Re Application for Bail by Ibrahim El-Sayah

[2016] VSC 716

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0155

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by IBRAHIM EL-SAYAH

---

JUDGE:	JANE DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2016
DATE OF JUDGMENT:	9 November 2016
CASE MAY BE CITED AS:	Re Application for Bail by Ibrahim El-Sayah
MEDIUM NEUTRAL CITATION:	[2016] VSC 716	(First revision 2 December 2016)

---

CRIMINAL LAW – Bail – Show cause situation – Whether risk unacceptable – Bail granted with strict conditions

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Saunders	Valos Black & Associates
For the Respondent	Mr A Tinney SC	Office of Public Prosecutions

HER HONOUR:

1. The applicant seeks bail in relation to nine charges of burglary, one charge of attempted burglary, five charges of theft and two charges of car theft. These offences were alleged to have been committed between 1 July 2016 and 9 August 2016. The applicant was arrested on 7 October 2016 and has been remanded in custody for 33 days. He is 21 years of age.

1. I accept that the applicant is required to show cause why his detention in custody is not justified as a result of having been previously charged with firearms-related offences in April 2016.[1] Those charges arose from an incident alleged to have occurred on 6 March 2016 where the applicant was said to have produced a handgun. There was some uncertainty in the affidavit material about whether the applicant had been charged with the firearms-related offences at the time he allegedly committed the index offences. In the event, the Informant for the current remand brief, Detective Senior Constable Long, testified that the applicant was served with a charge-sheet and summons on 25 April 2016 for the firearms-related offences.[2] Following the Informant’s evidence, counsel for the applicant did not persist with arguing that the applicant is not required to show cause.

   [1]Bail Act 1977 (Vic) s 4(4)(a).

   [2]Although her evidence as to the exact history of the firearms-related charges was incomplete and she was not able to fully explain why the charge-sheet and summons for the firearms-related offences bore a date of 20 August 2016.

1. The applicant relies on the following factors in favour of bail:

(a)   The applicant is young and is experiencing his first time in custody.

(b)   He has very strong support from his family, including several adult siblings and their partners, and he was supported at court by his mother, brother, sister and sister-in-law. His family are exemplary citizens, and most of his siblings are gainfully employed in responsible jobs.

(c)    His sister-in-law is willing to furnish a surety.[3]

[3]In the amount of $15,000.00.

(d)  The applicant is capable of undertaking paid employment, and has been offered a job.

(e)   The applicant is needed at home because his father has recently suffered a severe stroke and has only just returned to the family home from the rehabilitation centre. His mother is the fulltime carer of the applicant’s intellectually disabled sister. At the present time, neither parent is able to drive. If the applicant were bailed he could drive his mother to the shops for household groceries and members of the family to medical and other appointments.

(f)     Although the charges he faces arising from the current remand brief are serious, they occurred over a limited period of time.

(g)   His prior criminal history is quite restricted. A previous conviction for assaulting an undercover police officer (for which a community correction order (‘CCO’) was imposed) is dissimilar to the current charges alleging organised criminal dishonesty.

(h)   The firearms-related charges are heavily contested, and the applicant is entitled to the presumption of innocence.

(i)     Although the applicant’s compliance with the CCO has been somewhat below par, he has nevertheless complied to some degree with his community work hours.

(j)     The strength of the case against the applicant is hard to discern at this stage. In the absence of admissions, forensic evidence or identification evidence, it appears to depend on phone mapping and CCTV footage placing the applicant at the Rosebud Plaza on the day prior to that particular burglary. Whilst there may be telephone intercept product connecting the applicant to other suspects and to the alleged burglaries,[4] this may take a substantial period to be properly tested at committal and trial, there being five co-accused in all.

(k)   Two of the five co-accused have been granted bail, although the applicant concedes that they had fewer charges.

(l)     The Crown’s concern as to the risk of offending or endangering the public whilst on bail can be addressed by stringent bail conditions. The applicant would then be well aware that he would be subject to significant police oversight, such that any breach of the conditions of bail would result in an immediate revocation application.

[4]Which includes evidence of the applicant allegedly recruiting others to supply a car for the burglary at Newcomb.

1. Delay is therefore heavily relied on by the applicant as a basis for bail in conjunction with hardship to his family if he remains in custody. Another important consideration, it is submitted, is the applicant’s welfare in prison in light of his youth. Counsel for the applicant points out that the applicant has been in custody for 33 days but that the current charges may not reach trial for more than a year. He submits that, if bailed, the applicant will be on notice as to the precariousness of his circumstances as a person on bail for very serious offences. A combination of twice daily reporting, curfew conditions, non-association conditions, surety and related conditions would sufficiently address the issue of risk such that it can be reduced to an acceptable level.

1. The Crown opposes bail for the applicant, arguing that there is an unacceptable risk of the applicant committing offences on bail and endangering the safety of members of the public. The Crown also argues that the applicant has not discharged his burden to show cause why bail should be granted.

1. The Crown relies on the following main factors to support its position:

(a)   The alleged offending which led to the applicant’s remand in custody comprises serious criminality, including a modus operandi whereby commercial premises carrying high value goods, such as cigarettes, were targeted for burglary by a group of offenders in a joint criminal enterprise spanning different locations, both within and outside metropolitan Melbourne.

(b)   The value of the stolen property is substantial at around $350,000.

(c) There is evidence that a stolen car was used to travel to at least one of the targeted locations,[5] and it was detected being driven at a high speed by the offenders away from that location.

[5]Rosebud Plaza.

(d)  Phone mapping evidence and telephone intercept evidence are said to link the applicant to at least two of the locations that were targeted by the group in the burglaries. The Crown case cannot be said to be weak, although the Crown accepts that it relies on circumstantial evidence in tandem with telephone intercept evidence that will need to be assessed by the defence.

(e)   The applicant, although young and with a limited prior criminal history, was on a CCO at the time of the alleged offending. The Crown submits that he was not complying adequately with his CCO at the time of his arrest, in that his community work hours were deficient.

(f)     Of greater concern is the fact that the applicant allegedly committed the index offences, having already been questioned and charged with the firearms-related offences.

(g)   Despite the applicant’s submission that stringent bail conditions would adequately address the risk of offending or endangering the public, the applicant’s lack of compliance with his CCO and the present allegations of a spate of uncontrolled and serious offending mean that there is no reason to think that the applicant’s attitude and behaviour would improve.

(h)   Although the applicant relies on family hardship as a reason why bail should be granted, the Informant testified that the applicant had demonstrated little concern for family obligations according to conversations obtained from telephone intercepts during the period of the alleged offending.[6]

(i)     The Informant also expressed scepticism about the applicant’s offer of employment, stating that the potential employer is known to be an associate of those involved in the alleged offending.[7]

[6]The Informant testified that the telephone intercepts revealed frequent calls from the applicant’s mother late at night or in the early hours of the morning to ascertain his whereabouts.

[7]This was in reference to a possible job prospect offered in writing as part of the material put forth in support of bail..

1. As Redlich J observed in Haidy v DPP,[8] no grant of bail is risk-free. In considering the two competing positions, I am ultimately satisfied that the risk posed by the applicant can be met by very strict conditions of bail and that the applicant has shown cause that his detention in custody is not justified. I have reached this conclusion based on a combination of factors.

   [8][2004] VSC 247 [14], citing Williamson v DPP (Qld) [1999] QCA 356.

1. Although at 21 years of age the applicant is not a child for the purposes of the Bail Act 1977, I have taken into account his relative youth, the fact that this is his first time in custody,[9] his lack of significant criminal history and the likely delay in these matters coming to trial. I am also influenced to some degree by the hardship experienced by the applicant’s family in the wake of his father’s severe stroke and the current absence in the family home of an adult who is able to drive. I have also taken into account the welfare support offered by the applicant’s extended family, which has been underlined by their attendance at court for this bail application.

   [9]See, eg, R v Goodwin [2015] NSWSC 2107 [4] (Harrison J).

1. I order that the applicant be admitted to bail on his own undertaking with one surety in the amount of $15,000.00 on the following conditions:

(a)   He reside at [address redacted];

(b)   He report to the Officer in Charge of the Broadmeadows Police Station at 15 Dimboola Rd, Broadmeadows VIC 3047 or his or her nominee twice daily, once between 6 AM and 12 PM and once between 5 PM and 9 PM;

(c)    He remain at his place of residence between 10 PM and 5.30 AM;

(d)  He present himself to the front door of his place of residence upon request by a police member during the curfew hours specified in paragraph 8(c);

(e)   He not contact any witness for the Prosecution except the Informant or his or her nominee;

(f)     He not contact [names redacted], or any person allegedly associated with the firearms charges on 6 March 2016;

(g)   He not contact, communicate or associate with any of the co-accused, Aladin El Sayed, Ghazi Omar, Badr Taleb and Bilal Ersoy, in this matter;

(h)   He not leave the state of Victoria;

(i)     He not apply for a passport;

(j)     He not attend any point of international departure;

(k)   He not drive a motor vehicle except between 10 AM and 5 PM and whilst in the presence of his mother or his father;

(l)     He not use any drugs of dependence; and

(m)He appear at the Magistrates’ Court at Melbourne on 13 December 2016 and thereafter as directed by the court.