Re Barda
[2019] VSC 716
•31 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0219
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER OF an Application for Bail by Mitchell Barda
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 October 2019 |
DATE OF ORDERS: | 30 October 2019 |
DATE OF REASONS: | 31 October 2019 |
CASE MAY BE CITED AS: | Re Barda |
MEDIUM NEUTRAL CITATION: | [2019] VSC 716 |
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CRIMINAL LAW – Application for bail – Charges of burglary, theft of motor vehicle, committing indictable offence whilst on bail, theft, attempting to forge prescription for drug of dependence, and using false document – Schedule 2 offending – Whether ‘exceptional circumstances’ made out – Potential for remand period to exceed term of imprisonment – Exceptional circumstances established – Whether applicant an ‘unacceptable risk’ – Therapeutic services available to applicant – Applicant’s partner due to give birth – Applicant not ‘unacceptable risk’ – Bail granted – Bail Act 1977 ss 3AAA(1), 4, 4AA(2)(c)(i), 4A(1A).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D M Caruso | James Dowsley & Associates |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
The applicant, Mitchell Barda, was arrested on 1 October 2019. He faces two sets of charges involving offences said to have been committed in September and March 2019, respectively.
In the first matter, hereafter described as the ‘Martin matter’, the applicant is charged with burglary, theft of a motor vehicle, committing an indictable offence whilst on bail, and theft. These offences were all said to have been committed between 19 and 20 September 2019.
With regard to the second matter, which I shall call the ‘Smith matter’, the applicant is charged with theft of a motor vehicle, theft, attempting to forge a prescription for a drug of dependence, and using a false document. These offences were said to have been committed on 16 and 19 March 2019.
In an affidavit affirmed by the applicant’s solicitor in support of this application for bail, it was foreshadowed that the applicant will plead guilty to the charges brought by Smith. In this affidavit, it was indicated that he intended to contest the charges in the Martin matter. However, during the hearing of this application, counsel for the applicant informed the Court that fingerprint evidence had recently been disclosed to the defence, indicating that the applicant’s fingerprints had been located on the outside of the vehicle, the subject of the charges in the Martin matter. I will return to the significance of this development later in these reasons.
At the time of the offending giving rise to the Martin matter, the applicant was subject to two separate grants of bail. The first related to two sets of charges involving driving, dishonesty, and drug offences said to have been committed in March 2019. The second related to some seven charges involving drugs, driving, and various bail offences that are scheduled to be dealt with by way of contest mention at the Moorabbin Magistrates’ Court on 21 November 2019. These offences were said to have been committed in August 2019, a month or so before the Martin matters arose. The applicant was granted bail on 14 August 2019, with conditions including that he not drive a motor vehicle, or consume alcohol.
Committing an indictable offence whilst on bail is a ‘Schedule 2’ offence under the Bail Act 1977.[1] The applicant is said to have committed that offence whilst on bail for another Schedule 2 offence. Accordingly, bail must be refused unless the Court is satisfied that ‘exceptional circumstances’ exist that justify the grant of bail.[2]
[1]Bail Act 1977 s 30B, sch 2 item 30 (‘Bail Act’).
[2]Ibid s 4AA(2)(c)(i).
The applicant has been in custody since his arrest on 1 October 2019. On that day, he was refused bail in the Moorabbin Magistrates’ Court. This was on the basis that he had not demonstrated exceptional circumstances.
The Smith matters are next listed for mention on 9 January 2020, the same date that the Martin matters are listed for contest mention.
In relation to the Martin matters, the prosecution alleges that between about 12:05 pm on 19 September 2019 and 12:10 pm on 20 September 2019, the applicant broke into a garage located adjacent to a house at East Bentleigh. Once inside, the applicant began searching through items stored in the garage. In the process, he is said to have moved two bicycles, leaving behind on one of them, a latent fingerprint. Having located the keys to a Holden Commodore parked inside the garage, he began loading various items found in the garage into the vehicle. He then drove off in the Commodore, taking various items valued at about $2,000 with him.
The Commodore was found several days later, parked outside a house about 500 metres from the applicant’s home, in East Bentleigh. The vehicle had been given stolen registration plates. It also contained several discarded syringes and cigarette butts.
The applicant’s fingerprints were not initially detected in or about the vehicle. However, police did find two other fingerprints on the body of the vehicle, one of which was said to belong to a James Adaras, a former schoolmate of the applicant who lives near him in East Bentleigh. As indicated, there is now evidence of the applicant’s fingerprints having been located on the front exterior window of the vehicle. Plainly, this casts new light upon the strength of the case against the applicant in relation to the Martin matter.
With regard to the Smith matters, the applicant is alleged to have attended a Bentleigh residence at about 7:00 am on 16 March 2019. He was accompanied by his partner, Lillian Clifford. Once there, he is said to have accessed a Toyota Hilux utility vehicle parked outside the address, and disengaged the park brake. He drove the vehicle for about 10 metres before it came to a stop, after which, he was unable to start the engine again. It is alleged that he took a number of items from the vehicle, valued at about $200.
It seems that the owner of the vehicle ran outside his home, and saw that it was being driven off. He used his phone to take photos of the applicant and his partner. He subsequently provided these images to police.
Also in relation to the Smith matters, at about 5:30 pm on 19 March 2019, it is said that the applicant attended a chemist shop in Hampton East in possession of two forged medical scripts for Morphine, Xanax, and Endone. He presented these scripts to the pharmacist, who was, at once, suspicious regarding them. The chemist asked the applicant to provide his phone number, which he did. Subsequently, police obtained CCTV footage from the chemist shop.
When arrested on 1 October 2019, the applicant made a ‘no comment’ record of interview in relation to both matters.
The applicant is currently aged 22. Prior to being remanded, he lived primarily with his parents and his partner in East Bentleigh. It seems that she is due to give birth to their child in early December of this year. Between February and August 2019, the applicant lived with Ms Clifford and her mother at a different address.
The applicant has been employed in the past as an apprentice carpenter. He qualified in carpentry in about April 2019, but was unemployed at the time of his arrest.
The applicant has dyslexia, and was diagnosed with epilepsy at the age of 15. In 2017, he experienced several convulsive seizures and is now under the care of a neurologist.
In late 2018, the applicant lost a close friend to suicide. As a consequence, he self-referred to a psychologist. He was diagnosed with anxiety, depression, and severe stress.
The applicant has a limited criminal history. He was twice found guilty of possession of a drug of dependence, and also found guilty of possession of a prohibited weapon. On 24 May 2019, he was placed on a three month good behaviour bond for these matters at the Frankston Magistrates’ Court.
Section 4 of the Bail Act makes it clear that the applicant is entitled to bail unless, for some reason, the Court is required to refuse bail. Section 4AA(2)(c)(i) provides that the applicant must overcome the ‘exceptional circumstances’ requirement because he is charged with a Schedule 2 offence, said to have been committed while he was on bail for a Schedule 2 offence. Accordingly, the applicant must establish exceptional circumstances if he is to have any possibility of being granted bail. In other words, pursuant to s 4A(1A), bail must be refused unless exceptional circumstances are demonstrated.
The applicant has the burden of establishing the existence of exceptional circumstances.[3] In considering whether such circumstances have been shown, the Court is required to take into account the ‘surrounding circumstances’ as outlined in s 3AAA(1).
[3]Ibid s 4A(2)
In order to meet the exceptional circumstances threshold, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail.’[4] Of course, exceptional circumstances can be shown through a combination of factors, including those personal to the applicant, as well as matters such as the strength or weakness of the prosecution case, undue delay, or any unusual features of the alleged offending.
[4]Re CT [2018] VSC 559, [64] (Champion J), citing with approval Re Sam [2017] VSC 91, [22] (Beach JA).
Of particular importance, as regards this application, is the fact that this Court has held that the realistic possibility that the applicant will receive a custodial term of less than the period which may ultimately be spent on remand can amount to exceptional circumstances.[5]
[5]Re DR [2019] VSC 151, [56] (Champion J); see also Re Dillon [2019] VSC 80, [41] (Maxwell P); Re Logan [2019] VSC 134, [72] (Elliott J).
The next stage of the process, assuming that exceptional circumstances are shown, is to consider whether there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person; commit an offence while on bail or interfere with a witness; otherwise obstruct the course of justice in any manner; or fail to surrender himself into custody. Once exceptional circumstances have been shown, the onus shifts to the prosecution, so that it must establish that any relevant risk is unacceptable. Section 4E(3) requires the Court to, once again, have regard to the ‘surrounding circumstances’ contained within s 3AAA(1). The Court must also consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it will not be considered ‘unacceptable.’[6]
[6]Bail Act s 4E(3)(b).
Finally, when interpreting the Bail Act, the Court is required by s 1B to take into account the various matters set out in subsections (1) and (2).
In support of the grant of bail, the applicant contends that a series of matters, in combination, demonstrate exceptional circumstances. These include the nature and gravity of the alleged offending. In relation to the Smith matters, to which the applicant proposes to plead guilty, he submits that the charges of theft cannot be regarded as serious examples of those particular offences. The theft of the vehicle was poorly planned, and consisted of driving it a distance of some 10 metres or so. The items stolen from the vehicle were valued at only about $200.
As regards the Martin matters, the applicant submits that the charges of burglary and theft of a motor vehicle are to be viewed as ‘mid-range’ examples of these offences. It is not suggested that any of the residents of the premises were at home at the time of the alleged offending. There were no aggravating factors of any particular gravity associated with the commission of these offences.
Whereas the applicant acknowledged that the evidence in support of the Smith matters was powerful, he initially submitted that the prosecution case in relation to the Martin matters was relatively weak. As indicated, however, following the developments raised by his counsel at the hearing of this application, that position no longer seems to be tenable. It is now likely, in my view, that these matters may resolve into a guilty plea.
Next, the applicant notes that he has no prior findings of guilt in relation to offences against the Bail Act, and a limited bail history. He acknowledges that the offending that is the subject of the present application is said to have taken place while he was on two sets of bail. However, he argues that he has been generally compliant with the conditions of that bail, including the requirements of the Court Integrated Services Program (‘CISP’).
The applicant’s parents are said to be supportive. If he is granted bail, it is said that he will continue to reside with them, together with his partner. His epilepsy requires regular treatment by a neurologist, and he needs twice-daily medication. Before being remanded in custody, he took part in CISP under the supervision of the Moorabbin Magistrates’ Court. It is said that he maintained an excellent attendance record while undertaking that program.
The evidence is that CISP services will be available to the applicant if he is granted bail. He was reassessed for that program the day before the hearing of this application. In a report prepared by Ms Kellie Couacaud, an Advanced Assessment and Referral Practitioner at the Metropolitan Remand Centre, it was made clear that CISP regards the applicant as suitable for ongoing case management if he is released on bail. It was noted that his family is supportive, and it was considered that the pending arrival of his child in December of this year would, in all likelihood, provide some assurance that the applicant would, at least on this occasion, comply with conditions of bail.
In addition, the applicant was undergoing regular substance abuse counselling sessions with Taskforce Youth Hub in Moorabbin. He has also been treated by a psychologist for the past year. That treatment would continue if bail were to be granted.
Most importantly, so far as this application is concerned, the applicant has been in custody since his arrest on 1 October 2019. At the hearing of this application, his counsel indicated that he may still contest the charges brought by Informant Martin. I was told by Mr Collins, who appeared on behalf of the informant, that due to the discovery of the fingerprint evidence, the hearing of that matter would likely now be listed for 9 January 2020, particularly if there were to be a plea. Accordingly, if bail were to be refused, the applicant would have been on remand for some four months before his case could be heard.
The applicant submits that, by reason of his youth and limited criminal history, an immediate custodial sentence may not, ultimately, be imposed for the present offences. That is so, even if he is ultimately convicted of all of them. He submits that even if a custodial sentence is imposed, it is unlikely to exceed the four months which he will spend on remand if bail were to be refused.
Finally, in relation to the prosecution’s contention that, if released on bail, the applicant posed an unacceptable risk of endangering the safety and welfare of others, the applicant submitted that the imposition of stringent bail conditions could ameliorate any such risk. He indicated that he was prepared to consent to any condition of bail that the Court saw fit to impose.
The prosecution opposes bail on the basis that the applicant has failed to demonstrate exceptional circumstances. Further, and in the alternative, the prosecution says that the applicant poses an unacceptable risk of endangering the safety and welfare of others, and of committing an offence whilst on bail.
The prosecution noted that CISP and family support were available at the time of the alleged offending, but that did not prevent the applicant from having committed the offences the subject of this application. It submitted that the evidence regarding the Martin matter was strong, as it now plainly is. It argued that the applicant had a history of engaging in property offences, and dangerous driving while under the influence of illicit substances. It noted that the applicant was under strict bail conditions for the offences for which he now seeks bail when they were committed. It was submitted that there were no conditions of bail which could sufficiently ameliorate the risk of reoffending to an acceptable level.
Having considered the competing contentions, I determined that the applicant had shown exceptional circumstances. There was a reasonable possibility that he might, ultimately, receive a non-custodial disposition, or a short sentence of imprisonment which would not exceed the period of remand.
I fixed a series of stringent bail conditions which, in my view, would ameliorate to some degree the risk that the applicant posed to the safety and welfare of members of the public, and render it less likely that he would reoffend.
For these reasons, I granted the applicant bail.
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