Re Application for Bail by Youssif Tawfik - [2017] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0099

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an application for Bail by YOUSSIF TAWFIK

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JUDGE:	Weinberg AP
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2017
DATE OF JUDGMENT:	13 July 2017
CASE MAY BE CITED AS:	Re Application for Bail by Youssif Tawfik
MEDIUM NEUTRAL CITATION:	[2017] VSC 405

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CRIMINAL LAW – Application for bail – Attempting to import commercial quantity of cocaine and other offences – Despite objective gravity of alleged offending, applicant prima facie entitled under Bail Act 1977 to bail – Not in ‘show cause’ situation – Whether ‘unacceptable risk’ of failing to answer bail – Relative youth of applicant – Conditions able to be imposed to reduce risk of absconding – Statutory presumption in favour of bail not rebutted – Bail granted – Bail Act 1977 s 4(1) – Criminal Code Act 1995 (Cth) ss 11.1 and 307.1.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Richter QC with Mr M J Gumbleton	Mulkoun & Co Lawyers
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

HIS HONOUR:

The applicant, Youssif Tawfik, was arrested and charged, on 18 January 2017, with having attempted, between 28 October 2016 and 8 December 2016, to import a commercial quantity of a border controlled drug (cocaine). He was subsequently charged, in March 2017, with a number of additional offences, including money laundering and use of false documents. He now seeks bail.

In summary, the charges brought against the applicant are as follows:

Charge

Maximum penalty

Act

1

Attempting to import a commercial quantity of a border controlled drug (cocaine) between 28 October 2016 and 8 December 2016

Life imprisonment

Criminal Code ss 11.1 and 307.1

2

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

2 years’ imprisonment + 120 penalty units

Criminal Code s 400.9(1A)

3

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

2 years’ imprisonment + 120 penalty units

Criminal Code s 400.9(1A)

4

Dealing with money reasonably suspected as being proceeds of crime (less than $100,000) on 18 January 2017

2 years’ imprisonment + 120 penalty units

Criminal Code s 400.9(1A)

5

Knowingly using a false document to the prejudice of another, namely the use of a false driver license to enter into a residential tenancy agreement on 12 December 2014.

10 years’ imprisonment

Crimes Act 1958 (Vic) s 83A(4)

6

Knowingly using a false document to the prejudice of another, namely the use of a false Medicare card to enter into a residential tenancy agreement on 12 December 2014.

3 months’ imprisonment + 25 penalty units

Crimes Act 1958 (Vic) s 83A(4)

7

Driving whilst unlicensed between 27 October 2016 and 18 January 2017.

3 months’ imprisonment + 25 penalty units

Road Safety Act 1986 s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 405
Decision Date: 13 July 2017

CaseChat Overview and Summary

The case of Re Application for Bail by Youssif Tawfik involves an application for bail by the applicant against charges of attempting to import commercial quantities of cocaine and other related offences. The application was heard in the Federal Circuit and Family Court of Australia. The applicant, Youssif Tawfik, faced serious allegations that carried significant penalties, yet he sought bail under the Bail Act 1977. The court was tasked with determining whether the objective gravity of the alleged offences outweighed the applicant's prima facie entitlement to bail and whether there was an unacceptable risk that he would fail to appear in court if granted bail.

The legal issues before the court were whether the statutory presumption in favour of bail under the Bail Act 1977 had been rebutted and whether the risk of the applicant failing to appear was such that bail should be denied. The court considered the seriousness of the alleged offences, the likelihood of the applicant absconding, and the relative youth of the applicant as mitigating factors. It was necessary to balance these considerations against the statutory presumption that a person accused of an offence is to be granted bail unless there are compelling reasons to the contrary.

The court held that while the objective gravity of the alleged offences was high, the applicant was prima facie entitled to bail under the Bail Act 1977. The court found that the applicant was not in a 'show cause' situation where exceptional circumstances would justify denying bail. The court determined that the risk of the applicant failing to appear could be mitigated by imposing suitable conditions, and that the statutory presumption in favour of bail had not been rebutted. The court ultimately granted bail with conditions to address the risk of absconding and ensure the applicant would appear in court.

In light of the above, the court ordered that Youssif Tawfik be granted bail subject to specific conditions designed to ensure his attendance at future court hearings. These conditions included a requirement for the applicant to reside at a specified address, to report to a bail supervision officer, and to surrender his passport. The court's decision reflected a careful balancing of the statutory presumption in favour of bail and the need to address the risk of the applicant failing to appear.

Orders