to steal from the complainant during the course of the alleged offending.
Family support and stable accommodation
The respondent submits that the prospect of contact with a family violence counsellor or a social worker from the Neighbourhood Justice Centre does not alleviate concerns around family violence and further risks of as much towards the applicant’s son, partner and father-in-law. The applicant’s proposed accommodation/address, while mitigating the risk ‘somewhat’, would not totally alleviate these concerns. Ultimately – even with the assistance of Client Services – the proposal that the applicant might reside with his partner at any stage is opposed by the respondent on the basis that it is not suitable. Indeed, the respondent submits that the applicant has demonstrated a pattern of committing family violence against his partner and their child, and that the proposal that he may begin living with her once the initial accommodation has concluded is opposed given the risk of further family violence offending.
In relation to the response from Child Protection about the applicant’s risk to the safety of the applicant or his partner, the respondent notes that this report was produced at a point when the applicant had been in custody for four months and was presumably incapable of offending in the same way as if he was not in custody.
Availability of treatment or bail support services
The respondent notes that the applicant’s prior positive engagement with CISP was at a time when he was alleged to have committed further family violence offending, noting however, that these charges were later withdrawn. Further, the respondent submits that the applicant was allegedly involved in five family violence-related incidents during this period and that no amount of support from programs or services can properly mitigate the risk posed.
Delay and likely sentence
The respondent submits that the time on remand would not exceed any term of imprisonment, given the seriousness of the offending, including the injuries suffered by the complainant, the need for surgery and the fact that the offending is alleged to have occurred in company.
The respondent further notes that on 12 August 2021 the matters of both co-accused were listed for a seven-day trial, due to commence on 27 April 2023, months earlier than the date of July put forward by the applicant as being likely.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant may endanger the safety or welfare of other persons, especially his partner and father-in-law – noting the applicant’s history of family violence incidents. The respondent submits that police hold grave concerns for the safety of the community and the family of the applicant. Heightening this concern is the use of weapons in this matter and the alleged use of weapons in previous family violence incidents, which are also alleged to have taken place in front of the applicant’s children. The respondent acknowledges that these family violence-related charges have since been withdrawn, but submits that this does not remove the risk of future offending by the applicant. Indeed, while it is the respondent’s position that these charges were withdrawn due to a lack of cooperation by the victims, it is noted that the intervention orders have not been withdrawn and that two are now final FVIOs. The respondent submits that, given the above, no bail conditions, regardless of how onerous, would sufficiently mitigate the risk posed by the applicant to the community.
Committing an offence whilst on bail
The respondent submits that the applicant may commit further offences if granted bail, given his prior criminal history, which includes contraventions of family violence orders and committing indictable offences whilst on bail. Similarly, the respondent notes that the applicant has been previously obliged to comply with intervention orders but has had a further three family violence incidents take place during that time.
Failing to surrender into custody
The respondent submits that the applicant may be a risk of leaving the jurisdiction given his interstate criminal history. The applicant has an outstanding active warrant for his arrest in Western Australia from 7 September 2017, for failing to appear in relation to a charge of assault occasioning bodily harm. The respondent submits that this is illustrative of the applicant’s attitude towards court orders and heightens the risk that he may not surrender himself into custody when required.
Analysis and conclusions
Compelling reason
The phrase ‘compelling reason’ is not defined in the Act. In Rodgers v The Queen, Beach, Kaye and Ashley JJA summarised the relevant principles, as follows:[13]
(1)For an applicant for bail required to show a compelling reason, 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.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is difficult to resist.[14]
[13][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[14]Ibid, [43] (footnotes omitted).
The applicant has the burden of establishing the existence of a compelling reason that justifies a grant of bail. The applicant has put forward the following factors in combination as establishing a compelling reason why he should receive a grant of bail.
Strength of the prosecution case
The applicant argues that there may be some impediments to the prosecution establishing the applicant’s criminal liability when considerations of complicity are taken into account. The applicant points to the apparent implausibility of some aspects of the complainant’s version of events, pointing to descriptions of the particular weapon said to have been involved. On the other hand, the respondent argues the case is not weak and does not concede a lack of evidence regarding the applicant’s shared intention to steal from the complainant.
In my opinion, it cannot be said that the case put forward by the prosecution is inherently weak and foredoomed to fail. It is not the role of this Court, of course, to try the issues, but to take an overall view of whether the case perhaps might be regarded as weak or strong. The applicant has submitted that there are triable issues to be considered. It appears to me on the basis of the materials before the Court at this stage, there is at least an arguable case on the part of the applicant.
Delay
As previously stated, the applicant’s matter is listed on 27 April 2022 for a seven-day joint trial. This is not a case where the extent of the delay that will take before the resolution of these matters is unknown or too difficult to predict with certainty. There is a trial date set resulting in the applicant’s trial being heard in approximately eight months’ time.
Whilst acknowledging that the applicant has already been in custody for quite a number of months, in the circumstances I do not regard the anticipated delay from this point to be inordinate. I am of the opinion that if the applicant is found guilty of the offence with which he is charged, this is not a case where it could be said with any degree of certainty that the applicant’s time on remand will likely exceed the sentence to be imposed. He has a significant list of prior convictions, including for assault, family violence matters, committing indictable offences whilst on bail, and in one instance is alleged to have resisted an emergency worker on duty and possessing a weapon.
Furthermore, I note he is currently charged with an assault occasioning actual bodily harm in Western Australia dating back to around 2017, with a warrant for his arrest being issued, but apparently not executed. And I indicate that I have not taken this matter into account in making a decision on this application because in the end, it seems to me to be quite uncertain as to the status of that particular matter.
Availability of bail address, employment and other supports
It seems to me that the availability of protective factors including a suitable bail address, employment and other supports has turned out to be the major feature of this application. I have had regard to the evidence of Damian Galofaro, a long-time friend of the applicant, who has offered the applicant employment in his business, a static address at which to live, and of some importance, ongoing support and friendship to the applicant. Mr Galofaro appears committed to the wellbeing of the applicant into the future and appears willing to support him in a general sense. I consider the evidence of Mr Galofaro to be forthright, honest and credible.
Mr Galofaro indicated that should the applicant receive a grant of bail, he is prepared to report him to the appropriate authorities if he became aware that the applicant was in breach of his conditions of bail. I accept that undertaking on the part of Mr Galofaro, and I also accept the sincerity of his intentions towards the applicant’s wellbeing and future.
I also take into account that Mr Galofaro has previously given evidence before the County Court bail judge and at that stage, the assistance he was offering was only by way of employment. In the present application, Mr Galofaro is offering not only employment but also a stable address, as well as direct supervision and support in the community.
I also take into account that there are other supports available within the community as discussed above, including the support offered by the Neighbourhood Justice Centre and Jesuit Social Services.
Conclusion – Compelling reason
Taking into account all of the surrounding circumstances as required under the Act, I am satisfied that the applicant has established a compelling reason why he can receive a grant of bail. I have considered all of the circumstances in combination in coming to this decision.
I indicate that the support offered by the applicant’s longstanding friend Mr Galofaro has been of particular importance in forming the view that I have that the compelling reason test has been satisfied. This conclusion is combined with the other supports available as discussed, including those offered by Jesuit Social Services and the Neighbourhood Justice Centre Program.
Unacceptable risk
Having reached the conclusion that the compelling test has been satisfied, that is of course not the end of the matter. The Act requires me to consider whether in all the circumstances the applicant represents an unacceptable risk as contemplated by the Act.
In my opinion, stringent bail conditions can be attached to a grant of bail so as to ameliorate risk to an acceptable level. In reaching that conclusion I have taken into account all of the surrounding circumstances, including the matters discussed above in relation to the compelling reason test.
I therefore order that the applicant be admitted to bail on his own undertaking and on the following special conditions:
a)He attend the County Court of Victoria on 8 September 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
b)He reside at [redacted], and not change that address without the leave of the Court.
c)He remain at those premises between the hours of 10:00pm to 6:00am each day for the duration of bail.
d)He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
e)He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Preston, or his or her nominee, between the hours of 7:00am to 9:00pm.
f)He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
g)He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
h)He report to the Neighbourhood Justice Centre within two working days after being released from custody on bail.
i)He comply with all lawful directions of any officer of the Neighbourhood Justice Centre and attend all appointments as directed.
j)He comply with any current family violence intervention orders made against him.
k)He not contact, directly or indirectly, the co-accused, being Mohamed Ahmed, for the duration of the bail period.
l)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
m)He not leave the State of Victoria.
n)He surrender any passport he may have to the informant within 24 hours.
o)He not attend any points of international departure.
p)He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 3 November 2022, and any further dates this Court appoints during the course of this order.
q)He possess and use only one mobile phone and provide the Informant with the phone number within 24 hours of obtaining same.
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