Re Barban & Barban
[2007] VSC 335
•31 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
PRACTICE COURT
No. 1536 of 2007
BAIL APPLICATION
IN THE MATTER of the Bail Act 1997
And
IN THE MATTER OF Applications for Bail of JOSHUA BARBAN and KARL ANTHONY BARBAN
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2007 | |
DATE OF ORDER: | 31 August 2007 | |
CASE MAY BE CITED AS: | In the matter of Joshua Barban and Karl Anthony Barban | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 335 | |
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Criminal law – Applications for bail – Show cause situation – Delay – Likely effects of delay – Parity with co-offender – Whether unacceptable risk of further offending or endangering public – Applications granted subject to strict bail conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Skinner | Angela Connor, Solicitor for Public Prosecutions |
| For the Accused | Mr C Heliotis QC | Tony Hargreaves & Partners |
HER HONOUR:
On 15 August 2007, the applicants, Joshua Barban and Karl Anthony Barban, were charged with numerous offences including intentionally causing serious injury and assault in company. Joshua Barban is charged with 18 offences, Karl Barban with 16 offences.
The charges arise out of an incident that occurred in the car park of a McDonalds store at East Doncaster on 4 August 2007. It is alleged that on that occasion the applicants and a male friend, Adrian di Gennaro, assaulted two men.
On 15 August 2007, both applicants applied for bail at the Melbourne Magistrates' Court. Bail was refused on the basis that the applicants were in a show cause situation and the magistrate found that there was an unacceptable risk of committing further offences. The applications to this court were made on 22 August 2007.
It is common ground that each applicant is in a “show cause” situation under s4(4) of the Bail Act 1977. The court is required to refuse bail unless the applicant shows cause why his detention in custody is not justified. The court is required to refuse bail if satisfied there is an “unacceptable risk” that if the applicant was released he would, as the Crown suggests, either commit further offences or otherwise endanger the safety and welfare of members of the public. The Crown does not allege in this case that there is any particular risk of either applicant failing to appear to answer bail. Here, there is considerable overlap between the factors which are said to show cause, and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a “two-step approach”.[1]
[1]As to which see the discussion by Maxwell P in Re Asmar [2005] VSC 487.
The case against the applicants
The incident was recorded by a surveillance camera at the McDonalds car park. It involved a vicious and cowardly attack. According to the summary of charges, many of the details of which were confirmed by oral evidence given by the informant, the following occurred.
The applicants and Mr di Gennaro left a nightclub in the early hours of Saturday 4 August 2007 and travelled in a taxi to the McDonalds car park. When they arrived there around 5.40 a.m., the two victims, Mark Talbot and Constantine Maniatakis, were sitting in a car which was parked in the car park. Looks were exchanged between the persons in the taxi and Mr Talbot, before Mr Talbot got out of his vehicle and came and stood near the taxi. Words were then exchanged between persons in the taxi and Mr Talbot, whereupon the applicants and Mr di Gennaro got out of the taxi and approached Mr Talbot.
Joshua Barban punched Mr Talbot once to the head, causing him to fall to the ground, apparently unconscious. Mr di Gennaro leant over Mr Talbot, spraying him in the face with a substance believed to be capsicum spray. Mr Talbot was kicked in the head several times; he was incapacitated on the ground throughout the assaults.
The co-accused then approached Mr Maniatakis, who had remained seated in his vehicle, avoiding the fight. Through the open window of the vehicle, Joshua Barban punched Mr Maniatakis in the head and Karl Barban kicked him with his left leg. Mr di Gennaro sprayed Mr Maniatakis with what is believed to be capsicum spray.
I will not go into further details of the assaults, save to say that it appears from the video that both Joshua and Karl Barban returned on at least one occasion to where Mr Talbot lay on the ground, apparently unconscious, and kicked him again.
The applicants' counsel conceded that there is no dispute as to the identification of the applicants as two of the three people involved in the incident at McDonalds. However, as the applicants both gave "no comment" records of interviews, there is no explanation before the court as to their version of events.
Both victims suffered from cuts and bruises, as well as from the effects of the spray which had been used on them. Mr Talbot suffered from the most serious injuries, requiring four staples to the back of his head. Thankfully, it appears that neither victim will suffer any long term injuries as a result of the attack.
I conclude for the purposes of these applications that the case against both applicants is a strong one. That said, the question of the strength of the case against an applicant is merely one of the factors to be considered when evaluating whether it is more or less likely that the person will meet the conditions of bail.
Applicants’ backgrounds
Karl Barban is 28 years old. He has no prior convictions, however he is currently facing a number of other charges for alleged violence:
(a) Offences, including intentionally causing serious injury and affray, arising from an incident at Crown Casino in the early hours of 30 October 2005;
(b) Offences, including intentionally causing serious injury and recklessly causing injury to a crowd controller and several patrons at the Eve Nightclub in the early hours of 20 August 2006.
He is also facing charges for driving offences on 10 May 2006.
Joshua Barban is 31 years old. He has several prior convictions for offences between 1995 and 1998, including intentionally or recklessly causing serious injury. I note in his favour that the last sentence imposed on him was in 1999, in respect of a 1998 offence, and he has no further convictions since then.
On the other hand, he was on bail when the current offences were committed. On 31 July 2007, he was at court in answer to charges of intentionally causing injury at the Grand Prix on 18 March 2007. He was bailed and remanded over to 5 November 2007. It is obviously of concern that, only a few days after that appearance in court, he appears to have been involved in this incident at McDonalds.
Until arrested on these charges, neither applicant had been in custody before.
Delay
The applicants have raised the question of delay on two bases. Firstly, they say that the likely delay until their trials is, in itself, unacceptable. Secondly, they argue that such delay is likely to be longer than the sentences that might be imposed if they are convicted of these offences.
Whether a delay is or is not so inordinate as to be sufficient to show cause must obviously vary from case to case. There is no particular point at which a delay necessarily becomes inordinate.
There is no dispute as to the likely delay before these charges will come on for trial. At the filing hearing on 15 August 2007, the magistrate ordered that the brief of evidence be served on or before 26 September 2007. If the brief is served by that date, a committal mention hearing is likely to occur around November 2007. A committal may thereafter be fixed for approximately March or April 2008. The current delay in the County Court between committal and trial is in the order of 15 months. It is common ground that the applicants’ County Court trial would not commence until around mid-2009.
All of those dates are minimum dates, in the sense that there is potential for delay. Based on the informant’s evidence about the completion of forensic and chemical testing, there is some reason to apprehend that the brief will not be ready by 26 September 2007.
As is often the case, the precise delay here is not certain because of the degree of forward-looking required, but on a best case scenario it appears that the applicants' trials, if they are committed for trial, would not commence until almost two years after their arrest.
It is not suggested here that the delay is due to anybody's fault. I accept that police and forensic scientists (and courts) have to do the best they can with limited resources. But delay itself, even without the apportionment of any blame, may be sufficient to exceed what our society regards as an acceptable period for a person to be imprisoned without trial. It is also not to the point to say that such a delay is the norm or usual.
It is a matter of concern that any person in the applicants’ position should spend at least two years in custody awaiting charges of this nature. When considered in combination with the other matters mentioned below, I am satisfied that such a delay is so inordinate as to justify the grant of bail.
Here, the applicants also argue that they would be likely to spend longer in gaol awaiting trial than the sentence which might be imposed if they are convicted at trial. I accept that may, in principle, be a relevant consideration. But I am not persuaded that would in fact occur in these cases.
On the evidence before me, the attacks on Mr Talbot and Mr Maniatakis appear to have been serious and intentionally inflicted. The Court of Appeal has in recent times affirmed the seriousness of the offence of intentionally causing serious injury and the need for sentencing judges to reflect that in their sentences.[2]
[2]DPP v Zullo [2004] VSCA 153; DPP v Ross [2006] VSCA 223; DPP v Giffen [2006] VSCA 219.
In the case of Joshua Barban, given the number and seriousness of these offences, combined with his prior convictions, I am not satisfied that any term of imprisonment which might be imposed would necessarily be less than two years. I agree with the Crown that his apparent participation in these offences could not be said to be at the lower end of the scale.
With his lack of prior convictions, and a slightly smaller number of charges, Karl Barban would reasonably expect to receive a lesser sentence than his brother.
The applicants are very fortunate that neither victim appears to have suffered permanent damage, otherwise their likely sentences would be heavier.
Of course their final sentences, if they are convicted, will also be affected by such matters as whether they plead guilty or contest the charges.
Effect of incarceration
The applicants also rely upon the likely effect of imprisonment until trial on their home and their business.
As set out in the affidavit of their solicitor, Mr Hargreaves, it appears that they have very substantial financial commitments in relation to a truck which they bought about three and half years ago and use in their business, JKB Transport Pty Ltd. The monthly loan repayments on the truck are approximately $1,760. Whilst they have been able to secure a casual driver to complete some of their contracted work whilst they have been in custody, I accept on the evidence before me that there is very real risk that they would lose their principal contract and the principal source of income for the business, were they both to remain in custody until the trial.
The cash flow from the trucking business is also used to service a mortgage over the Templestowe house which Joshua Barban owns. Both applicants contribute towards the mortgage. The monthly mortgage payments are approximately $3,600. They have no other source of income to meet those payments, and market rental would not be sufficient to pay the mortgage.
I am satisfied that there would be substantial financial consequences for both applicants were they to remain in custody until trial. There is a real possibility that they would lose their business and their home. That might not be sufficient, in itself, to persuade me to grant bail, but it assumes greater significance when one considers a likely delay until trial of about two years, and the question of parity.
Ties with the jurisdiction
The next matter relied upon by the applicants is that they have strong ties with the jurisdiction. Both men were born and raised in Australia, they are close to their family who live in Melbourne, and both are in long-term relationships with partners who live in Melbourne.
Joshua Barban is in the process of buying a house. Both applicants are employed and working in their trucking business and there is no suggestion in either case that they present a flight risk.
The ties with the jurisdiction would not in themselves be sufficient to justify bail, but add to the cumulative effect of the other relevant factors.
Parity
Of greater significance is the question of parity with the co-offender. Mr di Gennaro has been granted bail in respect of these offences. His role in the attack appears to be substantial. He has prior convictions and, although all the details of those are not known to me, it appears that they at least include convictions in 2003 for assault and intentionally causing serious injury.
Bail conditions
A bail application is not concerned with determining the issues which a jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury.[3] Nevertheless, the court is required to make an assessment of the risk that the applicant may commit a crime whilst on bail. It is widely recognised that the prediction of future dangerousness is notoriously difficult.[4]
[3]Eames J in DPP v Ghiller [2000] VSC 435.
[4]See for example, the comments of Maxwell P in Asmar op cit at [25].
Both applicants appear to present some risk to the community in terms of re-offending. The question of whether that risk is acceptable or unacceptable is a matter to which I have given a great deal of thought. At the end of the day, I am prepared to grant bail, albeit subject to very strict bail conditions. Those conditions will, I hope, have the effect of reducing to an acceptable level the risk that the applicants present.
The evidence is inconclusive as to the precise role which alcohol may have played in the commission of these or earlier offences. But there is expert evidence that both applicants have serious problems in relation to alcohol abuse. It seems likely that the problems which they experience in controlling their aggression are aggravated by their alcohol abuse. As suggested by their counsel, I will impose conditions that they not drink alcohol whilst on bail and that they be subject to random breath testing by the police.
These problems also need to be addressed by counselling, in order to minimise the potential risk to others. The applicants should not underestimate the seriousness with which they have to address these problems. It will be a condition of bail that they attend regular counselling with Mr Jeffrey Cummins, psychologist. This is not a formality. This is to attempt, as far as possible, to teach them how to control their anger and to handle alcohol responsibly, so that they do not find themselves in this situation again. If they do not take serious steps to address these problems, in the future they may well find themselves spending more time in the sort of conditions which they have experienced for the past two weeks.
As a number of the charges which they currently face in relation to this and other incidents arise out of events occurring in the early hours of the morning, I will impose the curfew which was offered by their counsel. I will also require them to install a landline telephone at their home, as offered by their counsel, and not to divert telephone calls from that phone to any other phone. The police will be entitled to check on their compliance with the curfew by telephone or in person.
The applicants should be under no illusions that any breaches of bail will be taken very seriously. Before ordering his release on bail, I will ensure that each applicant fully understands and agrees to the bail conditions which I propose to impose.
Conclusion
For these reasons, particularly having regard to the issue and likely effects of delay, and the question of parity, I am satisfied that each applicant has shown cause why his detention in custody is not justified. Subject to these strict terms and conditions, I am satisfied that any risk of offending or endangering the safety and welfare of members of the public whilst on bail is not an unacceptable risk.
Those are my reasons, which will be incorporated into the order as part of the order, pursuant to s4(4)(d)(i) of the Act.
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