Re Dobrosavljevic

[2009] VSC 170

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2009

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail by DALIBOR DOBROSAVLJEVIC

DALIBOR DOBROSAVLJEVIC	Applicant
THE QUEEN	Respondent

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2009
DATE OF JUDGMENT:	28 April 2009
CASE MAY BE CITED AS:	In the Matter of an application for bail by Dalibor Dobrosavljevic
MEDIUM NEUTRAL CITATION:	[2009] VSC 170

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CRIMINAL LAW – Application for bail – Kidnapping, armed robbery, aggravated burglary – Campaign by applicant and co-accused against victim – Alleged offences committed while on bail – Delay – Rehabilitation by applicant – Whether applicant has shown cause – Bail Act 1977 (Vic) s 4(4).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Respondent	Ms F Dalziel	Office of Public Prosecutions

HIS HONOUR:

1. In this matter the applicant, Dalibor Dobrosavljevic, makes an application for bail.  The applicant has appeared in person.  On behalf of the Director Ms F Dalziel of counsel has appeared.

1. The applicant has been charged on three presentments in respect of a number of offences.  The first presentment concerns charges of burglary and theft alleged to have occurred on 4 December 2006.  The second presentment concerns charges of armed robbery, kidnapping and burglary alleged to have been committed by the applicant in company with Waleed Haddara and Jerome Berryman between 25 January and 29 January 2007.  The third presentment alleges that the applicant committed, amongst other matters, aggravated burglary, the offence of recklessly endangering life and being a prohibited person in possession of an unregistered firearm on 9 April 2007.  Each of those offences are alleged to have been committed in relation to a Mr John Kripintiris.

1. It is not necessary for the purposes of this application for me to rehearse at any length the background to the offences, but a brief summary will be sufficient.  For that purpose I am indebted to the careful affidavit sworn by the Crown instructor, Mr Rooney, which itself has been derived from a very thorough summary prepared by Detective Sergeant Rodney Arthur of the Crime Task Operations Unit.

1. The first presentment alleges that on 4 December 2006 the applicant burgled Mr Kripintiris’ family home at Altona.  It is alleged that he broke and entered into those premises, cut the alarm and then ransacked them.  In the course of that burglary it is alleged that he stole items worth $20,000 and also caused damage to the value of $4,000 to the premises.

1. The second presentment, relating to the offences alleged to have been committed between 25 and 29 January 2007, concern the kidnapping and abduction of Mr Kripintiris from his car in a public road by Mr Haddara, Mr Berryman and the applicant acting in concert.  It is alleged that over the next four days Mr Kripintiris was taken against his will to two addresses.  During that period of time a number of demands for money were made on him.  He was forced to telephone his father, Stanley Kripintiris, to arrange for money to be handed over to him.

1. During that period of time the applicant and his co-accused broke into Ms Kripintiris’ girlfriend’s unit in Brunswick and stole a number of items and ransacked those premises.  Near the conclusion of the period concerned they forced Mr Kripintiris to sign a vehicle transfer of his BMW coupé motor vehicle.

1. The third presentment, concerning the incidents of 9 April 2007, alleges, firstly, that at about 7 a.m. the applicant broke into and burgled the Kripintiris family solarium business and that he stole some items from it.  It is further alleged that later on that day, at about eleven o’clock, he re-entered the premises while Mr Kripintiris and his family were present.  It is alleged that he then produced an automatic handgun and pointed it at Mr Kripintiris’ face.  A struggle ensued between Mr Kripintiris, Mr Stanley Kripintiris, and the applicant, in the course of which the applicant discharged four shots from the gun.  He was over-powered, the police were summoned and he was arrested and he has been in custody since.

1. I am satisfied that the offences which are alleged in the presentments were committed by the applicant while he was on bail for indictable offences. 

1. Firstly, on 28 May 2006 he was arrested, charged and bailed in respect to offences which included possession of amphetamines and on 22 November 2006 he was charged with theft from a motor vehicle, theft and handling stolen goods and was granted bail.

1. As I understand it, he was on bail for each of those two sets of offences when the offences, which are the subject of this application, were committed.

1. In addition, the second and third presentments against the applicant contain allegations of aggravated burglary and also burglary committed whilst either the applicant or his co-accused had a firearm and, accordingly, for those reasons the applicant is required to show cause to me pursuant to s.4(4) of the Bail Act why his detention in custody is not justified.

1. His application is opposed by the Crown on the basis that the applicant presents an unacceptable risk, firstly, that he would reoffend on bail and, secondly, that he would endanger the safety of and interfere with witnesses in his proceeding.

1. The applicant has been in custody, as I said, since 9 April 2007.  In May 2008, on another matter, he was sentenced to imprisonment of five months and 24 days.  With the pre-sentence detention consisting of the period of detention before that date, he was effectively taken to have served that period of time.  The net effect of all that is whilst the applicant has been in gaol for the last two years, it would seem, on my calculation, that 18 months of that are attributable to his detention in relation to these matters.

1. I have been informed by the Crown and also by the applicant that his trial and that of the co-accused has been fixed for hearing in the County Court on 27 July on an estimate of 20 days and both parties inform me there is no reason why the trial ought not to proceed on that day.

1. The applicant appeared in person and made submissions to me.  I should compliment him on the fact that he was able to put together and present to me in an ordered manner the points which he wished to make in support of his application.

1. Essentially the points which he made I think can be fairly summarised as follows: Firstly, that he has no previous convictions for violence; secondly, he is prepared to undertake not to interfere with witnesses; thirdly, if released he would be able to avail himself of family support.  His father lives in a home at Seabrook and the applicant would be, he considers, welcome to live with his father there provided that he attempted to find work.  If he was unable to stay with his father he would be able to stay with his stepmother and his sister at Endeavour Hills.  Fourthly, he has submitted to me that he has addressed his drug problem in the last two years.  During that period of time he has been subjected to random urine tests and they have all been negative; that he has attended a number of drug and alcohol courses and anger management courses and that whilst he acknowledges his long-standing drug problem, he considers that he is well on the path to rehabilitation.  Fifthly, of course, the applicant relies on the delay.  He has told me that he has not made an application for bail prior to today because he has not considered himself ready to be released.  He now feels that his rehabilitation has reached the stage where he can be confident that he can enter society without offending in it.

1. In response, Ms Dalziel, who appeared for the Director, made a number of helpful submissions to me.  Firstly, she pointed out the nature of the offences with which the applicant has been charged are particularly serious.  They involve an ongoing and particularly troubling campaign against a citizen, targeting him on a number of occasions.  Secondly, notwithstanding that the applicant does not have a history of violence, nevertheless, he does have an extensive previous criminal history.  Thirdly, that history involves previous breaches of community based orders and suspended sentences, and one breach of bail.  Fourthly, Ms Dalziel points out that while the applicant has submitted to me that he will receive support from his father, he has not called his father to give evidence today, and thus nothing has been put to me that should give me an appropriate level of assurance that he will receive sufficient support to enable him to stay away from the other witnesses in the case and to not reoffend.  Fifthly, in terms of the delay, Ms Dalziel has put to me that while the delay is lengthy, nevertheless, the trial now will take place in three months’ time, so that the effect of the delay is substantially now diminished.

1. Ms Dalziel has told me that one co-accused, Mr Berryman, has been granted bail, but she submitted that the position of the applicant is not on a par with Mr Berryman.  Mr Berryman has far fewer previous convictions and he only faces one set of charges which is distinct from the position of the applicant who faces three sets of charges.

1. The onus, of course, lies on the applicant to satisfy me that his continued detention in custody is not justified.

1. I think it is academic, for the purposes of this application, whether I adopt the approach of Maxwell P in Asmar[1] or that of Gillard J in Harika[2].  Ultimately, the issue which is relevant is whether the applicant has put forward matters which would justify him being placed on bail and those matters particularly concern issues relating to the safety of witnesses and me being persuaded to a level of assurance that he would not reoffend.

   [1][2005] VSC 487.

   [2][2001] VSC 237.

1. In that respect, in my view, the matters pointed to by Ms Dalziel are of substantial weight.  The offences for which the applicant is awaiting trial are particularly serious.  The amount of violence and threat to a member of the community are grave matters.  Notwithstanding the fact that the applicant does not have previous convictions, that level of violence and that type of conduct is troubling.  I appreciate, of course, that the applicant has not yet stood his trial for those matters, but nonetheless on the matters which are contained in the materials before me, it has to be acknowledged that the type of offences for which he stands trial are quite serious.

1. The second matter which is of particular concern is that the offences are alleged to have been committed while the applicant was on bail in respect of two different sets of matters.  There is, I think, force in the proposition that at that time at least the applicant showed no respect at all for the terms and conditions of his bail, and that that lack of respect for dispositions made by the court by which he has been set free in the community is reflected in the fact that on previous occasions he has breached community based orders and suspended sentences.  That consideration, I must say, does diminish my confidence in the assurances given to me by the applicant that he will not reoffend and not interfere with witnesses in the next three months if he was set at liberty.

1. The other matter which is of some concern, of course, is the applicant’s history of drug taking.  Notwithstanding what was put to me by Ms Dalziel, I accept and indeed commend the applicant for the steps which he has made in endeavouring to remain free from drugs, and I very much encourage him to continue upon that level of improvement.  However, as, in fact, the applicant, I think quite sensibly, acknowledged, after a long history of drug taking, he is not yet entirely out of the woods.  The risk of regressing is always there, and I would be concerned that, if he were set free at this time, the temptations and stresses to which he would be subjected in the next three months may be so overwhelming that he might regress, which not only would be against the interests of the community, but also very much against his own personal interests.

1. The points made by the applicant I also acknowledge have some force.  I do accept that he has no previous convictions for violence, but nonetheless he does have a lengthy history which does concern me.

1. In relation to the question of support, it is again pleasing to note that he has mended his fences with his father.  However, unfortunately, he has chosen not to involve his father in this application.  I do not draw an adverse inference against him for not doing so.  I accept that he was concerned not to put his father through such an application, but by the same token I have not been able to hear from his father and thus be given that level of comfort and assurance that his father would be able to exercise sufficient supervision over his 28 year old son to ensure that he did not get into trouble in the next three months.

1. The applicant has undertaken to me that he would not interfere with witnesses, but the difficulty would be even if he is sincere, and I do not say otherwise, in giving me that assurance, if I were to release him there is a temptation, given the pressures of his forthcoming trial, that may lead him astray, so that he might then involve himself in conduct which would not only intimidate the witnesses but indeed land himself in further trouble.

1. Bearing all those matters in mind, it seems to me that the applicant has not made out appropriate grounds why his detention in custody is not justified.  In saying that I also accept that his position is different from that of Mr Berryman for the reasons which have been advanced by Ms Dalziel.  Mr Berryman has far fewer prior convictions, he was not involved in the first and third matters which have been brought against the applicant, and he was not on bail, as I understand it, when he is alleged to have committed the offences of January 2007.

1. The delay in bringing of this matter for trial is, as I have already said, regrettable.  It is, I think, unfortunate that our system is so overloaded that people in the position of Mr Dobrosavljevic have to wait two years before their trial, and that is indeed regrettable.  Ordinarily, that delay would be a matter of some moment.  However, I do consider that it is alleviated by the fact that not only has a trial been fixed for three months hence, but it would seem that the parties are confident that the trial will commence on that date.

1. Bearing all those matters in mind and taking into account the well-compiled submissions made by the applicant, I am not satisfied that the applicant has shown cause why his detention in custody is not justified.  Indeed, for the matters I have stated, I am in effect satisfied by the Crown that if I were to set him at his liberty at this stage by granting him bail he would be an unacceptable risk both in terms of interfering with witnesses and reoffending.

1. Thus, while I again reiterate that I commend the applicant for the progress he has made and I encourage him to continue to make that progress, I do not feel myself able, under the terms of the Bail Act, to grant him bail and therefore his application for bail will be refused.

1. Do you understand all that, Mr Dobrosavljevic?

APPLICANT: Yeah, yeah.

HIS HONOUR: Again I encourage you to keep up the good work on your rehabilitation.  It will certainly assist you if you are convicted but, more particularly, it will assist you when you finally do emerge into society.

Thank you for your assistance, Ms Dalziel.

MS DALZIEL: May it please Your Honour.