Re Application for bail by Constantinos Kremmos
[2017] VSC 512
•29 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0157
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for Bail by Constantinos KREMMOS
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JUDGE: | WEINBERG ACJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 August 2017 |
DATE OF JUDGMENT: | 29 August 2017 |
CASE MAY BE CITED AS: | Re Application for bail by Constantinos Kremmos |
MEDIUM NEUTRAL CITATION: | [2017] VSC 512 |
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CRIMINAL LAW – Application for bail – Aggravated burglary and other offences – Applicant in ‘show cause situation’, having been charged with aggravated burglary and indictable offence in the course of which the use of a firearm was threatened – Whether parity with co-offender who had been granted meant bail should be granted – Whether unacceptable risk of committing an offence whilst on bail and endangering the safety or welfare of members of the public – Applicant facing serious charges – Co-offender played lesser role in offence and had dependent children – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Hughes | Papa Hughes Lawyers |
| For the Respondent | Mr S Ballek | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
The applicant, Constantinos Kremmos, aged 36, was arrested on the morning of 24 June 2017, and charged with the following offences:
(a) Aggravated burglary – intent to assault armed with a homemade shotgun, baseball bat and machete;
(b) Being a prohibited person in possession of a firearm (two charges);
(c) Possession of a controlled weapon;
(d) Possession of a dangerous article;
(e) Intentionally causing injury;
(f) Theft;
(g) Theft of a motor vehicle;
(h) Driving whilst disqualified;
(i) Handling stolen goods;
(j) Possession of a prescribed precursor chemical (two charges).
These offences all arose out of an incident that occurred on the evening prior to his arrest, when the applicant and, it is said, two associates entered, as trespassers, a room occupied by the complainant in this matter. The applicant is alleged to have assaulted the complainant by striking him to the head with a hand-made shotgun, and to have threatened to harm the complainant’s family if he contacted police. The applicant and his co-accused are alleged to have stolen the complainant’s car and mobile phone.
It seems that the complainant had been in a relationship with the applicant’s co-accused, Kristen McMahon. As their relationship developed, they began to attend a number of ‘swingers parties’. The complainant filmed a number of their sexual acts together and with others, apparently with the consent of Ms McMahon.
It also seems that the complainant had only once met the applicant prior to the events of 23 June 2017. The incident that gave rise to the various charges brought against the applicant is alleged to have been caused by a dispute between Ms McMahon and the complainant over certain property, and the complainant’s having distributed the intimate images and videos of her, which he had taken, to her family and friends.
Police were called immediately after the incident, and the applicant was arrested the following morning. Subsequently a search warrant was executed at the premises he had been occupying, and further firearms, anabolic steroids and precursor chemicals were located and seized.
The applicant is in a show cause position. That is because he has been charged with aggravated burglary,[1] and also with the commission of an indictable offence in the course of which the use of a firearm was threatened.[2]
[1]Bail Act s 4(4)(bc).
[2]Bail Act s 4(4)(c).
The applicant first applied for bail in the Melbourne Magistrates’ Court on 7 July 2017. Bail was refused on the basis that he had not shown cause, and that he was an unacceptable risk. He again applied for bail on 4 August 2017 on the basis of new facts and circumstances. Essentially, he relied on that occasion upon his having been found suitable, in the interim, for Level 3 Intensive Case Management by the Court Integrated Support Program (‘CISP’). However, bail was refused once again on the basis that he had not shown cause, and was an unacceptable risk.
The matter is currently listed for a committal case conference on 20 September 2017. The applicant has been in custody since his arrest on 24 June 2017. This is his first time in custody.
Applicant’s background and submissions
The applicant was born in Cyprus, and migrated to this country with his family at the age of three. He attended schools in Sunshine and Deer Park. His family all reside locally, and he is said to have strong ties to the jurisdiction. It is also said that he has stable accommodation available to him at his parents’ residence in Deer Park. There was evidence to that effect led before me, which I accept.
Prior to his arrest, the applicant had a solid work history. Since 2011, he has been employed full time as a production operator at Nufarm Limited, in Laverton, assisting in the production of crop protection products. It is said that, should he be granted bail, he would be able to resume employment there, and again, evidence to that effect was led in support of this application.
The applicant was married for some 14 years. The marriage ended in 2014. He has three children, aged 13, 10 and 3. The children currently reside with his ex-wife, and the applicant has had no contact with them for some considerable time.
Following the break-up of his marriage, the applicant, who had been using drugs for a number of years, began to use methamphetamine more frequently. He also suffered from depression. A psychological report prepared by Mr Kenan Rahmanovic, a clinical psychologist, dated 6 July 2017, was tendered in support of this bail application. An amended version of that report was handed to me during the course of this morning’s proceeding.
In addition, as previously indicated, the applicant has been assessed as suitable for Level 3 Intensive Case Management. I have before me a CISP Report dated 27 July 2017, and an updated one dated 29 August 2017, to that effect. The applicant claims that he wishes to address his drug problem and mental health issues, and take advantage of CISP, if granted bail.
The applicant’s sister gave evidence before me regarding the circumstances of his proposed accommodation, at their parents’ home, should bail be granted. She undertook to contact police immediately if she became aware of her brother breaching any bail condition. The sister, it appears, has daily contact with her parents, and would be in a position to know fairly soon if the applicant failed to comply with any such condition.
After his arrest, the applicant took part in a record of interview. It is important to note that he specifically denied having been in possession of a firearm, or having assaulted the complainant. He provided a detailed account of his version of events, disputing the account given by the complainant. He maintained that there had only been Ms McMahon and himself present at the complainant’s room and that, although he had been armed with a baseball bat, he had not struck the complainant with it.
The informant who gave evidence before me agreed that the complainant has a substantial criminal history, including prior convictions for dishonesty and the use of drugs. The case against the applicant depends, to a considerable degree, upon the complainant’s credibility, and that is a factor to be taken into account. At the same time, there appears to be considerable support for the complainant’s version of events based upon the injuries that he sustained to the region of the head and jaw, none of which were consistent with the applicant’s account. Moreover, the complainant gave a description of the weapon which he claims the applicant wielded against him, which is consistent with a handmade shotgun found by police in the room in which the applicant had slept on the night following the incident. That weapon was distinctive, even as to matters of extraordinary detail, such as the screw mechanism, and it is hard to imagine how the complainant could have fabricated his description of it, when a weapon of that very unusual type was subsequently located.
The co-accused, Ms McMahon, also aged 36, was granted bail on the first remand date at the Melbourne Magistrates’ Court. She has an extensive prior criminal history, including a previous conviction for possession of a prescribed weapon. It is said that parity is a relevant consideration so far as the applicant’s bail is concerned. It should be noted, however, that Ms McMahon seems to have played a lesser role than the applicant in relation to the alleged actual violence perpetrated against the complainant. She also has dependent children.
The applicant has a number of prior convictions. However, most of these are of no real consequence since they date back almost 20 years. He has been released on bail before, and has generally complied with bail conditions. He has never been found to have breached bail. He has no prior convictions for offences involving violence as such, or possession of weapons. He has, however, relatively recently been found to be in breach of an intervention order.
It is said that there is likely to be some delay in this matter. A number of the items seized by police will have to be forensically examined, and the informant told me that may take three to six months. Inevitably, this matter will not be ready for trial until well into next year, at the earliest.
Objections to bail
In an affidavit affirmed on 14 August 2017, a solicitor in the Office of Public Prosecutions summarised the allegations made against the applicant. He deposed as follows.
12.At approximately 9pm on Friday the 23rd of June 2017, McMAHON picked up the applicant from a Laundromat and drove to 54 Appian Drive, Albanvale. Whilst at this address text messages with the complainant. During these exchanges there was disagreement over property belonging to MCMAHON that she alleged was in the complainant’s possession. There were also allegations that indicated that the complainant did not fear the accused and that he would ‘stand over him’.
13.In response to the text messages, the applicant, co-accused McMAHON and an unknown male armed themselves with weapons including an homemade shotgun, baseball bat and machete. They then travelled in McMAHON’s car, arriving at the complainant’s residence at 20 Alamanda Boulevard, Point Cook at approximately 1.30am.
14.McMAHON utilised a spare key to enter the residence. All three offenders went upstairs to the complainant’s bedroom. The door was locked so McMAHON knocked on the door and identified herself. The complainant then opened the door.
15.Once the complainant opened the door he was pushed back into the room and struck to the head and elbow with the baseball bat by the unidentified male. The applicant then struck the victim to the jaw with the homemade shotgun. McMAHON then began to yell at the complainant to stop showing people the video. The applicant then opened the homemade shotgun, showing the complainant it contained a shotgun cartridge and stated, “I’ve got a fucking shotgun mate.” McMAHON then stole the complainants Apple iPhone.
16.The applicant then asked the complainant where his car keys were. The complainant stated the keys were downstairs in an attempt to lead the applicant past CCTV cameras. As they walked down the stairs the accused stated, “I’ve got a fucking machete.” Whilst this was occurring another resident in the house, Silvia DIXON heard the commotion and locked herself in her room in fear.
17.McMAHON located the keys to the complainant’s vehicle upstairs and threw the keys to the applicant. The applicant told the complainant to return to his room and told him, “I know where your parents live, where your mum is, if you tell anybody, they’re fucked.” He further told the complainant to, “sign the vehicle over to Kristen tomorrow.” All three offenders then left the house.
18.CCTV footage captures the co-accused McMAHON driving North in Alamanda Boulevard closely followed by the applicant in the complainant’s car.
19.The complainant walked to his employer’s residence and police were contacted.
20.Police tracked the complainant’s Apple iPhone and attended Appian Drive, Albanvale. On arrival police observed the complainant’s stolen car, and McMAHON’s car which had number plates which were assigned to another vehicle a 1998 Proton.
21.At approximately 7.55am police observed the co-accused McMAHON drive from the premises in her car. Police were tracking the stolen Apple iPhone which was tracking consistently with the location of the car. Police intercepted the vehicle and arrested McMAHON. A search of the vehicle was conducted and police located, the stolen Apple iPhone, identification belonging to the complainant and three bags of crystal substances believed to be methamphetamines (ICE).
22.At approximately 9am whilst investigators continued static surveillance on 54 Appian Drive, Albanvale they observed the applicant exit the premises and approach the complainant’s stolen vehicle. Police arrested the applicant and found the keys to the stolen car in the applicant’s possession.
23.Police executed a search warrant at 54 Appian Drive and located and seized the following items; a red baseball bat, personal paperwork belonging to the complainant, a bag containing a homemade 12 gauge shotgun, five twelve gauge shotgun rounds, a black handled machete and a set of keys to 20 Alamanda Boulevard, Point Cook.
24.Further items located included a lever action .22 calibre rifle, property suspected of being the proceeds of crime and six vials of anabolic steroids.
25.During the course of the search a black case containing a number of glass bottles containing chemicals. These chemicals included (but not limited to) iodine, phosphoric acid, potassium and acetone. Members from the Clandestine Laboratory attended and seized the chemicals.
26.The applicant was interviewed by police and stated the following;
(a)He stated that he attended at the complainant’s address in company with McMAHON to assist her to recover property.
(b)That he took a baseball bat there for self-defence as the complainant had made threats towards him earlier via text message conversations between the complainant and MCMAHON.
(c)That he struck the complainant with the baseball bat in self-defence
(d)That he took the complainant’s car for the purpose of giving it to McMAHON to settle a civil debt.
(e)that there was not a third co-offender.
The Crown opposes bail on the grounds that, even if the applicant were to show cause, he would present an unacceptable risk of committing an offence whilst on bail and endangering the safety or welfare of members of the public. The Crown submits that, by his prior convictions, including having breached family violence intervention orders, the applicant has shown a disregard for the authority of the Court. Police also say they hold concerns for the ongoing safety of the complainant and his family, given that the applicant has allegedly threatened to harm them if the complainant were to disclose the offence to police.
Conclusion
The applicant’s legal representative, Ms Hughes, presented a forceful and well-reasoned case for bail. She did so fully cognisant of the forensic difficulties that the applicant would have to overcome in refuting the prosecution argument that there is an unacceptable risk that, if he were released on bail, he would commit other offences, or endanger the safety or welfare of members of the public.
As Ms Hughes properly noted, the police do not contend that the applicant poses an unacceptable risk of absconding.
In support of her argument for bail, Ms Hughes noted that the applicant had never previously been in custody, that he had previously complied with bail conditions, that he had full-time employment available to him, that he had a supportive family and suitable premises to reside at, but he had no history of violence, that the delay in this matter coming to trial would be significant, even if not unusual, and that parity with the treatment accorded to Ms McMahon was a relevant factor.
Mr Ballek, who appeared on behalf of the respondent, submitted that the applicant was charged with serious offences. These included aggravated burglary in company and possession of various weapons, including a shotgun which it was said was loaded. This was a confrontational burglary. The complainant was allegedly struck to the jaw by the applicant wielding the shotgun, and his family threatened. His car keys were demanded from him, and the car stolen. It was found in the applicant’s possession the following morning, and there was no dispute that he had driven it away.
Mr Ballek further submitted that, even based upon the applicant’s record of interview, the prosecution case was a strong one. He had entered the complainant’s room armed with a baseball bat and became involved in an altercation with the complainant. There was considerable support for the complainant’s version of events, and the applicant’s account was inconsistent with known objective facts. The complainant was justifiably fearful of the applicant. There were no relevant parity considerations. The applicant’s prior convictions showed previous non-compliance with court orders. The offending was not related to drug use, and the CISP program was in that sense only marginally relevant. Finally, it was said, the delay in this matter was not untoward.
In my opinion, the applicant has failed to show cause at this stage why he should be granted bail. The charges against him are very serious indeed, and it appears to me, even at this stage, that the case against him is strong. If it be that he was armed, during the incident, with a hand-made shotgun of the type found the following morning in his room, the objective gravity of the offending can be seen to be extremely great.
I consider that the applicant poses an unacceptable risk of further offending, and of endangering the safety of, in particular, the complainant. I do not think that the conditions contemplated for bail would sufficiently alleviate that risk to warrant the grant of bail at this time.
It may be that circumstances will change over the next few weeks if it becomes clear that the delays in this matter will be significantly greater than presently contemplated. So, for example, if it transpires that no trial will be possible before 2019, as may be the case, the matter of bail would certainly warrant further consideration. I would certainly regard that as a new fact or circumstance justifying a fresh examination of this case.
For the moment, however, bail will be refused.
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