Re Application for Bail by Milad Khaia
[2015] VSC 778
•23 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0160
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by MILAD KHAIA |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2015 |
DATE OF RULING: | 23 November 2015 |
CASE MAY BE CITED AS: | Re Application for Bail by Milad Khaia |
MEDIUM NEUTRAL CITATION: | [2015] VSC 778 |
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CRIMINAL LAW – Application for Bail – Aggravated Burglary – Show cause situation – Whether unacceptable risk – Application refused – Bail Act 1977 (Vic) ss 4(2)(d), 4(3), 4(4)
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Emma Turnbull Lawyers |
| For the Respondent | Mr B Nibbs | Office of Public Prosecutions |
HER HONOUR:
Background
On 28 October 2015, the applicant, Milad Khaia, was committed for trial to the County Court sitting at Melbourne.
He was committed on the following charges:
(a) Aggravated Burglary – Firearm (charge 4);
(b) Two charges of Intentionally Cause Injury (charges 5 and 6);
(c) Unlawful Assault (charge 7);
(d) Prohibited Person Possess a Firearm (charge 8);
(e) Possess Cannabis (charge 9);
(f) Possess Methyl Amphetamine (charge 10);
(g) Possess Drug of Dependence – Prescription Drug (charge 11);
(h) Without Approval Manufacture/Store Unauthorised Explosives (charge 12);
(i) Two charges of Recklessly Cause Injury (charges 13 and 14);
(j) Reckless Conduct Endanger Life (charge 15); and
(k) Reckless Conduct Endanger Serious Injury (charge 16).
There are two co-accused, also on remand, for these offences: Mr Richard De Luca and Mr Dimi Sovolos.
Mr De Luca has been committed for trial to the County Court without bail, and Mr Sovolos is awaiting a committal hearing.
The case is listed for a final directions date of 6 July 2016 and for a trial date of 1 August 2016.
A previous application was made for bail on 28 October 2015 before the committing Magistrate, but bail was refused on the bases that the applicant had not shown cause why his detention in custody was not justified, and that the applicant posed an unacceptable risk of committing offences whilst on bail.
The applicant is 25 years of age, having been born on 1 January 1990.
He applies for bail before me on the charges to be heard in August next year.
He has no other outstanding charges and has just completed a 30 day sentence of imprisonment. The applicant was on bail for the offences for which he has now served a term of imprisonment, and those offences were dealt with by a consolidated plea at the Broadmeadows Magistrates’ Court on 28 August 2015.
Charges which proceeded to conviction included: driving whilst suspended, handling stolen goods, and obtaining property by deception.
A charge of trafficking a drug of dependence was withdrawn by police at the time of the plea hearing.
Circumstances of offences
The charges that the applicant now faces, which arise from an incident on 19 March 2015 at a residential address in Malvern East, are very serious.
They were committed whilst the applicant was on bail for the matters disposed of on 28 August 2015, and whilst also on a community correction order at that time.
The offences occurred at approximately 4:30 am, at which time one of the occupants of the premises was getting ready for work.
It is alleged that the applicant, together with the two co-offenders, entered the premises of the victims, bringing with them a .22 calibre long-arm firearm, a .22 calibre pistol, a machete, and a black bag which contained an oxy torch, sugar soap wipes, and cable ties fashioned into handcuffs.
Police allege that the offenders were disguised, and that the two co-offenders who entered inside the home became involved in a scuffle with three of the victims. It is alleged that the applicant was wielding a machete whilst Mr De Luca carried a pistol. The applicant is said to have wrestled the older male victim, whilst the younger male victim tried to wrestle both the applicant and Mr De Luca.
Shots were fired by Mr Sovolos, who stood outside the back door.
The female victim then jumped on the applicant from behind and is alleged to have pulled off his balaclava. She is also alleged to have pulled off De Luca's balaclava.
In the commotion that ensued, it is alleged that the De Luca lost his balance and dropped the bag that was later recovered from the scene by police.
In total, five shots were fired by Mr Sovolos from outside the door of the house in through the door at chest height, and a further two or three shots were fired from the handgun carried by De Luca.
The offenders decamped the scene and police attended.
The scene was processed for DNA and swabs were taken from the female victim’s hand.
Mr De Luca was interviewed in custody on 21 May 2015 by police but exercised his right to silence.
The applicant was arrested on 26 June 2015 at the residence he shared with his girlfriend in Pascoe Vale. On interview, he also exercised his right to silence.
He was charged with some drug offences arising out of the execution of a warrant on the date of his arrest on 26 June 2015.
The respondent opposes bail on the basis that the applicant must show cause why his detention in custody is not justified, and also on the basis that the applicant poses an unacceptable risk.
Relevant principles
The requirements of the Bail Act 1977 (Vic) (the ‘Act’) which govern this application include:
(a) Section 4(4), which relevantly provides:
(4)Where the accused is charged—
(a)with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence;
…
(c)with an offence of aggravated burglary under section 77 of the Crimes Act 1958 …
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified …
(b) Section 4(2)(d), which provides that the court shall refuse bail:
(d)if the court is satisfied —
(i) that there is an unacceptable risk that the accused person if released on bail would —
fail to surrender himself into custody in answer to his bail;
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
(c) Section 4(3), which provides that:
(3) In assessing in relation to any event mentioned in subsection 2(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say—
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment and background of the accused;
(c) the history of any previous grants of bail to the accused;
(d) the strength of the evidence against the accused;
(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
Applicant’s submissions
The applicant's argument in favour of bail was that the applicant had discharged his onus to show cause because the applicant could rely on:
(a) the alleged weakness of the Crown case;
(b) delay before trial;
(c) the applicant's lack of history of absconding on bail; and
(d) the willingness of the applicant's mother to provide a residential address for the applicant in Cragieburn.
In addition, it was argued that the applicant had not committed offences or interfered with witnesses during the period between the date of the aggravated burglary on 19 March 2015 and his arrest and remand in custody on 26 June 2015. It was the combination of these factors that led to cause being shown, so it was said.
The same factors were relied on to counter the argument that the applicant posed an unacceptable risk of committing offences whilst on bail, endangering the safety or welfare of members of the public, interfering with witnesses or obstructing the course of justice, or failing to answer bail.
Respondent’s submissions
The respondent submitted that the applicant:
(a) had failed to show cause why his detention was not justified, by reference to any individual matter or to the combination of factors relied on by the applicant; and
(b) posed an unacceptable risk of offending whilst on bail, interfering with witnesses, endangering the public, or absconding.
In particular, the respondent pointed to the serious nature of the charges and the likelihood that a substantial sentence of imprisonment would be imposed if those charges were found proven. This created a risk that the applicant would not answer his bail.
The prosecution also argued that the applicant’s history of obeying court orders was poor and that he had breached a community correction order, a suspended sentence, and driving prohibitions in the past.
Prosecution’s case
In oral argument before me, Ms Kaddeche for the applicant submitted that the central evidence said to incriminate the applicant was:
(a) firstly, the finding of biological material on the interior mouth area of a balaclava recovered from the crime scene shortly after the offenders fled; and
(b) secondly, the alleged phone contact eight minutes after the offending between the applicant’s girlfriend’s phone and that of the co-offender Mr De Luca.
The biological material on the first mentioned balaclava (a black balaclava with yellow and white stripes) was tested for DNA and compared with DNA derived from the applicant. A statement from Ms Salerno found that the biological material from the inside surface of the mouth region of the balaclava is 100 billion times more likely to be contributed to by the applicant than by another putative source.
Other evidence in the police hand up brief shows that Mr De Luca is alleged to have been the wearer of another balaclava recovered from the crime scene. It was found to contain blood and other biological material. That biological material is allegedly consistent with Mr De Luca's DNA on a probabilities basis.
Ms Kaddeche submitted that the case against the applicant was weak, in that it chiefly relied on the circumstantial evidence referred to above.
I do not agree with this assessment. Although it is true that a balaclava is a portable item, in this case the location of the DNA material near the mouth area of the balaclava is highly significant. That same balaclava was pulled from the head of one of the assailants by one of the victims.
It has been pointed out by Kaye J in In the matter of an application for bail by Ante Vucak[1] that it is not appropriate to express any concluded views as to the likely outcome of any future criminal trial when hearing an application for bail.
[1][2009] VSC 167 [32].
It is sufficient for me to say at this stage that this is not a case where the applicant’s prospects of acquittal are such that standing alone, or even in combination with the other factors he relies upon, they constitute cause being shown that his detention is not justified.
Delay
As to delay, the applicant conceded that the delay in this case is not inordinate. I accept that delay falling short of inordinate delay can sometimes, in combination with other factors, lead to cause being shown in favour of a grant of bail, for example as In the matter of Joshua Barban and Karl Anthony Barban.[2] I am not persuaded of that position in this case.
[2][2007] VSC 335.
Family support
I accept that the applicant is supported in this application by the presence of his mother and younger sister, and that the applicant's mother is willing to help him with accommodation and other general assistance. However, the applicant's history of abiding by court imposed conditions does not engender optimism for his capacity to keep the conditions of bail. This is especially highlighted by the fact that the alleged offending was committed whilst the applicant was on bail for other offences.
Offences allegedly committed in the interim
The applicant argues that he is not alleged have committed any offences during the three months between the aggravated burglary and his arrest and remand in custody. However, he was in fact found in possession of suspected drugs on the day of his arrest.
Conclusion
In summary, I consider that the applicant does pose an unacceptable risk of committing offences if granted bail, and of endangering members of the public or of interfering with witnesses.
The armed intrusion to the victims’ home and the attack on the three victims put them in significant danger.
The firing of guns in and around the home and the injuries inflicted on the victims place the case at the higher end of seriousness for charges of aggravated burglary.
The applicant knows who the victims are and where they reside.
The weapons from the crime scene have not been recovered.
The applicant's criminal history shows an overall lack of success in keeping the conditions of court orders, despite the fact that he did complete a large number of community work hours on his community correction order.
The opportunity for the applicant to reside with his mother and younger siblings is untested, given that he is now 25 years old and was previously residing independently with a girlfriend.
The prosecution’s case is not weak and the time until trial is not excessive.
In all the circumstances, especially the serious nature of the charges, the applicant has failed to show cause why his detention in custody until trial is not justified.
The application for bail is refused.
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