Re Application for bail by Deng
[2020] VSC 686
•16 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0121
| IN THE MATTER OF the Bail Act 1977 |
| and |
| IN THE MATTER OF an Application for Bail by Emmanuel DENG |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2020 |
DATE OF ORDERS: | 17 July 2020 |
DATE OF REASONS: | 16 October 2020 |
CASE MAY BE CITED AS: | Re Application for bail by Deng |
MEDIUM NEUTRAL CITATION: | [2020] VSC 686 |
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CRIMINAL LAW – Application for Bail – Whether exceptional circumstances exist – Applicant not an unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Galbally Parker Lawyers |
| For the Accused | Ms C Parkes | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 17 July 2020 I granted Emmanuel Deng’s (‘the applicant’) application for bail and said that I would publish my reasons. These are those reasons.
The application was first made returnable on 2 June 2020. The former solicitors for the applicant advised the Court that following instructions from the applicant’s half-brother, Mr Biel Gatluak, it was their intention to adjourn the application. They advised that Mr Gatluak was soon to relocate to Bairnsdale for work. The applicant’s solicitor requested an adjournment to confirm a new proposed bail address and organise youth support services. The matter was administratively adjourned to 26 June 2020. On 18 June 2020 the applicant’s new solicitors advised the court that a further adjournment was required to resolve some outstanding issues regarding the proposed accommodation for the applicant. The matter was further adjourned and proceeded on 17 July 2020.
The applicant is charged with affray, armed robbery, two counts of intentionally causing injury, theft of a motor vehicle, violent disorder and robbery (‘primary matter’). He is also being charged with contravening a Community Corrections Order (‘CCO’), having been on that order at the time of this offending (‘Dromart matter’).
Procedural History
All charges in the primary matter arise from events alleged to have occurred on 28 December 2019. The applicant was arrested and remanded on 8 January 2020, and charged the following day. He has been in custody since that date.
At the time of the alleged offending, he was subject to an 18-month CCO imposed in the Dandenong Magistrates’ Court on 8 November 2019 following conviction for violence, dishonesty and bail offences. As a result of the present allegations, he was charged on summons with contravening the CCO on 31 January 2020. On 21 May 2020, he was also remanded in relation to that matter.
The applicant has been refused bail on two occasions in the Melbourne Magistrates’ Court, namely 9 January 2020 and 7 April 2020. His first application was made in-person, however, he was legally represented at the further application. On both occasions, bail was refused on the basis that the applicant had failed to establish exceptional circumstances justifying his release on bail and, further, it was found that he was an unacceptable risk of the matters contained in s 4E(1)(a) of the Bail Act 1977 (‘the Act’).
The primary matter is next listed in the Melbourne Magistrates’ Court on 15 February 2021 for committal. The Dromart matter is listed on the same day for mention.
Other outstanding matters
Informant Cummins
The Magistrates’ Court Electronic Filing Appearance System indicates that the applicant is presently on bail for an additional matter where the informant is Cummins, listed for mention in the Melbourne Magistrates’ Court on 28 October 2020.
Co-accused
There are seven co-accused in the primary matter, six of whom fall within the Children’s Court jurisdiction and whose matters have resolved with pleas of guilty to lesser offences than those faced by the applicant. Their details, including their age at the date of the alleged offending, are as follows:
·SA, aged 16, pleaded guilty to robbery, violent disorder, theft of a motor vehicle and intentionally causing injury. n 28 February 2020, he was sentenced to a Youth Attendance Order.
·BW, aged 15, pleaded guilty to robbery, theft and committing an indictable offence while on bail. On 4 February 2020, he was sentenced, without conviction, to a 12-month Probation Order.
·DG, aged 16, pleaded guilty to robbery and on, 17 April 2020, was sentenced to a 8-month Youth Justice Centre Order. He has appealed against sentence, the outcome of which is pending.
·KK, aged 16, pleaded guilty to robbery and was sentenced on 3 April 2020 to a Youth Supervision Order.
·CW, aged 17, pleaded guilty to violent disorder and intentionally causing injury. He was sentenced to a 12-month Probation Order on 15 May 2020.
·YG, aged 15, pleaded guilty to robbery and was sentenced to a Youth Supervision Order of 12 months, without conviction on 25 June 2020.
On 14 July 2020, the remaining co-accused, Bigoa Thiep, aged 18, was sentenced to 18 months imprisonment, with a non-parole period of 12 months.
Applicable Test
As the first step in the two-step process, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist which justify the grant of bail, pursuant to ss 4AA(2)(c)(iv), 4A(1A) and 4A(2) of the Act.
This is because the applicant is accused of committing a Schedule 2 offence, namely, armed robbery,[1] during the period of a CCO imposed in respect of other Sch 2 offences, namely, offences against the Act.[2]
[1]Bail Act 1977, Schedule 2, items 22(a).
[2]Ibid sch 2, item 30.
In considering whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.
If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
When interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[3]
[3]Ibid, s 1B(2).
Details of alleged offending
In summary, the allegations against the applicant arise from two violent assaults said to have been committed by him and seven co-accused against two complainants that were otherwise unknown to him on 28 December 2019.
By way of background, in the days preceding the alleged offending, the first complainant, Corey Zarth, is alleged to have been made subject to demands for money by one of the co-accused. The demands centred around compensation for damage sustained to a vehicle belonging to the co-accused, who lived nearby to Mr Zarth and was known to him. By the date of the alleged offending, Mr Zarth had been told that he owed $3,000 and would be assaulted and robbed if he did not produce the money.
At approximately 4:50pm on 28 December 2019, Mr Zarth was approached outside his residence in Cranbourne North by two co-accused regarding payment of the money owed. They were shortly joined by the applicant and remaining co-accused and a violent altercation ensued, which was captured on what I regard as high-quality CCTV footage. The applicant is alleged to be depicted punching Mr Zarth in the mouth before chasing him to a neighbouring property and, along with the co-accused, punching and kicking Mr Zarth to the head and body as he lay on the ground. In particular, the applicant is said to be seen kicking Mr Zarth to the face twice, punching him in the side of his body and attempting to kick him in the back. The assault was interrupted by a neighbour exiting her house and telling at the group to leave Mr Zarth alone. He managed to find assistance from another neighbour and was conveyed to Dandenong Hospital by ambulance.
As a result of the assault, Mr Zarth suffered a fractured cheekbone, broken nose, extensive bruising and internal bleeding on his spleen. He was unable to work for a period of time due to pain and swelling in his hands sustained while trying to protect his head during the attack. He also suffers ongoing anxiety and insomnia.
Approximately one hour later, the group were driven by one of the co-accused to Coral Drive in Hampton Park in a grey Kia Sorrento that was stolen from outside a residence in Frankston on 16 November 2019. At the time, the vehicle also displayed stolen registration plates.
While driving, the group encountered the second complainant, 17-year-old FA, who was walking alone on Ormond Road in Hampton Park and listening to music through his ‘Beats’ brand headphones. he vehicle is alleged to have pulled up alongside FA and the driver asked him ‘Can I have your Beats?’ to which FA replied ‘No’. It is alleged that two Sudanese males then exited the vehicle, one of whom unsuccessfully tried to punch FA in the head and the other tripped to him the ground. Three or four other Sudanese males then exited the car and proceeded to kick and punch FA as he lay on the ground. The attack ceased when a passerby drove up to the footpath and sounded his horn to disperse the group. The applicant and co-accused are alleged to be captured on mobile phone footage from another witness running back to the stolen Kia Sorrento.
When he stood up, FA realised that he had been stabbed once in his upper left leg and his Beats headphones had been stolen. He was conveyed to the Alfred Hospital by ambulance and underwent surgery on a three centimetre deep stab wound. He also suffered bruising and swelling to his head, face and arms, as well as anxiety, insomnia and loss of income as a result of the attack.
On 2 January 2020, search warrants were executed at each of the applicant and co-accused’s homes. The applicant was not present but clothing identified as having been worn by him or various co-accused during the offending was seized. The stolen Kia Sorrento was also located in Pakenham, near to one of the co-accused’s residences. No fingerprints were identified and the results of further forensic analysis are presently outstanding.
On 8 January 2020, the applicant was observed by police in Dandenong and arrested following a short chase on foot. He was wearing a pair of Apple headphones, consistent with those said to be worn by him in CCTV footage of the alleged offending. He gave a largely ‘no comment’ record of interview and denied involvement in both incidents.
The prosecution case also relies on a photo board identification made by the first complainant, Mr Zarth and comparison of photographs taken at the time of arrest with stills from the CCTV footage. Forensic analysis of shoes believed to have been worn during the alleged offending and a lighter located at the scene of one of the incidents remains outstanding.
Applicant’s personal circumstances
The applicant is 20 years old. He was 19 at the time of the alleged offending. He was born in a refugee camp in Ethiopia to Sudanese parents and relocated to Australia a year later. He initially resided with his parents and four siblings in Alice Springs and recalls witnessing significant family violence perpetrated by his father against his mother. His parents separated when he was aged 9, which resulted in financial hardship for his mother and a number of relocations between Adelaide, Mildura and Melbourne. He previously enjoyed a close relationship with his mother and siblings but has had less contact with them since their relocation to Perth in 2018. He has not had contact with his father since his parents’ separation.
The applicant was an academically gifted student, although he recalls experiencing harassment related to racism during high school and suffered a racially-motivated assault at the age of 16. Following high school, the applicant enrolled in a course at Melbourne University with a view to studying astrophysics.
He is also a talented basketball player, having been selected in December 2018 to train with a specialised group with the intention of pursuing a career in that field in the United States. He was unable to participate in the trials due to being remanded in a previous criminal matter.
Applicant’s criminal record and intervention orders
The applicant has a modest, although recent and relevant, criminal history comprising three court appearances between July and December 2019. On 26 July 2019, he received a two-year adjourned undertaking following findings of guilt for dishonestly undertaking in the removal of stolen goods, possessing cannabis and two counts of committing an indictable offence whilst on bail. That undertaking was still in operation at the time of the alleged offending in the present matter.
Four months later, he was convicted of further dishonesty and bail offences, as well as intentionally causing injury, affray and assault by kicking, and received a combined sentence of 95 days’ imprisonment (reckoned as time served) and an 18-month CCO. The conditions of that CCO included attendance at rehabilitative programs, curfew, residence restrictions and judicial monitoring.
The following month, he was convicted of contravening the CCO, resulting in variation of that order. As stated, he was subject to the varied CCO at the time of the alleged offending in the present matter.
The applicant is the respondent to three Personal Safety Intervention Orders, naming the first complainant, his mother and two brothers as the protected persons. The orders were issued on 25 March 2020 in the Dandenong Magistrates’ Court and served on 9 April 2020. They operate until 24 March 2021.
Applicant’s contentions
The applicant relied on the following factors to demonstrate the existence of exceptional circumstances justifying the grant of bail.
Strength of the prosecution case
It is submitted that the prosecution case in the primary matter is weak for a number of reasons. Firstly, there are issues with the identification evidence, noting that all of the accused are young men of African appearance. The applicant was identified by the first complainant through the use of a photo board, however, it was submitted that the second complainant has not identified the applicant at any time. Further, there is no evidence as to whether the applicant was known to either of the complainants.
As to the CCTV and mobile phone footage relied upon by the prosecution, it was submitted that, while clear, it cannot be used to definitively identify the applicant.
With respect to the charges of armed robbery and intentionally causing injury arising from the second incident involving FA, it is submitted that the presence of a knife is inferred from the stab wound suffered by him, noting that he does not at any stage during the incident observe a knife. It is also noted that the resolution of the charges against six of the co-accused occurred on the basis of the prosecution withdrawing the charge of armed robbery and conceding that there was no evidence of any of those co-accused using or possessing a knife. Further, the applicant submitted that FA cannot identify the offenders or attribute specific acts to particular offenders.
Special vulnerability
The applicant was recently assessed by psychologist Warren Simmons as displaying symptoms of Post-Traumatic Stress Disorder (‘PTSD’) in the form of disturbed sleep, nightmares, and ‘hyperarousal and hypervigilance within the community’. In his report dated 4 April 2020, Mr Simmons attributes these symptoms to the applicant’s exposure to violence during schooling and, more recently, within the custodial setting. While his symptoms were assessed as not reaching the level of a formal diagnosis of PTSD, Mr Simmons observes that they may be exacerbated the longer he spends in custody.[4] Mr Simmons further states that, due to his past trauma, the applicant is more sensitive to violence directed at either himself or his friends
[4]Affidavit in Support, Exhibit EM-6, Report of Warren Simmons, Psychologist, dated 4 April 2020, para [21].
Relevantly, Mr Simmons observes that the applicant’s offending history coincides with his mother’s relocation to Perth and demonstrates a tendency to offend in the company of others, in the context of ‘sticking up’ for his friends, rather than due to any significant antisocial personality traits. He considers that the applicant’s risk of re-offending would be reduced if he were removed from his negative peer influences, for example by pursing his proposed plan for relocation to Colac, where he would be able to reside with his brother and work in a meat processing facility.
Delay
The applicant was remanded on 8 January 2020 and his matter is next listed for committal on 15 February 2021. It was submitted that the delay in listing the committal hearing can be attributed to the impact of the COVID-19 pandemic on the criminal justice system and, in the absence of that factor, the applicant could ordinarily expect to have his matter proceed to committal stage within three to six months of the filing hearing date.
It was further submitted that the applicant can similarly expect significant delays in the matter being listed for trial in the County Court. The applicant relies on the decision of Kellam J in Mokbel v Director of Public Prosecutions (No 2),[5] in which his Honour granted bail to the applicant on the basis that there was real uncertainty as to the when the committal hearing in that matter would proceed. In that case, the applicant faced a prospective delay of 19 months between arrest and committal, and three years from arrest to trial. At present, the applicant in this matter faces a 13-month delay to committal.
[5][2002] VSC 312.
Onerous conditions on remand
It was submitted on the applicant’s behalf that that the restrictions introduced into the prison system in an effort to prevent transmission of COVID-19, namely the suspension of personal visits, have isolated the applicant from his emotional supports, including friends and other members of the community. The applicant’s solicitor noted the comments of Croucher J in the recent bail decision of Thomas v Kitching,[6] in which his Honour acknowledged the impact of the COVID-19 pandemic in creating more onerous conditions of custody as well as uncertainty and helpless stemming from the pandemic as a whole.
[6][2020] VSC 206.
Stable accommodation, employment and family support
The applicant submitted that he does enjoy family support from his mother and his siblings. In particular, if granted bail, the applicant is able to reside with his brother, Mr Gatluak, in Bairnsdale.
Unacceptable risk
The applicant submitted that if granted bail his future life and lifestyle will look nothing like it did during the period of this offending. That submission was based on the following matters:
· It is proposed that he live with his brother in Bairnsdale, some 250 kilometres from the areas in which his prior offending has taken place (being the Dandenong, Springvale and Cranbourne areas);
· There does not appear to be an African community in the Bairnsdale area;
· His entire criminal history (and present) occurs in the context of being a part of a group, he has never offended alone. On bail he will necessarily be separated from any such individuals;
· He is willing to accept as a condition of bail that he not attend metropolitan Melbourne, save for attending court or seeing his parents;
· He will have the support and supervision of Youth Justice, who have completed a comprehensive plan if he is released;
· He will have work available to him;
· The applicant has demonstrated a change in attitude whilst he has been on remand; and
· His brother will make an undertaking to contact police upon any breach of bail.
Respondent’s position on bail
The respondent opposed bail on the basis that the applicant has failed to demonstrate exceptional circumstances justifying the grant of bail, and in addition, is an unacceptable risk of:
·endangering the safety or welfare of any person;
·committing an offence while on bail;
·interfering with a witness or otherwise obstructing the course of justice in any matter; and failing to surrender into custody in accordance with the conditions of bail.
Respondent’s contentions
Without elaborating in its written material, the respondent submitted that the applicant’s contentions with respect to the strength of the prosecution case are not conceded.
It was accepted however, that the applicant faces considerable delay in the progress of his matter as a result of the court’s response to COVID-19.
With respect to the applicant’s submissions regarding the effect of COVID-19 on applications for bail, the respondent cited the recent decision of Beach JA in Re Diab,[7] in submitting that the impact of the pandemic is just one of the surrounding circumstances to be taken into account in assessing the existence of exceptional circumstances and does not, on its own, reach that threshold. Further, it is stated that applicant ‘does not present as someone who is vulnerable to COVID-19’, noting his youth and lack of other risk factors. It is noted that, as at 21 April 2020, Corrections Victoria have not identified any cases of the virus within the Victorian prison system and there have been no lockdowns.
[7][2020] VSC 196.
The respondent made the following submissions in relation to unacceptable risk.
Endangering the safety or welfare of any person
It was submitted that the allegations against the applicant are serious and involve a high level of violence committed by multiple offenders against unknown victims, one of whom is a child. Further it was noted that the alleged offending involves the use of a weapon and was committed in daylight in the presence of bystanders. The applicant is described as having initiated the unprovoked attack against the first complainant. He also has a history of committing violent offences.
The respondent also relied on a report prepared by the informant in the primary matter, in which it is alleged that the applicant is a known member of the ‘Next Gen Shooters’ gang, a group that are known to regularly engage in violent and serious offending including home invasion and aggravated burglaries in order to steal vehicles for use in further offending, including unlicensed and dangerous driving resulting in serious high speed collisions. It was submitted that gang members are known to offend against vulnerable members of the community, robbing them of valuable items and selling them to purchase cheap vehicles to further their criminal activities.
Committing an offence while on bail
The applicant’s criminal history discloses ongoing disregard for court orders, noting that he has been proven to have contravened his CCO on one occasion and is alleged to have committed further offences during the period of that order. He also has four convictions/findings of guilt for bail offences in 2019.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent relied on the matters already identified in relation to risk in submitting that the applicant is an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice. Further, it was noted that the applicant is aware of the first complainant’s home address.
Failing to surrender into custody in accordance with the conditions of bail
Following execution of a search warrant at the applicant’s address on 2 January 2020, it is alleged that he actively avoided police detection and, once located, attempted to avoid arrest by running away. The respondent also relied on the applicant’s proven history of failing to answer bail.
The respondent does not accept that any bail conditions could be imposed to reduce the applicant’s risk to an acceptable level. The respondent had originally submitted that the bail address was unsuitable but when provided the Bairnsdale address that submission was no persisted with.
Conclusions
The applicant, Emmanuel Deng, is charged with affray, armed robbery, intentionally causing injury (two counts), theft of a motor vehicle, violent disorder, and robbery. He has also being charged with contravening a Community Corrections Order (‘CCO’), having been on that order at the time of this offending. That breach is principally related to his alleged involvement in these matters.
Because the applicant has been charged with armed robbery which is a sch 2 offence committed whilst on a CCO for other sch 2 offending, the applicant is required to demonstrate exceptional circumstances before I could admit him to bail. I am satisfied that exceptional circumstances have been shown in the following circumstances.
I regard the case of armed robbery as weak. That is the offence which triggers the operation of s 4AA(2)(c)(iv) of the Act. I note that no other of the co-accused have been dealt with for that offence. The applicant has now been in custody for six and a half months and the next hearing in this matter is listed for 15 February 2021. If he were to remain in custody for that period of time I am satisfied that the period on remand would quite likely exceed any sentence he was likely to receive, particularly a sentence potentially in combination with another CCO.
The present COVID-19 pandemic is to be taken into account in that the circumstances of detention for prisoners in the State of Victoria at the present time is more difficult and more restrictive than it would otherwise be. Although, not necessarily with particular reference to this applicant, we are faced with the general disruption of the criminal justice system and perhaps the inability to complete cases.
The applicant has available to him the support of Youth Justice Bail Support Service who have prepared a detailed report which was provided to me on the application. It is proposed to work out an appropriate program for the applicant during this period of bail. For those reasons exceptional circumstances are made out.
I am then obliged to turn to the question of whether or not the applicant would be an unacceptable risk of committing further offences on bail, or being a risk to the health and welfare of members of the community and of failing to answer bail.
Since the offending alleged here was committed at a relatively early stage of the applicant being released on a CCO, I would be foolish to say there are no risks. In particular, risks of the applicant reoffending and to a lesser extent but connected to it, a risk of endangering members of the public.
Ms Parkes who appeared on behalf of the respondent rightly observed that there is a particular risk related to what the applicant will be able to do to occupy each day if released on bail. That is a proper and important consideration. However, I am satisfied that because of the involvement of the Youth Justice Bail Support Service who are aware of those difficulties that that can be satisfactorily reduced.
A possible difficulty had arisen about where the applicant could, as is intended, live in Bairnsdale with his brother. It was suggested it would be necessary for him to be on the lease. In the final analysis, I am satisfied that that issue can be satisfactorily managed. It had never been intended that there be any co-tenancy agreement, it is simply that the applicant's brother is taking these premises in particular so that he can have accommodation for his brother.
It seems on the whole of the material, that Mr Gatluak is conscious of the need to keep his brother out of trouble and he understands that if his brother does not do so, his brother's future will be relatively bleak. I am satisfied by the imposition of relatively strict conditions and the fact that the applicant will be in Bairnsdale rather than being in the parts of Melbourne where he has been close to the associates with whom he offended. His offending for want of a better expression, has been essentially gang based. In those circumstances any level of risk that exists can be reduced to a not unacceptable level. Therefore, I intend to release the applicant on bail on his own undertaking and on the following special conditions:
1. He attend the Melbourne Magistrates’ Court on 15 February 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.
2. He reside at [redacted], and not change that address without the leave of the Court.
3. He remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of bail, except in the company of his brother Biel Gatluak.
4. 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.
5. He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Bairnsdale, or his or her nominee, between the hours of 6:00am and 9:00pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed.
6. He report to Youth Justice at 7 Service Street, Bairnsdale at 10:00am on 20 July 2020 and comply with all directions of the Youth Justice Supervised Bail Support Service.
7. He not contact, directly or indirectly, the co-accused, being SA, BW, DG, KK, CW, YG and Bigoa Thiep for the duration of the bail period.
8. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
9. That he not attend the Melbourne Metropolitan Area except for the purpose of attending his legal advisors, attending Court or in the company of his brother Biel Gatluak.
10. He not leave the State of Victoria.
11. He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 19 October 2020, and any further dates this Court appoints during the course of this order.
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