Re Application for bail by Zreika

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0221

IN THE MATTER of the Bail Act 1977

-and-

IN THE MATTER of an application for bail by Noah Zreika

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF JUDGMENT:	23 September 2020
DATE OF REASONS:	2 October 2020
CASE MAY BE CITED AS:	Re Application for bail by Zreika
MEDIUM NEUTRAL CITATION:	[2020] VSC 648

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CRIMINAL LAW – Application for bail – Exceptional circumstances established – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Avis	Sarah Tricarico Lawyers
For the Respondent	Ms T Bolton	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

On 23 September 2020 I granted bail to Noah Zreika (‘the applicant’). I indicated that I would provide my reasons which follow.

Introduction

On 31 March 2020, the applicant was arrested and charged with a large number of offences arising out of multiple connected aggravated burglaries and thefts on residential and commercial premises across Melbourne (‘Informants Smith and Chalmers matters’). The applicant was initially granted bail by the Melbourne Magistrates’ Court on 1 April 2020 however bail was later revoked on 11 May 2020. The applicant has been in custody since that day. By notice dated 8 September 2020 he applied for a grant of bail in this Court.

The applicant was refused bail at the Melbourne Magistrates’ Court on 19 August 2020 in the Informants Smith and Chalmers matters on the basis of an unacceptable risk that the applicant would commit an offence while on bail, endanger the safety or welfare of any person or interfere with a witness or otherwise obstruct the course of justice in any matter.

The matter is next listed on 14 December 2020 for committal case conference and committal mention at the Melbourne Magistrates’ Court.

The matters for which the applicant is on remand and seeks bail are:

(a)Informant Senior Constable Smith (‘the Informant Smith matter’) offence dates between 15 February and 28 March 2020
·Burglary (17 counts);
·Theft (16 counts);
·Criminal damage (22 counts);
·Aggravated burglary (person present) (five counts);
·Handling stolen goods (two counts);
·Possessing a drug of dependence (cocaine and cannabis) (two counts);
·Dealing with property suspected of being the proceeds of crime;
·Attempted aggravated burglary;
·Recklessly causing serious injury; and
·Theft of a motor vehicle.

(b)Informant Senior Constable Chalmers (‘the Informant Chalmers matter’) – offence dates between 31 March and 21 April 2020
·Theft of a motor vehicle;
·Burglary;
·Criminal damage (two counts);
·Attempted burglary; and
·Contravening a conduct condition of bail.

The applicant was originally charged in both the informants Smith and Chalmers matters in the Magistrates’ Court jurisdiction. However part of the offending in both matters is alleged to have occurred prior to the applicant’s eighteenth birthday. As such those matters fall within the Children’s Court jurisdictions and were subsequently withdrawn from the Magistrates’ Court and re-filed in the Children’s Court.[1]
[1]On 11 June 2020, the Melbourne Magistrates’ Court struck out the charges that were erroneously filed in that Court. The prosecution has reserved its right to make an uplift application in respect of the Children’s Court matters at a later date.

In addition while on bail the applicant is alleged to have committed further offending involving an assault upon a witness in the primary matters on two separate occasions (‘Informant Heymanson matter’). He was charged on summons in that on 31 July 2020.

The matters for which the applicant is currently on summons are:

(a)Informant Senior Constable Smith (‘the Children’s Court Smith matter’) – offence dates between 1 December 2019 and 13 February 2020
·Burglary (nine counts);
·Theft of a motor vehicle (three counts);
·Theft (eight counts);
·Criminal damage (12 counts);
·Aggravated burglary (person present) (three counts);
·Attempted theft of a motor vehicle; and
·Attempted theft.

(b)Informant Senior Constable Chalmers (‘the Children’s Court Chalmers matter’) – offence dates between 11 January and 19 January 2020.
·Theft of a motor vehicle (two counts);
·Burglary (three counts);
·Criminal damage (six counts);
·Theft (two counts);
·Handling stolen goods (two counts); and
·Attempted burglary.

(c)Informant Constable Heymanson – offence dates between 20 and 28 April 2020[2]
·Intentionally causing injury;
·Recklessly causing injury;
·Unlawful assault (two counts);
·Harassing a witness;
·Contravening a conduct condition of bail; and
·Committing an indictable offence whilst on bail.

[2]The Affidavit in Opposition indicated that the applicant is on remand in this matter, however, the Court has confirmed with the Magistrates’ Court that he remains on summons. The applicant confirmed by email that the applicant does not seek bail on those charges.

The next listing date for the Children’s Court Smith and Children’s Court Chalmers matters is 10 December 2020 at the Melbourne Children’s Court for mention. The Heymanson matter is next listed on 17 February 2021 at the Melbourne Magistrates’ Court for mention.

Co-accused

The applicant has six co-accused in these matters, being Mina Meikhail, Hussein Kamil, Fawaz Hajji, Thomas Toma, Hellal Kaddour and Montader Dowaih.

Only Meikhail, aged 18, is charged in all three of the same matters relating to the applicant, with largely similar offences as those alleged against the applicant. He faces a total of 159 charges in the Melbourne Magistrates’ Court. He has a criminal history including findings of guilt for resisting police, criminal damage, dishonesty, driving, weapons and drug offences, as well as breach of court orders and bail offences.[3] He was on a Youth Supervision Order at the time of the alleged offending. Meikhail was released on Youth Justice supervised bail on 4 June 2020.
[3]The charges against Meikhail are: 26 counts of burglary, four counts of burglary, 24 counts of theft, 34 counts of criminal damage, eight counts of aggravated burglary, two counts of attempted theft, two counts of handling stolen goods, two counts of drug possession, dealing with property suspected of being the proceeds of crime, attempted aggravated burglary, recklessly causing injury (informant Smith); 14 counts of burglary, 22 counts of criminal damage, four counts of theft of a motor vehicle, seven counts of theft, going equipped to steal, two counts of attempted burglary, drug possession, dealing with proceeds of crime (informant Chalmers); unlawful assault and harassing a witness (informant Heymanson).

Kamil faces charges in the Melbourne Magistrates’ Court brought by Informants Smith and Chalmers. His bail was revoked on 11 August 2020 and he is currently on remand.

Hajji faces charges in the Melbourne and Broadmeadows Magistrates’ Courts brought by Informants Chalmers and Heymanson. His bail was revoked on 26 May 2020 and he is currently on remand.

Toma has entered a plea of guilty in the Informant Chalmers matter. He is currently on remand.

Kaddour is charged in the Informant Chalmers matter. This matter is being dealt with at the Broadmeadows Magistrates’ Court. It appears as though Kaddour is charged on summons.

Dowaih is charged in the Informant Heymanson matter. This matter is being dealt with at the Broadmeadows Magistrates’ Court. It appears as though Dowaih is charged on summons.

Applicable Legislation
Exceptional circumstances test

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)(i), 4A(1A) and 4A(2) of the Bail Act 1977 (‘the Act’).

This is because the applicant is accused of committing Schedule 2 offences[4] while on bail in respect of other Schedule 2 offences.[5]
[4]Namely, contravening a conduct condition of bail in the Informant Chalmers matter – Schedule 2, item 30 of the Act.
[5]Namely, aggravated burglary in the Informant Smith matter – Schedule 2, item 22(b) of the Act.

In determining whether exceptional circumstances exist, the court must take into account the relevant ’surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.

Relevant to the circumstances of the present application, this Court has previously held that the youth of an applicant for bail (where not a child) is of some weight in determining whether exceptional circumstances have been made out, in combination with other factors, including weaknesses in the prosecution case, delay, and where the applicant is vulnerable in custody.[6]
[6]See Re Vucak [2009] VSC 167, [22], [29] (Kaye J); Re Scott [2011] VSC 187, [20], [26] (Kaye J); Re Scott [2011] VSC 674, [15] (T Forrest J); Andreevski v The Queen [2009] VSC 115, [10] (Coghlan J); Re Gloury-Hyde [2018] VSC 393, [34]-[35] (Priest JA). Cf Re Ghanim [2019] VSC 358, [37] (Lasry J); Re Sheen [2015] VSC 486, [20] (Priest JA).

Unacceptable risk test

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 applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.

The alleged offending

In summary, the prosecution case is that the applicant was involved in the commission of a number of connected aggravated burglaries, burglaries and thefts on residential and commercial premises across Melbourne with co-accused Meikhail, Kamil, Hajji, Toma, Kaddour and Dowaih between 1 December 2019 and 31 March 2020.

In the Informant Smith matter, relating to ‘kick-in’ style burglaries on multiple residential premises over a number of days, it is alleged that the applicant and co-accused have implemented a particular modus operandi involving the use of stolen vehicles to attend the targeted residences during the day, knocking on the front door to ascertain if anyone was present inside and then kicking in the door in order to ransack the property of cash, jewellery, accessories and electronic items. On each occasion, the targeted premises were all within close proximity to each other and the offences committed close in time.

In the Informant Chalmers matter, involving smash-and-grab style burglaries on commercial premises, the modus operandi is identified as involving attendance on the targeted premises between 3am and 6am, using a stolen vehicle in which one offender would remain while the others approached the targeted premises on foot, and then using a sledgehammer and crowbars to smash through any glass panels or force open the doors. Once inside, the offenders are alleged to have stolen large quantities of cigarettes and/or cash.

The offenders are alleged to have worn similar clothing for each offence, and used masks and hoods to conceal their identity.

The applicant was originally granted bail on 1 April 2020, but is alleged to have contravened a condition of that bail by way of contact with a co-accused and the grant was revoked on 11 May 2020. As stated he is also charged in a third matter before the Magistrates’ Court arising from allegations that the applicant assaulted a witness in the primary matters on two separate occasions, and that he had planned the assaults with co-accused Meikhail using the prison ARUNTA telephone system (the Heymanson matter).

First arrest and investigation

An investigation was commenced on 26 February 2020, when police intercepted a vehicle in the vicinity of a burglary in Roxburgh Park. The vehicle displayed false registration plates and appeared to have been driven by the applicant, with passengers Dowaih, Meikhail and Kamil present. Inside the car, police located approximately $1,076 in cash, the key to a Kia Cerato and several zip lock bags containing jewellery, a white powdery substance and vegetable matter believed to be drugs of dependence. Meikhail was also found in possession of a key to a Mazda CX7. The applicant and co-accused were arrested and interviewed. Dowaih and Meikhail each denied any knowledge of the drugs and stolen property, while the applicant and Kamil both provided ‘no comment’ records of interview. All four accused were released pending summons.

Subsequent investigations linked the applicant and co-accused to the additional burglaries or attempted burglaries. During one such incident at a residence, an elderly complainant suffered a cardiac arrest after being startled by the presence of intruders in her home, and required hospitalisation. The prosecution relies on the following evidence in support of the allegations:

·witnesses and CCTV footage allegedly identifying up to four offenders participating in burglaries wearing clothing said to match that owned by the applicant and co-accused;
·CCTV footage and witness accounts identifying a Kia Cerato being used in some of the burglaries that has been matched to the Kia Cerato key located by police in the vehicle search on 26 February 2020;
·items found in the vehicle search on 26 February 2020 being identified as property stolen in some of the alleged burglaries;
·a Mazda 3 allegedly used in some of the burglaries being identified as the same vehicle the applicant, Meikhail and Kamil were observed by a Victoria Police surveillance unit to be travelling in on 31 March 2020; and
·the shoe print of an Adidas NMD runner found at the scene of a burglary on 26 February 2020 is alleged to match the runners worn by the applicant when he was arrested that same day; and
·videos, photographs, communications and GPS location data stored in the applicant’s and co-accused phones said to link them to the offending.

Circumstances leading to second arrest and remand

Between the late evening of 30 March and early morning of 31 March 2020, the applicant, Kaddour, Hajji and Kamil allegedly drove together in convoy from Meikhail’s Roxburgh Park address in Kaddour’s Ford Focus and a stolen Mazda 3. At approximately 12.24am, the group arrived at an IGA supermarket located on Sydney Road, Brunswick, where CCTV footage allegedly depicts the group wearing masks or hoods covering their faces and smashing store windows. The applicant and co-accused fled the scene without stealing anything after being disturbed by witnesses.

Approximately 20 minutes later, the applicant and co-accused were again captured on CCTV allegedly attempting to gain entry to an Oak Park TSG store with a sledgehammer. It is alleged the group caused significant damage to the shopfront before an alarm was triggered and they fled, returning to Meikhail’s residence in Kaddour’s Ford Focus. The stolen Mazda 3 was allegedly left parked at the intersection of Serendip Crescent and Terrick Court, Roxburgh Park.

Kaddour, Hajji and Kamil left Meikhail’s residence and were arrested a short time later at a nearby 7/11 store, during which a crowbar and sledgehammer were located in the back of Kaddour’s vehicle.

At approximately 1.00am, the applicant and Meikhail were arrested at Meikhail’s home. A search warrant executed at that residence located distinctive clothing and a face mask alleged to have been worn by the offenders, together with a watch reportedly stolen in one of the burglaries and two pairs of shoes matching impressions found at some of the crime scenes.

The applicant, Meikhail and Kamil were transported to the Broadmeadows Police Station for interview. The applicant stated that he had no knowledge of the burglaries, while Meikhail and Kamil both provided ‘no comment’ records of interview. At the conclusion of his interview, Meikhail provided information leading to the recovery of a stolen Mazda CX7 containing stolen items. A search warrant was subsequently executed at the applicant’s Oak Park home where a jumper allegedly worn by Meikhail during a burglary was found, together with jewellery suspected to have been stolen in another burglary.

Subsequent search warrants were executed at Kamil and Dowaih’s respective homes on 2 April 2020 where stolen items and cash were located and seized. Dowaih was arrested and made admissions to participating in a series of burglaries, but refused to identify his co-accused.

While the Hand Up Briefs in these matters have been served, the prosecution are still awaiting the results of outstanding forensic analysis of a large number of exhibits and ARUNTA transcripts.

First grant of bail and revocation of bail

The applicant was charged and remanded in custody overnight. He was granted bail in the Informants Smith and Chalmers matters at the Melbourne Magistrates’ Court the following day with conditions including a prohibition on contacting the co-accused.

On 7 May 2020, investigators executed a search warrant relating to an ARUNTA phone conversation between the applicant and co-accused Meikhail on 21 April 2020. That conversation was determined to be in breach of the applicant’s conditions of bail. A charge of contravening a conduct condition of bail was subsequently filed against the applicant on 11 May 2020. Bail was also revoked in the Informants Smith and Chalmers matters on this date.

Applicant’s antecedents and submissions
Personal circumstances

The applicant is 18 years old. Prior to his remand, he resided with his mother and two younger siblings in Oak Park. He does not have a relationship with his father, who left the family when the applicant was approximately eight years old. He reports having witnessed family violence in his home prior to his parents’ divorce and states that his father’s absence has been destabilising for his family.

The applicant attended Hume Central Secondary College until year 10 and thereafter completed an electrical pre-apprenticeship course at Kangan TAFE. He then worked for a heating and cooling installation company for approximately one year, and then held a casual role with a concreting company until January 2020. If granted bail, he proposed to undertake a full-time building apprenticeship with a residential construction company, which is operated by a friend of the applicant’s family, Hassan Ramaihi.

The applicant has a history of cannabis use, commencing approximately two years ago. He self-reports engaging in regular use of cannabis in the period prior to his remand.

Criminal record

The applicant has no recorded criminal history. He was charged in 2019 with reckless conduct endangering serious injury and a number of driving offences which were dismissed by the Children’s Court following his successful completion of a four-week Youth Diversion Order. His remand on the present matters represents his first time in custody.

Matters put in support of bail

The applicant relied on the following grounds to establish the existence of exceptional circumstances:

Strength of the prosecution case

The applicant conceded that the alleged offending is serious and in one instance resulted in the hospitalisation of an elderly complainant. The applicant also acknowledged that the prosecution case must be taken at its highest on the present application but contended that the bail application is not the proper forum for determining issues that a jury must ultimately decide.[7]
[7]Citing DPP (Vic) v Ghiller [2000] VSC 435, [43] (Eames J).

Nevertheless, the applicant intends to contest the charges against him. He submitted that there is no direct evidence of his attendance at any of the alleged targeted premises or to support the claim that he was complicit in an agreement, arrangement or understanding with the co-accused to attend those premises to commit the alleged offences. He contended that the volume of charges does not necessarily make the case against him strong, particularly where there is no evidence to support a number of those charges. He submitted that the charges are variable in strength and are based on largely circumstantial evidence, noting that video footage later found on his phone and his presence in a vehicle with stolen items and other co-accused are not sufficient to establish his involvement beyond reasonable doubt. The applicant submitted that this evidence, coupled with the CCTV footage relied upon by the prosecution, could not be regarded as overwhelming evidence in support of guilt. He accepted, however, that he has a case to answer in the Informant Chalmers matter but contends that they are very different in nature to the charges in the Informant Smith matter.

Criminal history and compliance with earlier grants of bail

The applicant conceded that he has previously been placed on a Youth Diversion Order but submitted that he otherwise has no criminal history. He further conceded that bail was revoked in the Informants Smith and Chalmers matters on 11 May 2020 following his alleged contravention of a bail condition prohibiting his contact with the co-accused. He submitted that the alleged contravention should be considered at the lower end of seriousness and should not prevent his release on bail in the present application.

Vulnerability in adult custody

The applicant turned 18 in February 2020 and has been held in an adult prison for the first time. Despite being previously placed in a youth unit at Port Phillip Prison, he is currently held in a mainstream remand unit at Ravenhall Correctional Centre with a much older age group and without access to youth workers or other appropriate supports. He submitted that his placement in custody alongside adult persons often accused of more serious matters puts him at an increased risk of negative influence and exploitation which is detrimental to his health and wellbeing.

COVID-19 and onerous conditions of custody

The applicant submitted that his time spent in custody has been unsettling, with frequent moves between prisons and units and two periods spent in COVID-19 quarantine.[8] During those periods, he was allowed out of his cell for only 15 minutes per day and was permitted only limited human contact, having his meals provided through his cell door. He submitted that COVID-19 restrictions in custody have resulted in limited contact with his family and friends, restricted access to educational, employment and rehabilitative programs, an inability to receive personal property and difficulty preparing his defence. The applicant submitted that the resulting experience of isolation and hardship is particularly significant for him given his age and this being his first time in custody.
[8]In the first instance, for 16 days’ following his arrest, and in the second, for eight days after his transfer to Ravenhall Correctional Centre.

In addition, he submitted that those in custody are among those most at risk of contracting COVID-19[9] and states that he has encountered difficulties when attempting to practice social distancing and does not have access to disinfectants or wipes. He contended that the possible spread of COVID-19 in custody is an additional burden to be considered by this Court.[10]

Delay and likely sentence

[9]Citing Re Broes [2020] VSC 128, [39] (Lasry J).

[10]Citing Brown v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA). See also Re Tong [2020] VSC 141, [33] (Tinney J).

The applicant has been on remand since the revocation of his bail on 11 May 2020, and before that spent an evening on remand following his arrest on 31 March 2020. Noting that resolution discussions have been put on hold until further disclosure of evidence in these matters (which is anticipated to take approximately three to six months) coupled with the complexity of these matters, involving several co-accused, the applicant anticipates that a multi-day committal hearing will not be listed until 2021. Should the matters proceed to trial, the applicant anticipates a further delay of approximately 12-18 months owing to the County Court’s revised listing practices in response to COVID-19. In result, he contended that he could spend two to three years on remand if bail is refused. The applicant noted that in considering the issues of youth, delay, COVID-19 and the strength of the prosecution case (albeit in circumstances where the relevant test was compelling reasons), Priest JA in Re Elias[11] held that it would ‘border on inhumane’ to permit that applicant’s continued custody in the present circumstances.[12] He contended that there is a risk that his time on remand may exceed any sentence he may ultimately receive, and further, that the imposition of a custodial sentence is not inevitable given his age and lack of criminal history.

Accommodation and ties to the jurisdiction

[11][2020] VSC 502.

[12]Ibid [38].

The applicant is supported by his mother, siblings, grandmother and other members of his extended family. If granted bail, he proposed to reside at his grandmother’s home located at [redacted]. His grandmother currently resides at this address with the applicant’s mother, two siblings and his uncle, Abrahim Kassab. It is noted that Mr Kassab is currently on bail with respect to family violence offences. The applicant submitted that his uncle has complied with the conditions of his bail to date, which should reduce any concerns regarding risk.[13] He stated that this fact should not prevent him from also residing at that address.

Surety

[13]Letters from Mr Kassab’s counsellor confirm his compliance with bail. See Affidavit in Support, Exhibit CS-17.

The applicant’s grandmother, Halima Kassab, was willing to provide surety in the amount of $5,000. Ms Kassab was prepared to offer an undertaking to report any breaches of the applicant’s bail to police and is available to give evidence at the hearing of the application.

Availability of treatment and bail support services

Reports dated 31 August 2020 and 18 September 2020 assess the applicant as a suitable candidate for Youth Justice supervised bail focussed on addressing negative peer associations, developing pro-social engagements and ensuring bail compliance. If granted bail, the applicant will be required to attend weekly Youth Justice supervision appointments, will be referred to the Youth Support and Advocacy Service for alcohol and other drugs counselling, will be assisted to obtain a mental health plan through his general practitioner and supported to enrol in the educational component of his proposed apprenticeship. The applicant has not previously been afforded the chance to undertake supervised bail and contended that it is imperative that he is now provided this chance given his youth and lack of criminal history. He submitted that Youth Justice is able to appropriately monitor his bail remotely.

In addition, the applicant has further substance abuse counselling services available to him from Karly Doyle of Ontrack Counselling and Consulting.[14]

Employment

[14]Ibid Exhibit CS-13.

As stated, if granted bail, the applicant proposed to undertake a full-time building apprenticeship with [redacted], evidenced by a letter authored by Mr Ramaihi dated 4 September 2020.

Unacceptable risk

The applicant submitted that the above matters also are also capable of reducing any risk that his release on bail may pose to an acceptable level when coupled with stringent conditions of bail. He proposed conditions including a prohibition on his contact with the co-accused or prosecution witnesses (except for the Informants), that he possess only one mobile phone, and a requirement that he comply with all lawful directions of Youth Justice staff and undertake fortnightly urine screens.

Respondent’s position to the application

The respondent opposed the application on the basis that the applicant had not established exceptional circumstances justifying the grant of bail. In addition, the respondent opposed bail on the basis that the applicant posed an unacceptable risk of:

·     failing to surrender into custody in accordance with the conditions of bail;
·     committing an offence while on bail; and
·     endangering the safety or welfare of any person.
Matters put in opposition to bail
Strength of the prosecution case

The respondent submitted that the case against the applicant and each co-accused is a strong, circumstantial case that is put on the basis of coincidence evidence of a joint criminal enterprise. The respondent noted that the burglaries follow a particular modus operandi, that many of the targeted premises are closely connected in terms of physical proximity and timing, and are supported by CCTV footage depicting the offenders repeatedly wearing the same articles of clothing and utilising the same implements to gain entry to premises. The respondent noted that investigators have seized a large number of implements, items of stolen property and clothing linking the applicant and co-accused to a number of the burglaries, and further, that the applicant was found in close proximity to some of these items at the time of his arrest. The respondent submitted that the case against the applicant also relies on a number of videos located on his phone that allegedly link him to the commission of some of the offences, as well as ARUNTA recordings between the applicant and Meikhail in which evidence implicating the applicant is allegedly discussed.

As to the applicant’s claim that there is no evidence to support some of the charges, the respondent indicated that the informant will be called to give viva voce evidence at trial in respect of those charges.

Delay and likely sentence

With respect to the further disclosure of evidence in these matters, the respondent advises that the forensic analysis of all outstanding exhibits is expected to be completed in approximately six to 12 weeks, while the translation of ARUNTA phone recordings is still ongoing. The respondent concedes that the impact of COVID-19 may cause some delay in these matters and that such delay may be compounded by the outstanding disclosure issues.

In a written outline of submissions dated 22 September 2020, it was contended that the main issue in this case is whether the applicant will spend more time in custody on remand than any likely sentence he may receive. The respondent contended that, in light of the strength of the case and the nature of it as involving a protracted series of offending, some of it serious offending, he is likely to receive a lengthy term of imprisonment if convicted. The respondent contended that such a sentence would exceed his time spent on remand, even if a trial is not listed until late 2022 or early 2023.

Criminal history and compliance with earlier grants of bail

The respondent conceded that the applicant has no recorded prior convictions. However, it was disputed that he has a positive bail history, noting that in addition to the alleged contravention of the applicant’s previous grant of bail by virtue of his contact with co-accused Meikhail, he is alleged to have breached his bail by way of further offending as charged by Informant Heymanson, relating to the assault of a prosecution witness while he was on bail. The respondent submitted that ARUNTA recordings indicate that the assaults against the witness were planned by the applicant and his associates.

Impact of COVID-19

The respondent conceded that the impact of COVID-19 is relevant to the Court’s determination as to whether exceptional circumstances are established in the present application. The respondent, however, noted that the current health crisis is ‘simply part of the surrounding circumstances required to be taken into account’ and will not necessarily lead to a finding of exceptional circumstances or a grant of bail in every case. It was submitted that there is no supporting evidence provided by the applicant as to the conditions of his remand. The respondent relied on the recent decisions of this Court in contending that the impact of COVID-19 is but one aspect of the overall decision before the Court as to whether to grant bail.[15]

Accommodation, bail support services and employment

[15]Citing Re Tong [2020] VSC 141, DPP (Cth) v Lee [2020] VSC 275 and Re Ashton [2020] VSC 231.

In his report annexed to the affidavit in opposition as Exhibit GSH-16, Informant Chalmers noted concerns regarding the applicant’s proposed accommodation. In particular, he submitted that the applicant’s mother, Rana Kassab, who resides at that address appears to have been complicit in some of the alleged offending as she was found in possession of a firearm that underpins charges brought against co-accused Hajji and previously received a caution for possession of cannabis. It was said that she has demonstrated an inability to stem the applicant’s offending.

The respondent noted further concerns regarding the applicant’s uncle, Abrahim Kassab, who is also currently residing at the applicant’s proposed bail address, noting that he is currently on bail for serious family violence offences. The respondent advised that Mr Kassab has prior convictions for very serious family violence-related offending and for possessing explosives, ammunition and drugs of dependence. The respondent submitted that there is a risk that residing with his mother and uncle could undermine the applicant’s proposed drug education and counselling for family violence-related trauma that is proposed to be facilitated by Youth Justice. It was noted that the Youth Justice report did not appear to make mention of the further charges brought by Informant Heymanson in respect of breaching bail.

It was also noted that the applicant’s proposed employer also has a criminal history.

Surety

Informant Chalmers noted further concerns regarding the surety of $5,000 that is offered by the applicant’s grandmother, Halima Kassab. He advised that while giving evidence at the applicant’s previous application for bail, Ms Kassab stated that the money actually belongs to her children. As such, Informant Chalmers contended that she stands to lose nothing should the applicant contravene his bail.

In addition to the above matters, the respondent also contends that the applicant is an unacceptable risk of:

Failing to surrender into custody in accordance with the conditions of bail

The respondent submitted that investigators made numerous unsuccessful attempts to intercept the applicant and co-accused during the period of the alleged offending in the matters of Informants Smith and Chalmers. The respondent alleges that the applicant and co-accused avoided apprehension by driving vehicles at high speeds and in an erratic manner.

Committing an offence while on bail

The respondent noted that the applicant is alleged to have committed a number of further offences whilst on bail in the Informants Smith and Chalmers matters, including assaulting a witness in these matters on two occasions and contravening his conditions of bail by associating with co-accused Meikhail and Dowaih. The respondent submitted that he remains a risk of committing further offences if granted bail.

Endangering the safety and welfare of any person

The respondent submitted that the alleged offending in the matter of Informant Heymanson involves serious physical assaults and repeated threats directed at a prosecution witness. Further, the primary matters involve the commission of burglaries in the presence of children and elderly persons, and in one instance lead to an elderly complainant suffering a cardiac arrest immediately after the burglary of her home.

As to the circumstances giving rise to the Youth Diversion Order, it was submitted that that offending involved the applicant erratic driving at speed to evade police and resulted in a charge of reckless conduct endangering serious injury.[16] While acknowledging that this matter is not to be considered a prior conviction, the respondent contended that the offending is nevertheless relevant to the Court’s assessment as to risk. The respondent submitted that the applicant poses a risk of endangering the safety and welfare of innocent members of the community, including, but not limited to, witnesses in the outstanding matters.
[16]See Affidavit in Opposition, Exhibit GSH-15.

The respondent contended that no conditions of bail are available to mitigate these risks to an acceptable level.

Conclusions

I think I have got to the point where it seems to me that we should look at what has happened to Meikhail. There is a significantly stronger case against him than there is against the applicant. Meikhail is on bail. The distinction that exists between them is that the applicant is accused of interfering with a witness and put, essentially on the basis that he did so at the behest of Meikhail. Meikhail is, as yet, to be charged with that offending. Although principles of parity are not predominant in questions of bail, I think it is very difficult to say that, given the balance of the prevailing circumstances, that this man should be refused bail.

Expressed shortly there are a total of 68 charges in relation to which the informant, Detective Senior Constable Smith is the informant, offences said to have been committed between 15 February and 28 March of this year. Important for these purposes, the charges include five counts of aggravating burglary, one attempted aggravated burglary and one count of recklessly causing injury. Whether that will be the appropriate charge in the circumstances is a matter that the parties will eventually have to work out.

He also requires bail for a number of matters in which Senior Constable Chalmers is the informant. That includes charges of burglary and criminal damage. The two groups of matters can be separated in a general sense by saying that the matters involving Detective Senior Constable Smith involve burglaries and aggravated burglaries on domestic premises whereas the matters involving Senior Constable Chalmers are matters likely related to commercial premises.

The applicant was originally admitted to bail on 1 April of this year in relation to all of those matters to which I have referred, but it was alleged against him that in the intervening period he breached his bail in two respects. Firstly by contacting his co-accused Meikhail and secondly, at the suit of Meikhail, on two separate occasions interfering with a witness who had made statements which involved Meikhail in particular. That led to his bail being revoked on 11 May of this year and he has remained in custody since.

He has since been charged with the matters involving the breach of bail and the assaults arising at the same time. Those matters are proceeding on summons. Because the applicant turned 18 on 15 February of this year there are a number of matters of a similar kind to the ones with which he has been charged by the two informants, which fall within the jurisdiction of the Children's Court and as a matter of practical reality those matters are proceeding either on summons or as if they were on summons. That is, bail is not needed in relation to the Children's Court matters but they do form part of the background in this case.

There are a number of co-accused in the matter. The most significant for present purposes is the co-accused Meikhail who has been charged with a total of 159 charges and he was bailed subsequent to the events involving the applicant in breach of his bail and it has not been reported to me that he is otherwise done anything other than keep his bail.

The applicant finds himself in an exceptional circumstances position because he is accused of committing a sch 2 offence whilst on bail in relation to other sch 2 offences. All the aggravated burglaries are sch 2 offences. Any breach of bail is of itself as the law presently stands a sch 2 offence and that gives rise to exceptional circumstances. It might be moot in this case because he does not actually need bail for the breach of bail offences. Nothing is going to turn on that.

The question of whether or not exceptional circumstances have been shown is addressed in a number of ways. The matters which are put on his behalf are essentially strength of the Crown case, the COVID-19 pandemic, the fact that he has no prior convictions, the fact that he has the support of his family and extended family, that even though he is gone into adulthood he will necessarily be detained in adult custody and in terms of his present imprisonment at Ravenhall he does not have any access to youth support. His conditions in custody because of the COVID-19 pandemic are more stringent and onerous than they would otherwise be. There will be delay, and if the matter proceeds to trial in the County Court, it seems to me it can be said that it cannot proceed until term three or four in 2022, or more likely first term of 2023. So that is there is to be a delay of more than two years prior to him being able to get his trial.

It might be that if he were convicted of some of the more serious aspects of this case he could potentially become subject to a sentence greater than the period of delay. It is not exactly clear because if he is dealt with before he is 21, he would obviously be an applicant for a Youth Justice Centre sentence. Although any Youth Justice Centre sentence might be for three years there would be the possibility of parole after about half of that sentence being served.

Put that to one side, these types of cases are not going to be determined simply on the basis of what sentence he is likely to receive. Except to say this, if I was satisfied that he would receive a sentence significantly less than the period on remand that would in itself would amount to exceptional circumstances. In this case I do not regard that possibility that he might receive a sentence greater than his period on remand as a matter particularly against him in the circumstances. That would have to be weighed against an 18 year old in custody for the first time, in an adult prison, on remand for a period as long as two years.

It is also put that he has got accommodation available to him and that his grandmother, Halima Kassab, is willing to provide a surety in the sum of $5,000. But perhaps more importantly has undertaken to me that she would report any breach of bail.

In addition, the applicant would have the support of Youth Justice bail support program. And although there are limitations about that, that is to his advantage that he has that contact point or points and that those involved in that program would be able to give him significant support in organising the things that need to be organised, as they result to both questions of substance abuse and mental health. The applicant has work available to him by way of an apprenticeship, and again in relation to which support can be given to him by Youth Justice bail support.

The respondent's position on the application was that it could not be said that even in all of the circumstances, exceptional circumstances are made out. I am satisfied they have been made out for the reasons submitted by the applicant set out above. More importantly from the respondent's point of view there was a significant risk, an unacceptable risk, of the applicant committing an offence on bail and/or endangering the safety and welfare of any person.

In support of that, the strongest argument was what happened when the applicant was released on bail on 1 April of this year. He continued communication with his co-accused Meikhail and his then involvement in attacking the witness. He has of course since then spent from 11 May until today in custody to give him a pretty salutary reminder of how important the keeping of bail conditions is.

The informant had expressed concerns about the question of the provision of the surety and I understand what the basis of that was. I think the base concern probably arose out of the misunderstanding, which was the difference between whether Ms Kassab has the money by virtue of just having it or whether it was really other people's money. The confusion about that arose by her saying that the money had been given to her by others. It does not seem to me to necessarily follow that it was money given to her just for the purposes of providing the surety.

What is clear enough, if it is a cash deposit to be lodged in this case, if there is breach of bail, subject to what might happen under the Crown Proceedings Act, the money is there and held by the court until such time as it is otherwise to be resolved.

There is difficulty expressed about the accommodation, that is, living with the grandmother at her house because the grandmother's son (the applicant’s uncle), will also be staying at that house. He is a person on bail, he is a person with a significant enough criminal history, and it is therefore unlikely to be a good place for a young man such as the applicant to be.

I am satisfied that the uncle appears to be being reasonably supervised on bail and appears to be keeping his bail conditions. It is simply not practical in terms of the management of the applicant, to find some other accommodation in relation to which the risks might even be worse than those now suggested.

It was submitted on behalf of the respondent, that the Crown case cannot be said to be a weak Crown case. As a general proposition I accept that submission. On the hearing, the informant gave evidence in particular setting out the details of how the various alleged offending can be connected and connected to the applicant. It is not going to be an easy case to put together at the end of the day, but I think if it is all put together properly, it will be a relatively strong case. As I indicated to the parties, I think once all the evidence is in, this might be a case that calls out for reasonable negotiation between the parties. But that is all now for another day.

So, in those circumstances, I am not satisfied in applying the second step of the test for the granting of bail, that the applicant is an unacceptable risk, and under those circumstances, I will grant him bail.

Under other matters, I will include that the court is satisfied that exceptional circumstances exist and that it has not been shown that the applicant is an unacceptable risk for the reasons announced this day and that his grandmother Halima Kassab gave an undertaking to the Court that she would report any breach of bail or bail conditions to the police.

I will order that Noah Zreika be admitted to bail on his own undertaking and with one surety in the sum of $5,000 on the following special conditions:

1. He attend the Melbourne Magistrates’ Court on 14 December 2020 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 9:00pm and 6:00am each day for the duration of bail.

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 each Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Broadmeadows, 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 abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

7. He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.

8. He comply with all lawful directions of any officer of the Youth Justice Supervised Bail Program and attend all appointments as directed by Youth Justice.

9. He not contact, directly or indirectly, the co-accused, being Mina MEIKHAIL, Hussein KAMIL, Fawaz HAJJI, Thomas TOMA, Hellal KADDOUR and Montader DOWAIH, for the duration of the bail period.

10. He not contact, directly or indirectly, any witness for the prosecution, except the informant.

11. He not leave the State of Victoria.

12. He undertake fortnightly urine screens and email the results to the informant.

13. He only have one mobile phone and provide that number to Police within 24 hours of being released.

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Citations

Re Application for bail by Zreika [2020] VSC 648

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Re Vucak [2009] VSC 167

Re Scott [2011] VSC 187

Re Scott [2011] VSC 674

[2020] VSC 648

23 September 2020