Re Amr

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0076

IN THE MATTER of the Bail Act 1977

– and –

IN THE MATTER of an application for bail by OMAR AMR

BETWEEN:

OMAR AMR	Applicant
– and –
VICTORIA POLICE	Respondent

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2023
DATE OF JUDGMENT:	14 June 2023
DATE OF REASONS:	14 June 2023
CASE MAY BE CITED AS:	Re Amr
MEDIUM NEUTRAL CITATION:	[2023] VSC 328

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CRIMINAL LAW — Application for bail — Charges relating to obtaining financial advantage by deception, making and using false documents, driving offences, drug offences — Applicant on bail and CCO at time of alleged offending — Significant criminal history — Acquired brain injury and neurocognitive disorder — History of drug addiction — Previously on bail and required to engage in drug treatment — Exceptional circumstances not shown — Unacceptable risk established — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	M Sturges	SLKQ Lawyers
For the Respondent	G Carr	Victoria Police

HIS HONOUR:

Introduction

This is an application for bail by Omar Amr [‘the applicant’]. The applicant is a 32‑year‑old man who has an established neurocognitive disorder, secondary to a traumatic brain injury sustained in a car accident in his late teens. He has been on remand since 27 February 2023, after being arrested by Detective Senior Constable Nicholas Fiedler [‘the Informant Fiedler matters’]. The applicant has been charged with 17 offences arising out of the Informant Fiedler matters:

(a) obtaining a financial advantage by deception;

(b) attempting to obtain a financial advantage by deception;

(c) making a false document;

(d) using a false document (noting that the charge sheet does not contain the date or place of the alleged offence);

(e) failing to display a rear ‘P plate’;

(f) failing to display a front ‘P plate’;

(g) failing to stop when requested by police;

(h) recklessly damaging an emergency services vehicle;

(i) careless driving;

(j) assaulting an emergency worker (two charges);

(k) resisting arrest;

(l) possessing a drug of dependence (methylamphetamine);

(m) possessing identification information to commit indictable offence (although an incorrect section of the Crimes Act 1958 (Vic) has been provided for this charge);

(n) dealing with suspected proceeds of crime;

(o) committing an indictable offence whilst on bail; and

(p) refusing to allow sample of blood after an accident.

At the time of the alleged offending in the Informant Fiedler matters, the applicant was on police bail for 15 charges filed by Senior Constable Liam Steele on 31 July 2022 [‘the Informant Steele matters’]. Those charges are:

(a) trafficking a drug of dependence (1-4 butanediol);

(b) possessing a drug of dependence (1-4 butanediol);

(c) possessing a drug of dependence (methylamphetamine);

(d) possessing a drug of dependence (heroin);

(e) dealing with suspected proceeds of crime;

(f) possessing a Schedule 4 poison (Viagra);

(g) possessing cartridge ammunition without a licence/permit (although I note that the charge sheet specifies the wrong legislation);

(h) negligently dealing with proceeds of crime (seven charges); and

(i) possessing a fraudulent driver’s licence.

Further, and also at the time of the alleged offending in the Informant Fiedler matters, the applicant was serving a two‑year Community Correction Order [‘CCO’] imposed by the County Court on 15 August 2022, following his conviction for the following offences:

(a) trafficking a drug of dependence;

(b) dangerous driving while pursued by police;

(c) dealing with suspected proceeds of crime; and,

(d) unlicensed driving.

The conditions of the CCO required the applicant to undergo supervision, assessment, treatment and judicial monitoring, that is, a direct degree of supervision by a judge. His licence was also cancelled and he was disqualified from driving for 12 months, which meant he was disqualified from driving until at least mid‑August 2023.

On 4 April 2023, the applicant was refused bail in the Informant Fiedler matters in the Ringwood Magistrates’ Court, on the basis that he failed to demonstrate exceptional circumstances, and — if granted bail — that he posed an unacceptable risk of committing an offence, endangering the safety or welfare of any person, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with conditions of bail.

It is understood that, also on 4 April 2023, the Magistrate revoked the applicant’s bail in the Informant Steele matters, such that it follows the applicant now seeks bail in relation to the Informant Fiedler and Informant Steele matters. Counsel for the applicant informed the court that the Informant Steele matters have effectively resolved, with the more contentious charges likely to be withdrawn. Both matters presently before this court are next listed in the Ringwood Magistrates’ Court on 26 June 2023 for contest mention.

The alleged offending
The Informant Steele matters

At 11:00pm on 31 July 2022, police executed a search warrant at a hotel room in Scoresby, where the applicant and his partner, CR, were staying.

A search of the hotel room found:

(a) 1.6 grams of heroin, 7.1 grams of methylamphetamine, six Viagra pills, a bottle containing 600 ml of 1‑4 butanediol, and two bottles with unspecified amounts of 1‑4 butanediol;

(b) numerous stolen and fraudulent bank and identification cards;

(c) a single 9 mm bullet; and

(d) a set of keys to a Hyundai that was in the hotel carpark. When searched, $11,000 cash was found in an envelope in the glove box of the Hyundai.

The applicant and CR were taken to Knox Police Station. CR was released without charge.

During a record of interview, the applicant made full admissions to possessing the drugs found in the hotel room, but denied trafficking them. The applicant stated that he knew nothing about the fraudulent identification or the bullet. He was charged and bailed by police.

The Informant Fiedler matters

On 21 February 2023, the applicant is alleged to have hired a Mazda from a car‑share website using a falsified driver’s licence.

On 25 February 2023, he advertised the car for sale online using false identification details. He was contacted by an interested party, RH, and agreed to meet him to discuss the sale the following day.

On 26 February 2023, the applicant, CR, and RH, met in Glen Waverley. RH inspected the Mazda, but upon finding unrelated Audi logbooks in the glovebox, became suspicious and decided not to pursue the purchase.

That same evening, the applicant messaged RH and pleaded with him to buy the Mazda, offering to drop the price. The parties arranged to meet at the Chirnside Park McDonald’s the following day.

At 2:20pm on 27 February 2023, the applicant arrived at Chirnside Park McDonald’s in the Mazda — as arranged with RH — and entered the drive‑through. He is said to have held a probationary license at the time, but did not have ‘P plates’ displayed on the Mazda.

While the applicant was in the drive‑through queue, two unmarked police cars blocked him from the front and back and flashed their lights. On realising that his car had been prevented from driving away, the applicant reversed into the unmarked police car behind him and then drove forward, with his car striking the unmarked police car in front. The Mazda became wedged between the two unmarked police cars. It is alleged the applicant continued to accelerate forward, attempting to escape.

Police approached the Mazda but the applicant refused to get out, allegedly continuing to try to drive away while police attempted to extricate him. The applicant was capsicum sprayed and subdued and then taken out of the car. Police searched the Mazda and found:

(a) a bag of white powder, believed to be methylamphetamine;

(b) numerous stolen and fraudulent identification cards; and

(c) a laptop and two mobile phones.

During his arrest, police allege the applicant was aggressive and asked for medical attention. He was conveyed to the Maroondah Hospital and while there refused to provide a blood sample. He was deemed too aggressive to be interviewed.

The applicable legislation
Guiding principles

When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).

(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.

(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

In the applicant’s affidavit in support of this application, dated 26 April 2023, the applicant’s solicitor asserted that the compelling reasons test applies. This submission was withdrawn during the hearing, and it was conceded that the exceptional circumstances test is the appropriate test in the circumstances. In my opinion, this concession was correctly made. The applicant is alleged to have committed a Schedule 2 offence while on bail for other Schedule 2 offences and while on a CCO for Schedule 2 offences. By virtue of section 4AA(2) of the Act,[2] the exceptional circumstances test applies in this application.
[2]See ss 4AA(2)(c)(i) and 4AA(2)(c)(iv) respectively.

Step 1 — the exceptional circumstances test

The applicant bears the onus of proving to the requisite standard that exceptional circumstances exist to justify the grant of bail.[3] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[4]
[3]The Act, ss 4A(1A)–(2), 4C(1A)–(2).
[4]Ibid s 4A(3).

Step 2 — the unacceptable risk test

If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[5] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that this risk is an unacceptable one.[6] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[5]Ibid ss 4A(4), 4D(1)(a).
[6]Ibid s 4E(1)–(2).
[7]Ibid s 4E(3).

The applicant’s personal circumstances

The applicant is a 32‑year‑old man. He is the eldest of three children, born of parents who immigrated to Australia from Egypt.

At around the age of 18, the applicant was hit by a bus which resulted in significant injuries. He was airlifted to hospital where he remained for a number of weeks and suffered damage to his spine, ribs and head — resulting in an acquired brain injury [‘ABI’]. He sustained permanent injury from the accident and his personality is said to have changed significantly as a result, making him more impulsive and less able to predict the consequences of his actions.

Notwithstanding a positive and stable home environment, the applicant began using cannabis to cope with the pain following his accident. This eventually escalated to the use of other illicit substances, including methylamphetamine, oxycodone, GHB, benzodiazepines and cocaine, as well as alcohol.

The applicant has a neurocognitive disorder as a result of his ABI, which affects his memory (especially his short term memory) and learning ability. He also has dyslexia and dysgraphia, and diagnoses of depressive disorder, chronic post‑traumatic stress disorder [‘PTSD’] and chronic poly‑substance abuse disorder.

The applicant engaged in intensive drug treatment between November 2021 to June 2022 (pursuant to a court order), and reportedly maintained a period of abstinence during this time. However, from June 2022, the applicant experienced a number of stressors, including his parents separating, his grandmother being diagnosed with cancer, and his partner having a miscarriage. In this setting, and in particular the loss of his unborn baby, the applicant relapsed into substance use. Some of these matters are reflected in a handwritten letter provided to the court on behalf of the applicant, and appearing to be authored by him.

The applicant remains in a relationship with his partner, which he reports — though stressful at times — is his source of motivation to be free from addiction. His partner is currently pregnant.

Criminal history

The applicant has a very significant criminal history, commencing in the Children’s Court in 2009. It is comprised mainly of dispositions for offences involving drugs (trafficking, possession and use), assaults, weapons offences, threats, hindering and resisting emergency workers, dishonesty, driving/traffic offences, and numerous bail offences and breaches of court orders (including community‑based sentences). The applicant has been subject to a number of terms of imprisonment as a result of these offences. In a previous application for bail by the applicant in 2018, it was noted that the applicant’s prior criminal history:[8]

… demonstrates an ongoing pattern of anti-social conduct from 2009 to these most recent events. His offending appears to have continued largely unabated. In the longer term, unless the cycle of criminality is broken, there is a risk that he will continue to offend, and present an ongoing and long term risk to the community.

[8]Re Amr [2018] VSC 186, [49] (Champion J).

In that instance the applicant was granted bail with a condition that he was to attend an inpatient residential rehabilitation facility, Arrow Health, for the purpose of treatment of his drug related issues. The program also included a period of outpatient aftercare, as required.

The applicant’s contentions

The applicant relies on the following matters, in combination, to show exceptional circumstances and justify the grant of bail.

Surrounding circumstances
Strength of the prosecution case

The applicant notes that the Informant Steele matters have effectively resolved to pleas of guilty, but submits that there are number of triable issues with respect to some the informant Fiedler charges — which will be contested.[9]
[9]Namely, make false document, evade police, recklessly damage emergency service vehicle, assault emergency worker and refuse to allow sample of blood after an accident.

Criminal history

The applicant concedes that he has a relevant and significant criminal history.

Bail compliance history and outstanding matters

Further to the bail application in this court as noted above, the applicant was later granted further bail in this court by Justice Coghlan in November 2021, in relation to the offences for which he is currently serving a CCO, later imposed in the County Court.[10] The applicant’s conditions of bail at that time required him to engage in drug treatment (initially through Australian Intensive Rehabilitation, and later through Australian Forensic Therapeutic Rehab [‘AFTR’]), which the applicant submits he complied with. He contends he “immersed” himself in treatment during that period. The applicant states he found AFTR to have been of great assistance in his drug rehabilitation journey.
[10]Re Amr [2021] VSC 743 (Coghlan JA).

The applicant also acknowledges that he was subject to a CCO at the time of the alleged offending in the Informant Fiedler matters. He submits that he had complied with the CCO up until the date of his arrest on 27 February 2023. An email from Corrections Victoria dated 7 March 2023 indicates that, while there were some issues with non‑compliance, the applicant would continue to have access to the supports on his CCO if he were to be granted bail.

A further affidavit dated 24 May 2023 and filed with the court was provided by the applicant’s solicitor, Ms Celine Khoury, which exhibited an email from Nicholas Taylor, an Advanced Case Manager, Community Correctional Services, at the Department of Justice and Community Safety. Mr Taylor stated in the email that should the applicant be granted bail, Community Corrections Services would be willing to permit the applicant to continue on his order. Should the applicant fail to comply with the terms of the CCO, Mr Taylor indicated that this permission would be revoked. Mr Taylor also noted that there would be a delay in re‑establishing referrals with the services that the applicant had previously engaged with, during which the applicant would need to self‑manage.

Family support and stable accommodation

The applicant submits that he has strong ties to the jurisdiction, having lived in Melbourne his entire life. He is supported by his parents and siblings, as well as his partner. If bail is granted, he proposes to live with his parents at an address in Springvale South. The applicant’s counsel emphasised in written submissions that the longstanding support of the applicant’s family does not diminish the value and importance of such support.

The applicant’s partner is also pregnant with the applicant’s child. In a letter addressed to the court, the applicant states that he believes that the extensive support network available to him, and the imminent arrival of his child, puts him in a strong position to continue the work he did on the last occasion he was on bail, learn from his mistakes and support his partner through her pregnancy.

The applicant’s father, Mr Gad Amr, gave evidence to the court. Mr Amr was supportive of the treatment program proposed for his son, and stated that his son was very happy about the prospect of becoming a father. Mr Amr opined that his family was religious, that drugs were not allowed in the family home, and that his sons were generally “very good boys”. He stated he would contact the police were he to discover that the applicant had brought drugs into the home or breached any other bail conditions that could be imposed.

Special vulnerability

The applicant relies on a number of reports that detail his vulnerabilities stemming from his cognitive condition and mental health diagnoses. In a report dated 24 March 2023, psychologist Dr Joseph Poznanski (who has been meeting with the applicant on a semi‑regular basis since the applicant was granted bail by Justice Coghlan in November 2021) confirmed the applicant’s current diagnoses as neurocognitive disorder with behavioural disturbance, unspecified depressive disorder with mixed features and chronic PTSD. In speaking to the permanency of these conditions, as well as their intersection with the applicant’s history of substance use, Dr Poznanski commented:

For [the applicant] the Neurocognitive Disorder due to Traumatic Brain Injury and Chronic Post‑Traumatic Stress Disorder are permanent conditions. To my knowledge [the applicant] has been abstaining from accessing and using illicit stimulants (i.e., Methamphetamine). Over the entire year of 2022, there has been a positive behavioural change which also contributed to the stabilisation and reduction of negative impacts of his Neurocognitive Disorder.

Availability of treatment or bail support services

The applicant has been attending regular sessions with Dr Poznanski since November 2021, in order to address and manage his mental health and cognitive condition, and resultant behavioural issues. While the applicant has missed some scheduled sessions with Dr Poznanski, overall his attendance has been positive (missing only three out of 20 scheduled appointments). In a report dated 24 March 2023, Dr Poznanski indicated that he is willing to continue treating the applicant if he is granted bail, and made the following recommendations in relation to future treatment and risk management:

6. How best to manage [the applicant’s] condition/s in relation to the risk of future offending?
[The applicant] needs a rigorous expectation imposed by the Court that he attends drug and Alcohol program, sessions with his forensic psychologist, and sessions with me. I am happy to provide relationship counselling, however, it would be more appropriate for him and [his partner] to attend a separate couple counselling sessions with a professionally trained relationship psychotherapist. Also, I believe that there needs to be more coordinated reporting undertaken in relation to the Community Corrections Order. One option would be for me to maintain regular gathering of data from treatment service providers about attendance and progress and to submit this information on a monthly basis to the appointed Corrections Officer at Corrections Victoria.
7. What do you propose in terms of treatment should [the applicant] be released on bail?
I believe that [the applicant] has been doing well since his release from jail in October 2021. It seems his behaviour has gone ‘off the rails’ so to speak, because of the stress that he has experienced in the context of his relationship with [his partner]. Now that he sees himself as a father to be, he is more desperate to succeed as a father and a partner. [The applicant] has never been in a relationship before, and this is a new experience for him that presents many emotional challenges for [him].
I believe that if the treatment options specified in Point 6 are put in place [the applicant] should be released on bail.

In oral evidence, Dr Poznanski stated he was willing to work alongside the team at AFTR to support the applicant, were he granted bail, and strongly agreed that this would be necessary. In terms of proposed treatment, Dr Poznanski suggested that the applicant would benefit from consistent weekly contact with a psychologist, and being prescribed an appropriate antidepressant for his PTSD. These interventions would be aimed at regulating the applicant’s hyperarousal. Dr Poznanski also noted the applicant had expressed relationship issues to him and suggested he could benefit from a referral to a relationship counsellor.

In addition to ongoing counselling with Dr Poznanski, the applicant also proposes to re‑engage with the AFTR outpatient program, which would include daily attendance at the program over 84 days, with 28 intensive days and 56 less‑intensive days. The treatment would focus on developing positive coping mechanisms and sustainable behavioural change, based on a psychological treatment model. The applicant would be required to participate in daily alcohol and other drug check‑ins and counselling, three‑times weekly supervised urine drug screens, twice‑weekly psychology sessions, three‑times weekly cognitive behavioural therapy and acceptance and commitment therapy, amongst other things. Some of these urine tests would be scheduled whilst others would be random. After completion of the program, the applicant would then have access to a free, daily aftercare program, which the applicant could continue to access for as long as needed.

Mr David Millar, the lead program facilitator at AFTR, also gave oral evidence. Mr Millar strongly recommended that AFTR collaborate with Dr Poznanski, to determine a treatment program for PTSD that takes into account the applicant’s substance use disorder diagnosis. It was highlighted that this recommendation was not in place when the applicant was last assessed by AFTR in October 2021, as AFTR was not aware at that time of the applicant’s PTSD diagnosis. Mr Millar noted that AFTR offers continuing support for clients after they have completed set programs, to assist in their long‑term abstinence goals. The applicant ceased to engage with this ongoing support after a limited time, during his last grant of bail, as his participation had been optional. Mr Millar recommended that the applicant’s continuing engagement be mandated if bail were granted. In his view, mandatory attendance in combination with a tamper‑proof GPS tracker would reduce the likelihood of relapse.

Mr Millar stated he would have no hesitation in making an undertaking to the court that were the applicant to return a positive urine screen, or breach one of his bail conditions or, further, breach one of AFTR’s internal terms and conditions of admission, he (or others at AFTR) would notify the court and/or the informant immediately.

In addition, the applicant submits that he has received NDIS support over the course of the past year, and that this will continue to be available to him should he be released on bail. Supporting evidence from the NDIS was not made available to the court. Mr Millar stated in cross‑examination that the fee for the AFTR program would initially be covered by the applicant, but that NDIS funding was being sought to cover this treatment.

The applicant submits that, while he has been given many opportunities in the past, he has the ability to stay off drugs, and that his prospects of rehabilitation rest on his capacity to do so. A letter from Reilly Bromfield, an alcohol and other drug [‘AOD’] clinician at Barwon Prison, states that the applicant has engaged in an orientation session whilst in custody and is “highly motivated” to engage in AOD treatment whilst at Barwon Prison.

Documents were also tendered in relation to the applicant’s self‑referral to a bail support program named BailSafe Australia. The applicant was assessed by Mr Jackson Oppy, the director of that organisation. In this cache of documents, Mr Oppy discusses the assessment undertaken and the supports that would be available to the applicant if granted bail.

In oral submissions, counsel for the applicant submitted that there was duplication between what might be provided by BailSafe and the AFTR program, but that BailSafe would provide an additional layer of oversight, including GPS tracking and a specific application that would offer authority to the informant to monitor the applicant’s compliance with bail, specifically curfew and the like. Mr Oppy did not give evidence at the hearing.

The applicant also relies on an email from Gareth Commins, the Relink Reintegration Coordinator at Port Philip Prison. Mr Commins previously assisted the applicant to apply for drug and alcohol residential rehabilitation in November 2021. Given the lengthy waitlist for these programs, a reply was not received until March 2023, at which time the applicant had been remanded in a different prison. Mr Commins was not aware the applicant had re‑entered the prison system, resulting in the application with the Maroondah Addictions Recovery Project [‘MARP’] lapsing. Whilst Mr Commins has tried to facilitate a referral to the MARP, there is a lengthy waitlist and the applicant is unlikely to be able to access residential rehabilitation.

Delay

The applicant submits that there are triable issues with respect to some of the charges in the Informant Fiedler matters and that, if they are unable to resolve, they will likely proceed to a contest mention and then a contested hearing. This, it is submitted, will add further time to the three months the applicant has already spent in custody.

In written submissions, the applicant stated that he delay is likely to extend into 2024 before a contested hearing can proceed.

Surety

The applicant’s father, Mr Amr, is able to provide a “modest” surety of $3,000 by way of bank cheque. In an affidavit sworn on 18 May 2023, the applicant’s father deposed that he understands the obligations of a surety and that the surety could be forfeited in the event that the applicant were granted, and breached, bail. This was confirmed by Mr Amr in oral evidence.

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, including that the applicant:

(a) reside at (address redacted) Springvale South VIC 3172;

(b) report daily to the Dandenong Police station;

(c) abide by a curfew between 9:00pm – 6:00am;

(d) provide a surety of $3,000;

(e) not leave Victoria;

(f) not leave Australia;

(g) not attend any points of international departure;

(h) not contact any witnesses for the prosecution except the informant;

(i) comply with all directions of David Millar from AFTR;

(j) comply with all directions of Dr Joseph Poznanski; and

(k) comply with all directions in accordance with his CCO.

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 that exceptional circumstances exist. Further, even if exceptional circumstances were to be found, the respondent submits that the applicant — if granted bail — poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence, interfering with a witness or obstructing the course of justice, and failing to surrender into custody in accordance with conditions of bail.

Surrounding circumstances
Nature and seriousness of the alleged offending

The respondent submits that it is open to the court to find that the alleged offending is serious, on the basis that the applicant tried to deceive a person out of more than $30,000 by selling them a stolen car, and that he placed police and members of the public at risk of serious danger in his attempts to evade arrest. It is submitted that the seriousness of these events is compounded by the applicant’s history of committing similar offences.

Strength of the prosecution case

The respondent submits that a number of factors fortify the case against the applicant, namely: statements from witnesses, emails and text messages from the applicant, false identification documents being found in the applicant’s possession, and the arrest being captured on CCTV.

The court was provided with a copy of the CCTV footage exhibited to an affidavit affirmed by Nathan Watt on 5 June 2023. The footage shows the applicant paying for an order at the McDonald’s drive through, when two unmarked police cars arrive and box his vehicle in. The applicant is shown reversing slowly into the police car behind him, before driving forward and hitting the car in front. At the same time, two police officers approach his car and order him to get out. One officer seizes the applicant’s right hand through the open window next to the driver’s seat, while the other proceeds to smash in the window next to the front passenger seat. Three additional officers attend and assist in dragging the applicant out of the car. The applicant resists this process, before he is subdued on the asphalt.

Criminal history and previous bail compliance

It is submitted that the applicant has a significant and relevant criminal history, including for drug, violence, dishonesty, bail and serious traffic offences.

Outstanding matters

The respondent notes that the applicant was both on bail and a CCO at the time of the alleged offending in the Informant Fielder matters. It is noted that the email relied upon by the applicant from Corrections, dated 7 March 2023, indicates that the applicant either did not attend, or did not engage satisfactorily, with five out of 15 supervision sessions on the CCO. The same email also notes that the applicant did not initially attend when required to produce a urine sample, and later failed a urine test — including by providing a sample that was not consistent with human urine.

Family support and stable accommodation

The respondent notes that the applicant’s partner, CR, was present at times during the alleged offending in both remand matters.

The respondent also notes that, on 18 March 2023, the applicant and CR were overheard discussing smuggling drugs into the applicant’s prison. The following day, CR went to visit the applicant in prison and was strip‑searched, at which time 46 strips of buprenorphine were found inside her underwear. CR has been charged in relation to this incident and released on bail.

On this basis, the respondent submits that the applicant’s partner is unlikely to be a protective factor in helping him to avoid using drugs or committing offences, if he is granted bail. Further, under cross‑examination, Dr Poznanski acknowledged that the applicant’s intention to maintain his relationship with CR is concerning, as the relationship appeared to be causing the applicant stress, for which his coping mechanism is drug use.

The respondent does not dispute that the applicant otherwise has a supportive family, and notes in particular that the applicant’s father, Mr Amr, offered to provide a surety in this matter. However, the respondent submits that the applicant appears to have always had access to a supportive family, and that it has not stopped him from committing offences.

Further, the respondent submits that there is evidence the applicant’s father was completely unaware of the applicant’s extensive offending at the time it was occurring. Under cross‑examination, Mr Amr admitted that the first he had heard or seen of the applicant’s criminal behaviour was when the charges were ventilated in open court. He further stated that he had observed “nothing at all” that made him think the applicant was suffering from drug addiction. On the basis of this evidence, the respondent submits that Mr Amr showed “little awareness or insight into the applicant’s behaviour”, with the result that Mr Amr’s support and the surety offered by him provided “little assistance” that the applicant would not reoffend.

Special vulnerability and availability of treatment and bail support services

The respondent does not dispute the applicant’s diagnoses, and acknowledges the supports available to the applicant through Dr Poznanski and AFTR if bail is granted. However, the respondent notes that the applicant had access to a range of supervision and supports at the time of the alleged offending — including through his CCO — and had met with Dr Poznanski twice in the weeks leading up to his arrest in February (notwithstanding the affidavit in support suggesting the applicant had not seen Dr Poznanski for some time prior to the alleged offending). On this basis, it is the respondent’s position that the court can have no confidence that the applicant will comply with conditions of bail, if bail is granted.

Further, during cross-examination of Mr Millar, the respondent queried whether AFTR would assist the applicant in getting to and from the treatment centre during each day of the program. Mr Millar stated that AFTR would not provide the applicant with any transport, and that it was expected the applicant would use public transport to get to and from the AFTR centre. Mr Millar also confirmed under cross‑examination that the effectiveness of AFTR’s program will depend on whether the applicant is engaged, fully participates and abstains from drugs and alcohol.

Complainant’s views on bail

The complainant has been consulted and indicated that he believes that the applicant is likely to reoffend and should not be granted bail. He also described some concerns regarding retribution should the applicant be released.

Delay and likely sentence

The applicant’s matters are next listed in Ringwood Magistrates’ Court for a contest mention on 26 June 2023. The respondent made enquiries with the court as to the likely timeframe for listing a contested hearing, and was informed that contested hearings are being listed for January and February 2024. In the respondent’s submission, the applicant is therefore likely to experience a delay of approximately six months from contest mention to final hearing. It was submitted that a delay of this length was not “exceptional”.

Further, the respondent contended that — having regard to the seriousness of the alleged offending and the applicant’s extensive criminal history — the applicant is likely to face a lengthy term of imprisonment, in excess of 12 months, if convicted. On this basis, the respondent submits that the applicant’s time spent on remand is unlikely to outweigh any ultimate sentence.

Unacceptable risk

The respondent alleges that the applicant, if released, poses an unacceptable risk in three ways.

Endangering the safety and welfare of any person

In the respondent’s submission, the main risk in this application is that, if the applicant is release, he will commit further offences that will significantly danger the community. The respondent notes that the applicant has an extensive history of engaging in behaviour that places the safety of the public at risk. It is submitted that he is likely to engage in reckless and dangerous behaviour and avoid arrest at all costs, regardless of any court orders. It is noted in particular that, in the Informant Fiedler matters, the applicant did everything he could to avoid arrest despite significant risk to the public.

During cross-examination, the respondent put to Mr Millar that the applicant’s risk to himself and others is directly correlated to his drug use. Mr Millar agreed, and stated that it was a “fair assessment” that, if the applicant was bailed and continued to engage in drug use, he would pose a danger to himself and others. These comments were said to support the respondent’s submissions concerning the applicant’s risk of endangering the safety of the community.

Committing an offence whilst on bail

The respondent notes the applicant’s criminal history includes multiple dispositions for bail offences and other breaches of court orders, and that the applicant was on bail and a CCO at the time of the alleged offending in the Informant Fielder matters. It is submitted that the applicant has shown that he is a recidivist offender, irrespective of what court order or conditions are imposed on him.

Interfering with a witness or otherwise obstructing the course of justice in any matter

The respondent is concerned that the applicant will attempt to contact the complainant and pressure him into not being involved in the prosecution process.

Failing to surrender into custody in accordance with the conditions of bail

The respondent submits that, while the applicant has no convictions for failing to answer bail,[11] he has previously been issued with two bench warrants (in 2011) which demonstrate an inability to attend court as required.
[11]According to the applicant’s criminal history, he was convicted of fail to answer bail on 6 June 2011.

Analysis and conclusions
Introduction

As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail. If he succeeds in doing so, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated by the imposition of any bail conditions.

In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the surrounding circumstances. Further, the court must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.

With these factors in mind, I turn to considering the merits of the application. In doing so, it is well accepted that the applicant can rely on a combination of factors, and in this application he has done so.

Has the applicant shown that exceptional circumstances exist?
Strength of the prosecution cases

With respect to the strength of the prosecution cases, it appears that the Informant Steele matters have resolved to a number of pleas of guilty. These charges involve the possession of a number of different types of drugs, numerous stolen and fraudulent bank and identification cards, along with a substantial amount of cash being located. Given the applicant’s previous background, these charges alone must be regarded as amounting to serious offending.

With respect to the Informant Fiedler matters, these involve a wider constellation of offences, including deceptive conduct, driving offences, failing to stop when requested by police, recklessly damaging an emergency services vehicle, assaulting emergency workers, possession of a drug of dependence, dealing with suspected proceeds of crime, and refusing to allow a sample of blood after an accident. It is notable that some of the alleged conduct was recorded on CCTV, that being conduct that involved the violent use of a moving motor vehicle to attempt to escape police custody.

The court was informed that the Informant Fiedler matters remain contested at this stage. It is not the role of this court to engage in a detailed analysis of the strengths and weaknesses of the prosecution case with respect to these matters, that being a task for later finders of fact in respect of any contested matters. However, in my opinion it is open for this court to conclude that the prosecution case does not appear to be inherently weak, or foredoomed to fail. There would appear to be a reasonable prospect of conviction.

Delay

As above, all of the matters presently before this court are listed for a contest mention at the Ringwood Magistrates’ Court on 26 June 2023. It is uncertain at this point whether some of the matters before that court may be resolved finally on the forthcoming mention day, or proceed to contest. If some, or all, of the matters proceed to contest, there is a prospect that contested matters may not be finally dealt in with until late 2023, or into 2024. It is worth observing that clearly it would be in the interests of the prosecution and the applicant for the matters that can be resolved, to be finally dealt with on the day of the upcoming mention, or soon thereafter.

Bail support and therapeutic treatment

The applicant has placed before the court a considerable amount of evidence relating to treatment and support that is available to him should he receive a grant of bail. That evidence obviously weighs in favour of a conclusion that the applicant satisfies the exceptional circumstances test. In particular, he has the availability of an “outpatient” treatment option provided by the AFTR support program. Furthermore, he has the support of other agencies, including his psychologist, Dr Poznanski, and the ongoing support of his parents. It is also to be noted that his partner is expecting a baby, and it was submitted that this fact amounts to a protective factor, again weighing in favour of a grant of bail.

In weighing the availability of the therapeutic treatment as proposed, I note that the AFTR program is provided on an outpatient basis and is not designed to be residential. The consequence of this is that the applicant would be required to travel to and from the location of treatment from his place of residence, every day for the duration of the program, which is envisaged to be approximately 12 weeks. In weighing whether this represents a factor that contributes significantly to the satisfaction of the exceptional circumstances test, the court is obliged to take into account the surrounding circumstances, including that the applicant has been provided with therapeutic opportunities previously, and that these appear to have failed up to this point.

In respect of the support to be provided by his father, regrettably I found the evidence of Mr Amr to be somewhat uninformed as to the extent of the applicant’s previous offending. Mr Amr stated that he had only learnt about his son’s offending in court, and expressing some disbelief at the allegations brought against him. Further, the applicant’s father was adamant that the applicant was a “very, very good” boy and that “Omar never – never breach” his bail conditions. This evidence flies in the face of reality, in my opinion.

Further, insofar as the applicant’s relationship with his partner, CR, was put forward as a positive aspect of his application, I am forced to conclude otherwise. In light of her alleged presence during aspects of the applicant’s recent criminal conduct, and her alleged attempt to smuggle drugs into a prison during the applicant’s remand, I doubt that at this point she can be properly regarded as a positive influence in his life.

Furthermore, in respect of the proposal that the applicant’s father has offered a surety amount of $3,000, I regard this as a minimal amount, especially when compared to the value of the drugs, located cash amount, and value of the stolen car the applicant was attempting to sell. In the circumstances of this, and the applicant’s prior criminal history, I do not regard this as an amount that is likely to deter the applicant from committing further offences.

As to the support offered by Dr Poznanski, I have noted that he indicated that while he would be willing to inform the court if the applicant was breaching his bail conditions, it would undermine trust and confidence between them both to do so. I also remain concerned that there seems to be some existing issues concerning the applicant’s degree of honesty with Dr Poznanski.

Taking into account all of the circumstances put forward in combination, and weighing the matters, I am of the opinion that the applicant has not demonstrated that the exceptional circumstances test is met. On this basis I would refuse the application for bail. In concluding this I have taken into account the surrounding circumstances as I am obliged to do.

Having concluded the above, whilst it is strictly unnecessary for the court to deal with the question of unacceptable risk, I do make the observation that had I concluded that the exceptional circumstances test had been met, I would nevertheless have refused the application for bail on the basis that the respondent has satisfied me that the applicant represents an unacceptable risk of committing further offences, and harming members of the public, whilst subject to a grant of bail. In my opinion, no conditions that could be included on a grant of bail could have ameliorated the risk to one that becomes acceptable.

A number of the matters that have been discussed above in the context of the exceptional circumstances test are also relevant to the determination of the risk of further offending which attaches to the applicant.

These matters include the past criminal history of the applicant, which is strikingly poor in that it records numerous findings of guilt for a wide variety of offences involving violent and aggressive behaviour, examples of trafficking and possession of drugs, deceptions and theft, threatening behaviour, robbery, failing to obey police directions, and many other types of related offences. In all, the applicant’s offending has been repetitive, and unremitting.

Further, the applicant’s prior history records that he has been granted numerous opportunities by way of court orders directed towards therapeutic treatment, which have in many instances proved unrewarding from his perspective and that of the general community, with infractions including of breaches of orders, and repetitive further offending. Specifically, he has been granted bail on two previous occasions by this court on the basis that he received therapeutic treatment. I note that in 2021, Justice Coghlan remarked that even with similar types of therapeutic supports as were placed before this court that:[12]

I make it clear that, had it not been for the fact that I have concluded that there is a very strong likelihood of any sentence being exceeded by the period on remand, I would have regarded the applicant as an unacceptable risk and I would have refused him bail.

[12]Re Amr [2021] VSC 743, [22] (Coghlan JA).

In the applicant’s case, taking into account all relevant matters, I cannot conclude there is a strong likelihood of a sentence exceeding the possible period on remand. Further, significant recent treatment opportunities afforded to the applicant appear to have manifestly failed to achieve their intended purposes.

Moreover, I note the fact that the applicant was on a CCO at the time of the second set of alleged offences before this court, that he is alleged to have committed an indictable offence whilst on bail, that he is alleged to have acted violently in using his motor vehicle — which it appears he was not entitled to be driving in any event — and that he acted violently in assaulting and resisting emergency workers, and that he remained aggressive and uncooperative in a hospital setting. In short, his alleged behaviour on these most recent occasions bears a striking similarity to the types of conduct he has engaged in for well over a decade. Given that the therapeutic treatment offered by AFTR, and other supports, is on an outpatient basis with the applicant required to attend daily on that basis, whilst necessarily interacting with members of the public, I regard him as posing an ongoing risk to the wider community. In short, I remain quite unsatisfied that sufficient conditions can be attached to a grant of bail that would ameliorate the risk of further offending to an acceptable level.

I am also not satisfied that the applicant’s risk of harming members of the public can be reduced to an acceptable level. In this regard, I am conscious of the fact the applicant has had two significant episodes of alleged offending in the last nine months, that the scale of his alleged offending has increased over that time, and the applicant’s alleged offending partially occurred while he was being judicially monitored and whilst being required to abide by the conditions of an ongoing CCO. In short, the applicant has been given two major opportunities in the recent past to redeem himself and engage in rehabilitation, but neither has been successful.

In these circumstances, I am satisfied the respondent has established that the applicant represents an unacceptable risk as defined by the Act.

Conclusion

In all the circumstances the application for bail will be refused.

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Re Amr [2023] VSC 328

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Re Amr [2021] VSC 743

[2023] VSC 328

14 June 2023