Re Amr
[2021] VSC 743
•10 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0280
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Omar AMR |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2021 |
DATE OF JUDGMENT: | 10 November 2021 |
CASE MAY BE CITED AS: | Re AMR |
MEDIUM NEUTRAL CITATION: | [2021] VSC 743 |
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CRIMINAL LAW – Application for bail – Trafficking in a drug of dependence – Dangerous driving whilst being pursued by police – Availability of supports whilst on bail – Delay – Compelling reasons established – No unacceptable risk – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Patton | SLKQ Lawyers |
| For the Respondent | Mr P. Bourke QC | Ms A. Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
As the matter stands the applicant is charged with dangerous driving whilst being pursued by police, failing to stop a vehicle on police directions, unlicensed driving, theft of a motor vehicle, handling stolen goods, trafficking in a drug of dependence, possession of a drug of dependence (four counts), and dealing with property suspected of being the proceeds of crime.
Given the circumstances that these offences were committed shortly after his last release from custody (14 May 2021), it is not surprising that there are no other outstanding matters, and nor is it surprising that he was refused bail at the Melbourne Magistrates’ Court on 16 September because he was found to be an unacceptable risk.
That application was renewed on 29 October 2021, when he was committed for trial on the indictable matters. That further application for bail was refused. The matter is now listed for directions in the County Court at Melbourne on 26 November 2021.
The alleged offending
Between 8 and 21 May 2021 a Honda Civic was stolen from Bundoora and two sets of number plates were stolen from Mitcham and Doncaster. Police do not allege that the applicant was involved in the initial theft of the car.
On 27 May 2021 at 2.18am, the applicant was observed by a police air wing unit driving above the speed limit in the stolen Honda in Cranbourne West. The car was displaying the stolen number plates. Police attempted to stop the applicant by activating the emergency lights on their car, however the applicant increased his speed and turned off the headlights.
At 2.40am, the applicant parked the car at an address in Hastings. Police attended and observed the applicant jump the back fence and throw a black bag away. He was apprehended by a police dog and arrested.
Police seized the bag thrown by the applicant and located a number of items in it, including the following:
(a) a wallet containing $730 in cash, and a TAB receipt (which has been linked to the applicant through CCTV footage from the TAB premises);
(b) two mobile phones;
(c) a zip-lock bag containing 54.7 grams of methylamphetamine; and
(d) a key to the stolen Honda.
Located within the stolen Honda was 0.3 grams of heroin, 12.5 grams of 1,4 butanediol and 100 suboxone mouth strips. One of the seized mobile phones was signed into a Google account in the applicant’s name, and contained numerous messages allegedly indicating the applicant was selling drugs.
On 28 May 2021 the applicant was interviewed. He admitted to speeding and driving while unlicenced. He stated he borrowed the car from a friend. The applicant denied the drugs located in the bag belonged to him and stated he had not looked in the bag. He answered ‘no comment’ to the allegations of drug trafficking.
The applicable legislation
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’).[1]
[1]The Act, s 1B(2).
The applicant is required to show a compelling reason that justifies a grant of bail under s 4AA(3) of the Act as he is accused of Schedule 2 offences.[2] It follows that bail must be refused unless the Court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[3] In considering whether a compelling reason exists the Court is obliged to take into account all of the relevant surrounding circumstances including, but not limited to, those set out in s 3AAA of the Act.[4]
[2]Dangerous driving whilst pursued by police (sch 2, item 22(h)) and trafficking in a drug of dependence (sch 2, item 24(b)).
[3]Ibid ss 4C(1A)-(2).
[4]Ibid s 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test.[5] Bail must be refused if the respondent satisfies the Court that, if released on bail, the applicant poses a risk of engaging in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[6] In determining whether a risk is unacceptable the Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[7]
[5]Ibid ss 4C(4), 4D(1)(b).
[6]Ibid ss 4D(2), 4E(2).
[7]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 30 years of age. His parents migrated from Egypt and raised the applicant and his two siblings in Melbourne. The applicant completed high school and was accepted into a degree at university. However, after completing his VCE exams in 2008, he was struck by a bus whilst riding a bicycle. He sustained a spinal injury and an acquired brain injury from the accident and those matters have had a very significant influence on his life since.
The applicant has got a longstanding history of substance abuse, which he reports commenced following his accident. Prior to his remand, the applicant had been using methylamphetamine and GHB.
He has been assessed by Dr Joseph Poznanski, counselling psychologist, several times since 2013. Dr Poznanski diagnosed the applicant with a neurocognitive disorder due to his traumatic brain injury and with behavioural disturbance, stimulant use disorder, unspecified depressive order, and chronic post‑traumatic stress disorder.
Dr Poznanski gave evidence before me today and I was impressed with his dedication to try and give support to the applicant if the applicant will accept it. The same could be said for Ms Karly Doyle, forensic drug and alcohol counsellor from Ontrack, who has been providing counselling to the applicant and will continue to do so. Both of those professionals are intent on providing significant support to the applicant.
Criminal History
The applicant has got a very significant criminal history. The applicant has served several custodial sentences, including the following in the last five years:
·July 2016: the applicant was sentenced to an aggregate 12 months’ imprisonment for trafficking and possessing drugs of dependence, driving under the influence of drugs and breaching parole by committing an imprisonable offence.
·December 2016: the applicant was sentenced to 224 days’ imprisonment for a consolidation of offences including assaulting and resisting an emergency worker on duty, driving whilst disqualified, possessing and using drugs of dependence, possessing a dangerous article in a public place, theft of a motor vehicle, dealing with property suspected of being proceeds of crime and bail offences.
·July 2018: the applicant was sentenced to a total of 25 days’ imprisonment for possessing and using drugs of dependence, as well as bail and weapon offences.
·October 2018: the applicant was sentenced at Melbourne County Court to a total of three years and eight months’ imprisonment with a non-parole period of two years and four months for a consolidation of offences, including assaulting an emergency worker on duty, trafficking methylamphetamine, negligently dealing with proceeds of crime, driving whilst disqualified and possessing MDMA.
· March 2020: the applicant was sentenced to seven days’ imprisonment for possessing methylamphetamine.
The applicant was most recently released from custody on 14 May 2021, having served the full sentence imposed in October 2018.
He has got an appalling history in relation to obeying his conditions of bail, and there are real issues about whether or not the combination of his acquired brain injury and post-traumatic stress disorder make it very difficult for him to properly obey conditions of bail. He has assured me in a letter that is exhibited to his instructing solicitor's affidavit that he is more determined now than he has had in the past.
As I said in discussion, that assurance is not being given for the first time. His mother, who gave evidence before me, herself, regarded his present position as being more positive and better than it has been in the past. She is prepared to have her son living at home and to provide such supervision as she is able.
The applicant quite rightly set out the applicant’s history as it related both to offending and in relation to generally obeying court orders. It was observed that the applicant has often gone back into custody very shortly after being released from periods of imprisonment and that he has had opportunities and taken part in drug rehabilitation programs in the past, all of which have proved to be of no avail.
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.
The other matters in favour of the applicant are that, because of his acquired brain injury and other conditions, any time in custody is more onerous for him than for other prisoners in a similar position. If it be in part that his failure to keep conditions is directly related to his medical conditions, it falls that that is another matter that I would be obliged to take into account.
Availability of supports whilst on bail
The following services are available to the applicant.
He has, as I have already mentioned, the support of Dr Poznanski and the support of Ms Doyle.
Mr David Millar from AIR14, the Australian Intensive Rehabilitation Pty Ltd, gave evidence and said that there was a place available there and told me of the services that would be available to the applicant. There is also a suggestion that the applicant would, during next year, be able to go into the Torque Program. I am not sure because of the ongoing nature because of what is offered by AIR14 that that will prove to be necessary and I will not make it a condition of his bail.
Additionally, the applicant's mother had offered to provide a surety of $3000. I am not sure that that surety of itself would not make any difference to my decision as to whether or not to grant bail. It has the significance of demonstrating the support that Ms Amr is prepared to give her son, but, in a way, I am not happy that her $3000, which I suspect would be a very significant amount to her but not necessarily a significant amount to the State of Victoria, would be put at peril in circumstances such as these. As I said, it is an important feature of the support that she is prepared to give.
Ruling
The Court is satisfied that a compelling reason exists and that it has not been shown that the applicant is an unacceptable risk for the reasons announced this day.
The Court received an undertaking from Mr David Millar on behalf of AIR14 that any breach of bail condition or any provision of a negative urine sample would be reported to the informant.
The applicant’s mother, Ms Gehan Amr also gave the Court an undertaking that she would report to the informant any breach of bail or bail condition.
The applicant will be admitted to bail on his own undertaking and on the following special conditions:
a) He attend the County Court of Victoria at Melbourne on 26 November 2021 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 9/21 Spring Road, Springvale in Victoria, and not change that address without the leave of the Court.
c) He remain at those premises between the hours of 7.00pm and 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 own or possess one mobile phone and provide that phone number to the Informant and that, if requested to do so by a member of Victoria Police, he provide any password to enable the search of that phone.
f) That he not have access to social media.
g) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
h) He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.
i) He engage with Dr Joseph Poznanski and Karly Doyle and comply with all lawful directions of them, and attend all appointments as directed by them, including attendance for urine drug testing if drug testing is not being arranged as part of the AIR-14 program and that the results of the urine analysis be provided to the Informant.
j) That he attend the Australian Intensive Rehabilitation Pty Ltd (‘AIR-14’) at 9.00am on 11 November 2021 and comply with all lawful directions from members of staff of AIR-14 and attend all appointments as directed by them.
k) He not contact, directly or indirectly, any witness for the prosecution including Mr Darren Whittaker, except the informant.
l) He not leave the State of Victoria.
m) He not attend any points of international departure.
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