Re Dib
[2019] VSC 11
•25 January 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S CR 2018 0330
IN THE MATTER of the Bail Act 1997
and
IN THE MATTER of an Application for Bail by MAHMOUD DIB
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2019 |
DATE OF JUDGMENT: | 25 January 2019 |
CASE MAY BE CITED AS: | Re Dib |
MEDIUM NEUTRAL CITATION: | [2019] VSC 11 |
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CRIMINAL LAW – Application for bail – Whether a compelling reason justifying bail – Whether applicant, if bailed, presents an unacceptable risk – Application opposed – Applicant has family and business interstate to support – Applicant has criminal and bail history demonstrating indifference to orders of courts – Compelling reason established, but applicant is an unacceptable risk – Proposed conditions of bail proposed could not mitigate risk to be not unacceptable – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G A Georgiou SC | Dib & Associates |
| For the Respondent | Mr P McKimmie | Victoria Police Legal Services |
HIS HONOUR:
This is an application for bail by Mahmoud Dib, who was arrested and charged on 15 November 2018 with 23 offences concerning events which occurred between 29 November 2017 and 10 October 2018. The charges were originally as follows: stalking; using a carriage service to harass; refusing to leave a place after warning; threatening to inflict serious injury (two charges); unlawful assault; stating a false address when requested; theft of a motor vehicle; theft from a motor vehicle; handling stolen goods; driving while disqualified (two charges); using a firearm in a populous place; recklessly engaging in conduct endangering life; using a handgun without a licence; storing a firearm in an insecure manner; possessing cartridge ammunition without a licence; failing to answer bail; contravening bail conduct conditions (two charges); committing an indictable offence whilst on bail; using an unregistered motor vehicle; and using a false document. The informant in the matter is Senior Constable Scott Sheedy.
Following the events that gave rise to these charges, the applicant is also now the respondent to two personal safety intervention orders which name Richard Grieve and Mason Roberts as affected persons. They are known to the applicant through business associations.
At the time these offences are alleged to have been committed, the applicant was on bail in respect of two outstanding matters. At the time of his arrest for the offences charged by the informant Sheedy, the applicant was subject to bench warrants in relation to those two outstanding matters. He is now remanded in relation to all three matters.
The first of those outstanding matters involves charges of criminal damage, wilful damage and theft, and relates to events which occurred on 15 January 2017. The applicant was charged on summons in relation to these matters on 8 May 2017 by Senior Constable Ilona Day.
The second of the outstanding matters relates to charges of driving while suspended and driving a passenger in an open goods area of a motor vehicle (two charges), and relates to events which are alleged to have occurred on 30 September 2017. The applicant was also charged on summons in relation to these matters by Senior Constable Adam McGill, and that occurred on 23 November 2017.
On 10 January 2019, the applicant was charged on summons in relation to offences of speeding, driving a vehicle with obscured number plates, possessing a prohibited weapon without exemption or approval, driving while suspended, and stating a false name. These charges relate to offences alleged to have occurred on 13 October 2018.
The applicant has been in custody since his arrest on 15 November 2018, and was refused bail in the Sunshine Magistrates’ Court on 7 December 2018.
The three matters for which the applicant seeks bail were listed for contest mention in the Sunshine Magistrates’ Court on 23 January 2019. On that date, several charges were withdrawn by the prosecution (to which I will later refer). On that date also, the matter was adjourned to 6 March 2019 for a further contest mention. It is anticipated that the matters which are to be heard as a contest will proceed in the Magistrates’ Court somewhere between July and September 2019.
Because the applicant is charged with stalking involving a firearm and has a prior conviction for an offence of violence and is also charged with breaches of bail, the offence in respect of which he seeks bail in this application are offences which fall within Schedule 2 of the Bail Act 1977 (“the Act”). That is agreed between the parties. As a result, he must establish that a compelling reason exists that justifies a grant of bail.
I should note at this stage that the respondent effectively conceded that a compelling reason had been established based on the considerations identified in ss 3AAA(1)(k)–(l) of the Act. Mr McKimmie, who appeared on behalf of the respondent to the application, submitted there was a real likelihood that, if refused bail, the applicant would spend longer in custody than he would be likely to be sentenced to by a court for these offences. Despite that concession, I need to determine the matter.
The alleged offending
On 15 January 2017 at about 2.29 am, the applicant is alleged to have entered a lift of the Tiara Apartments in Southbank and reached up and grabbed a closed-circuit television camera installed in the ceiling and removed it from the fixture (charges 1 and 2).
Later that day, at about 2.15 pm, he went back to the Tiara Apartments and, as he walked through the ground floor lobby, he reached behind the unattended concierge desk and removed a waste paper bin, which he took to apartment No. 2107 and did not return it.
Those two offences concern the informant Day.
At approximately 11.40 pm on 30 September 2017, the applicant was seen driving a two-seater vehicle on Bourke Street, Melbourne in which were himself and three passengers. One was seated in the passenger area beside the applicant, but two were seated in the load carriage area without seatbelts. (These are charges 2 and 3 in relation to the informant McGill).
Inquiries revealed that the New South Wales driving licence which had been held by the applicant had been cancelled and he was disqualified from driving for two years as of 20 March 2017. That charge (charge 1) is also in relation to the informant McGill.
The Sheedy offences
In relation to the informant Sheedy, the offence dates being between 29 November 2017 and 10 October 2018, the charges relate to six incidents.
The evidence indicates that the applicant was employed as a repossession security agent for a company, KOL Group Pty Ltd (“KOL”), which manages businesses that have equipment repossessed during insolvency disputes. KOL had an unresolved civil dispute which involved a large concrete boom that had been repossessed. Nationwide Concrete Pumping claimed to be the legal owners of the equipment and agreed to pay the applicant $20,000 for its release.
Incident 1 – Stalking
On 29 November 2017, the applicant allegedly attended the business yard of Nationwide Concrete Pumping and approached the workshop manager, Richard Grieve. It is alleged that while walking towards Mr Grieve, the applicant revealed a handgun in the front of his pants before moving it to the rear of his pants in order to intimidate Mr Grieve. The two men spoke about money owed for the return of the concrete boom, and the applicant otherwise left without incident. Mr Grieve said that he felt fearful as a result of that contact, including that the applicant would return and be violent. These events, which are charge 1 in relation to the informant Sheedy, were partially captured on closed-circuit television.
Mr Georgiou SC, who appeared on behalf of the applicant, has indicated that this matter will be contested and made submissions about the strength of the evidence in relation to this charge, including, for example, that the closed-circuit television footage does not necessarily support the allegation that the applicant had shown a firearm.
Incident 2 – Offences against the person
On 19 December 2017, between 12.42 pm and 1.41 pm, Mr Grieve received six text messages and four missed phone calls from who the prosecution allege was the applicant (charge 2). It is sufficient to say for present purposes that the text messages were threatening.
Mr Grieve contacted police to express concerns that the applicant would attend the business premises again and threaten staff members, and, at 2.00 pm, the applicant did arrive at the premises. The premises make clear by the use of signs that there was no entry for unauthorised personnel and, as the applicant arrived, Mr Grieve approached him and asked him to leave, which he refused to do (charge 3).
Charge 4 concerns the conversation in which the applicant is alleged to have asked to speak to Mason Roberts, the managing director and business owner of Nationwide Concrete Pumping. When told by Mr Grieve that he did not know where he was, the applicant is alleged to have said, ‘Give me eight grand cash, or I’m going to skin Mason like a fucking pig, cunt’.
He is also alleged to have said to Mr Grieve, ‘I saw the pigs out the front, I’m not scared, I’ll do them as well’.
Some of the staff at Nationwide Concrete Pumping saw the altercation and moved towards Mr Grieve to assist him, at which point the applicant is alleged to have said, ‘Fuck off or I’ll shoot you and if you don’t believe me, try me’ (charge 5).
The applicant is then alleged to have moved in front of Mr Grieve, grabbed his shirt causing damage, and punched him in the chest (charge 6).
It is alleged that the combination of these incidents caused Mr Grieve to fear for his safety and that of other people (charge 1).
Police attended the scene, at which point the applicant (falsely) provided a residential address that he had never lived at (charge 7).
All of these incidents were captured on closed-circuit television and, according to the respondent’s written submissions, support Mr Grieve’s version of what occurred.
Incident 3 – Bail Act offences
The next category of offending are offences against the Act.
On 29 November 2017 and 19 December 2017, the applicant is alleged to have committed multiple indictable offences whilst on bail (charge 19). Additionally, having undertaken to appear at the Melbourne Magistrates’ Court on 9 January 2018, he failed to do so and a bench warrant was issued for his arrest (charge 17).
On 29 January 2018, the applicant was arrested and re-bailed with conditions, which included reporting to the Southbank Police Station on Wednesdays between 9.00 am and 9.00pm commencing 21 February 2018; and notifying the informant of any change of address.
On 6 February 2018, police attended the bail address and were advised by the resident that they had never heard of the applicant and that he had no permission to use that address as a condition of his bail (charge 18). Mr Georgiou has also made submissions about the circumstances in which that address was provided.
On 21 February 2018, the applicant failed to report to the Southbank Police Station in contravention of his bail conditions and has continued to fail to report since that date (charge 20).
Incident 4 – Uncharged matter
Incident 4 is an uncharged matter and, accordingly, I will not refer to it any further.
Incident 5 – Drive-by shooting
Following the contest mention of these matters on 23 January 2019, the charges concerning a drive-by shooting in Caroline Springs (charges 8 to 16) have been withdrawn. It is accepted by the respondent that these withdrawn charges are the most serious matters the applicant was charged with.
Incident 6 – Driving offences
The last incident concerns driving offences. On 4 October 2018, the applicant was observed by police driving in an erratic manner through Kew East. He was at a drive-through bottle shop. He was driving an unregistered vehicle (charge 21). He was still disqualified from driving (charge 22).
On 10 October 2018, the applicant was located by police in a stationary vehicle and he produced a New South Wales driver licence in his name. The only difference was that his first name on the licence appears as “Mohammed” as opposed “Mahmoud”. It is alleged that that was intended to deceive police and avoid apprehension (charge 23).
On 15 November 2018, the date of his arrest, the applicant was intercepted by police and, on his arrival at the Prahran Police Station, he declined to be interviewed or make any statement.
The applicant
The applicant is 33 years of age. He is the eldest of five children. He has four children between the ages of 6 and 16 who live with their mother in Sydney. The mother of the children is a homemaker and is unemployed, and she and the applicant are separated. The applicant is responsible for mortgage payments, as well as daily expenses and utilities at those premises. The mortgage is understood to have gone into arrears since the applicant’s arrest, although I am informed by Mr Georgiou that, in reality, the term has expired and that mortgage needs to be renegotiated. I am also told that the mother of the children cannot meet the children’s daily expenses, including their private tutoring and private school education.
The applicant also supports his grandmother, who lives in Sydney. The applicant’s father died when he was 17 years of age and he has no contact with his mother. He does have regular contact with his grandmother and she is on a pension and cannot meet her mortgage repayments. The applicant describes himself as being wholly responsible for these repayments.
The applicant has owned a truck driving logistics business since 2013 and is the sole operator of all the business accounts of that company. Since his arrest, the business has not been operating and his employees have not been paid. They are usually paid $1,600 a week, and four employees have since resigned.
Criminal history
The applicant has no criminal history in Victoria, but does in New South Wales, including:
(a)extensive driving offences between 1999 and 2016 for which, in the most serious of cases, he received suspended terms of imprisonment;
(b)failing to give particulars to the owner of damaged property on 25 February 2004;
(c)goods suspected of being stolen in or on premises on 23 February 2007;
(d)failing to appear in accordance with an undertaking of bail on 23 February 2007;
(e)failing to quit premises on 8 June 2008; and
(f)affray committed on 8 June 2008.
The competing contentions
The applicant relies on a number of factors in combination to establish a compelling reason for his release on bail. These include his challenge to the seriousness and strength of the prosecution case. In written submissions, the applicant submitted that there is not sufficient evidence to suggest that he actually committed any acts of violence, save for the allegations made by those whose trucks the applicant had authority at law to repossess. He further argued that the alleged offending all occurred at the beginning of 2018, and that it is not suggested by the respondent that the applicant has attempted to contact or interfere with any witnesses since then. He also describes his criminal history as “limited”. The applicant also asserts, as I have previously outlined, that there is both family and business which rely on him and that there will be a delay of some consequence before the charges are dealt with.
Finally, the applicant also argued that he does not pose a risk of further offending or a threat to public safety, or of interfering with any witnesses.
So far as the risk is concerned, there are a list of 12 conditions which are proposed to be applied in the event that the applicant is admitted to bail. The applicant proposes to reside at an address in Craigieburn and that he report to the Craigieburn Police Station twice a day, seven days a week. He also proposes that he will surrender his passports and that there be conditions relating to contact with any of the complainants or witnesses, either directly or indirectly.
A surety of $50,000 is offered by Serbulent Kol to secure the applicant’s attendance. The provision of a surety is relevant to the issue of risk, but, in my opinion, does not go to the issue of the existence of compelling reasons for granting bail to the applicant.
The respondent’s opposition to a grant of bail originally proceeded on the basis that a compelling reason that justifies the grant of bail has not been demonstrated. For reasons that I mentioned at the outset, that is no longer the position. Mr McKimmie, on behalf of the respondent, accepts that, given the delay and likely sentence to be imposed, and together with the other matters relied upon, it is open to me to conclude that compelling reasons have been established.
However, it is also submitted by the respondent that the applicant is a risk of engaging in the conduct identified in s 4E(1)(a) of the Act and that that risk is unacceptable. That submission was made having regard to the charges which the applicant faces being of a serious nature and his conduct in attending places of work and threatening people. In addition, reference is made to committing offences whilst on bail and failing to surrender into custody in accordance with the conditions of bail.
In the written material, the respondent noted that the applicant travels regularly between Victoria and New South Wales, and is the registered director of several businesses in New South Wales of which he is the only employee.
In addition, the respondent has submitted that the bail address nominated by the applicant as a proposed bail condition is unsatisfactory because it is the address of his partner, Summar Shehaya, who has significant and multiple criminal prior convictions for theft, obtaining by deception, failing to answer bail, unlicensed driving, contravening a community correction order, and is currently serving a 12-month community correction order.
Analysis
Section 4 of the Act provides that the applicant is entitled to bail unless the Act requires the Court to refuse bail, and s 4AA sets out the circumstances in which a two-step test applies to the consideration of a grant of bail. Section 4AA(3) provides that the ‘show compelling reason test’ applies to a decision whether to grant bail to a person accused of a Schedule 2 offence, which the applicant in this case accepts that he falls within and, therefore, must establish a compelling reason justifying the grant of bail. The burden of satisfying the Court that a compelling reason exists rests with the applicant. Section 3AAA sets out the matters that the Court must take into account in this process.
If I am satisfied that a compelling reason exists that justifies the grant of bail, I must then apply the unacceptable risk test pursuant to s 4D(1)(b) of the Act.
Furthermore, pursuant to s 4E(1), I am required to refuse bail if the respondent satisfies me that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person, or commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of the bail as fixed. Again, I am required to have regard to the surrounding circumstances in considering this question and to consider whether there are conditions of bail that might be imposed which would mitigate the risk so that the risk is not unacceptable.
I am also required to take into account the guiding principles set out in s 1B of the Act in which the Parliament recognised the importance of maximising the safety of the community and persons affected by crime to the greatest possible extent, as well as taking into account the presumption of innocence and the right to liberty. That section also recognises the promotion of fairness, transparency and consistency in bail decision-making, and finally, promoting public understanding of bail practices and procedures.
In relation to the meaning of ‘compelling reason’, as is now well known, this matter was considered by Beach JA in Re Ceylan [2018] VSC 361. His Honour concluded that the requirement to show compelling reasons why the detention of the applicant in custody is not justified is:
… an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show “compelling reason”, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[1]
[1]Re Ceylan [2018] VSC 361 [46].
His Honour went on to observe that it is not necessary for the applicant to show compelling reasons which are irresistible or exceptional, and that such a requirement would place the bar at too high a level.[2]
[2]Ibid [47].
In this case, taking into account the concession made by the respondent and the other surrounding circumstances relied upon, I am persuaded that the matters the applicant relies on do compel the conclusion that he should not be detained in custody. However, the next issue is whether the respondent has established that the risk that applicant would endanger the safety or welfare of any person, or commit an offence while on bail, or fail to surrender into custody is unacceptable. In my view, he has so established that proposition.
The applicant’s criminal and bail history shows, at best, an indifference to orders of courts. To that can be added the charges he currently faces in relation to breaches of bail to which I have already referred. The risk of his non-compliance with any orders made for bail is, in my opinion, unacceptable as the respondent has submitted.
It is true that a long list of conditions have been provided to me as being proposed to be imposed on the applicant should he be released on bail, but his history has demonstrated, in my view, a disregard for orders of courts and a willingness to refuse to comply. Mr Kol has given evidence and I accept that he is willing to provide a surety of $50,000, but beyond making that offer, he has not otherwise expanded on his understanding of his role as a surety.
In all the circumstances and for the reasons that I have outlined, the application for bail is refused.