Re Bochrinis
[2020] VSC 411
•1 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0076
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Nicholas BOCHRINIS |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2020 |
DATE OF JUDGMENT: | 1 May 2020 |
CASE MAY BE CITED AS: | Re Bochrinis |
MEDIUM NEUTRAL CITATION: | [2020] VSC 411 |
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CRIMINAL LAW – Bail – Charges including aggravated burglary, extortion, intentionally causing serious injury, and committing an indictable offence whilst on bail – Compelling reason required to be shown – Earlier refusal of bail – New facts and circumstances constituted by increased delay due to COVID-19 pandemic – Trial unlikely to be listed until 2022 – Compelling reason now shown to exist – Risk posed by applicant can be reduced to an acceptable one by imposition of strict conditions – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Galbally & O’Bryan |
| For the Respondent | Ms C Foot | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
The applicant applies for bail in respect of serious charges he faces of aggravated burglary, extortion, intentionally causing serious injury, and committing an indictable offence whilst on bail. All charges relate to events alleged to have taken place on 13 September 2019 in Rowville. The circumstances of the offending were described in some detail in my reasons for refusing a previous application for bail made by the applicant on 13 March 2020. I will not repeat those circumstances here.
The application is now, and was on 13 March 2020, in the position of having to demonstrate the existence of a compelling reason that would justify the grant of bail pursuant to s 4C of the Bail Act 1977 (‘the Act’). On 13 March 2020, for reasons which I set out in my decision, I was not satisfied that a compelling reason in justification of a grant of bail had been shown to exist, and I therefore refused the application.
The application now before me has been brought on the basis of new facts and circumstances which have arisen since my earlier refusal of bail. Those new facts and circumstances are said to be established by the results of the impact of the COVID-19 pandemic on the criminal justice system, which will bring about a further period of delay in this matter before its final resolution.
The respondent accepts that new facts and circumstances have been established but still opposes bail on the basis that a compelling reason has not been shown to exist, and alternatively, that there would be an unacceptable risk that if released on bail, the applicant would endanger the safety of the public, commit an offence while on bail, or interfere with a prosecution witness.
One of the important matters relied upon in the previous application for bail before me by Mr Gullaci was the question of delay. At the time of that application, the application had been on remand for 5 ½ months. The committal hearing was listed for 4 May 2020, by which time the remand period would have been 7 ½ months. The trial was not expected to proceed until mid-2021, with the prospect of some further delay beyond that time.
The position now has changed, and to an extent that I consider to be very significant. The committal hearing will not proceed on 4 May 2020. The legal representatives of the applicant have been informed by the Committals Coordinator at Melbourne Magistrates’ Court that the committal is likely to be adjourned from 4 May to 30 November 2020, as indicated in the affidavit of Paul Galbally of 30 April 2020.
In the affidavit, Mr Galbally asserted, at paragraph 7:
In light of the anticipated committal hearing date of 30 November 2020 and the current state of the County Court criminal trial list, the applicant’s criminal trial could not reasonably be expected to be listed in 2021.
In the circumstances, I accept that the proposition advanced in that paragraph is a reasonable one. It seems to me that in light of the now certain delay, and the obvious fact that the trial of the applicant will be highly unlikely to be listed before the many matters which have already found their way into the crowded County Court lists, it is almost inevitable that the trial would not proceed until 2022, and at a time in that year which is itself uncertain. This is so in spite of the recently introduced measure permitting judge alone trials.
The expected delay, then, is now substantially more than that which I contemplated at the time of my refusal of bail on the previous occasion.
The question is whether, in the current circumstances as I assess them to be, a compelling reason now exists in justification of a grant of bail in this case. Mr Gullaci submits that I should be so satisfied. Ms Foote submits that I should not be.
Having considered afresh all of the matters relied upon by the applicant in combination on the previous occasion and now in proof of a compelling reason, I consider that a compelling reason has been shown to exist.
I have not changed my mind about the considerable seriousness of the alleged offending, the apparent strength of the prosecution case, and the disturbing picture presented by the CCTV footage of the applicant and his associates seemingly terrorising the victim of their alleged offending in his work place. Nor has the fact that the applicant was on bail for other alleged offending at the time of these events lost its significance. So, too, in the case of the attitude of the complainant, who I have no doubt, is as fearful now as he was in the past about a further attack upon him should those involved be released from custody.
Furthermore, insofar as a consideration of s 3AAA(1)(k) and (n) led me to conclude on the previous occasion that the likely sentence should the applicant be found guilty would in all probability exceed any period of time on remand, that may not necessarily have changed as things now appear.
Nonetheless, although the onus is on the applicant to show a compelling reason in this case, it cannot of course be forgotten that the guiding principles as set out in s 1B of the Act indicate in part that Parliament recognises the importance of (a) maximising the safety of the community and persons affected by crime to the greatest extent possible, and (b) taking account of the presumption of innocence and the right to liberty. Nor can the presumption that normally exists in favour of bail as set out in s 4 of the Act be considered to entirely fade away.
It must be acknowledged that even in the case of offending of the considerable seriousness of this case, and with the surrounding circumstances as exist here, the likely period of time the applicant would spend on remand has become a powerful matter pointing in favour of a grant of bail in this case.
As I said, I am satisfied that a compelling reason has been shown to exist. That then takes me to a consideration of the unacceptable risk test, in respect of which the onus is on the respondent.
There is no doubt that in light of the offending alleged here there is a risk of future conduct of the applicant within the terms envisaged by s 4E of the Act. Indeed, in most cases there is almost a risk.
In some cases, there is the reality that the proven criminal history of an offender shows a very strong likelihood of the particular offending the subject of consideration being repeated in future should the person have the opportunity to engage in it. That is not the case here. The criminal history of the applicant does not indicate that this type of serious offending has been within his repertoire. It is also very clear to me that the applicant would have a very clear understanding that the slightest effort by him to in any way contact the alleged victim in this case would inevitably lead to his prompt arrest and incarceration
There are many factors which were advanced in support of the existence of a compelling reason which would also go towards a consideration of the unacceptable risk test. These include the stable residence of the applicant, his family support and the availability of employment with his brother were he to be released on bail.
Having considered all of the circumstances of this case, I think that with the imposition of very strict conditions, such risk as does exist of the applicant endangering the welfare of the public, committing an offence while on bail or interfering with a witness can be reduced to a level that is acceptable.
In all of those circumstances, I have decided that it would be appropriate for bail to be granted on the following strict conditions:
The said Nicholas Bochrinis be admitted to bail on his own undertaking with one surety in the amount of $50,000 (fifty thousand dollars) on the following conditions:
1 . That he attend the Melbourne Magistrates’ Court on 4 May 2020 or such other date as is communicated to him by Melbourne Magistrates’ Court and then surrender himself, and must not depart without leave of the court and, if leave is given, must return at the time specified by the court and again surrender himself into custody;
2 . That he reside at 110 Fulham Road, Alphington VIC 3078 (‘the premises’);
3 . That he remain and be present at the premises between the hours of 10:00pm and 6:00am each day (‘the curfew hours’) for the duration of the bail;
4 . That he present himself at the front door of the premises during the curfew hours if and when called upon to do so by a member of Victoria Police;
5 . That he not attend any point of international departure;
6 . That he not leave the State of Victoria;
7 . That he surrender any valid passport held to the respondent within 48 hour of his release from custody;
8 . That he not contact, either directly or indirectly any witnesses for the prosecution, save for the respondent;
9 . That he not contact, either directly or indirectly the co-accused, being Engin Gemci, Dane William Corbet and Peter Andrew Fiore;
10 .That he comply with the directions issued from time to time by the Chief Health Officer of Victoria in respect of the COVID-19 virus;
11 .That he not enter, attend or pass through the suburbs of Rowville and Nunawading;
12 .That he not possess or use any drug of dependence as listed under the Drugs, Poisons and Controlled Substances Act 1981.
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CERTIFICATE
I certify that this and the 4 preceding pages are a true copy of the reasons for judgment of the Honourable Justice Tinney of the Supreme Court of Victoria delivered on 1 May 2020.
DATED this thirteenth day of July 2020.
Associate to the Honourable Justice Tinney
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