Re El-Leissy

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0279

IN THE MATTER of the Bail Act 1977 (Vic)

AND

IN THE MATTER of an application for bail by HAMZA EL-LEISSY

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2023
DATE OF RULING:	4 December 2023
CASE MAY BE CITED AS:	Re El-Leissy
MEDIUM NEUTRAL CITATION:	[2023] VSC 767

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CRIMINAL LAW – Bail – Serious offending – Use of a firearm – Whether exceptional circumstances – Whether an unacceptable risk – Delay – Availability of support services – Bail monitoring – Drug treatment and rehabilitation program – Criminal history – Strength of prosecution case – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4E, 30A, 30B.

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APPEARANCES:	Counsel	Solicitors
For the applicant	R de Kretser	Giorgianni & Liang Lawyers
For the respondent	A Dearman (solicitor)	Office of Public Prosecutions

HIS HONOUR:

A. Introduction

On 16 November 2023, an application for bail was filed on behalf of Hamza El-Leissy (“El-Leissy”). The charges the subject of the application relate to offending alleged to have been committed between 21 December 2022 and 22 February 2023.[1] The 19 charges consist of:
[1]One of the charges for contravening a condition of bail pursuant to s 30A of the Bail Act 1977 (Vic) relates to alleged offending said to have occurred on 21 December 2022, and 4 charges relate to alleged offending said to have occurred on 22 February 2023. The balance of the charges relate to alleged offending said to have occurred on 23 and 24 January 2023.
(1)3 charges of conduct endangering life in contravention of section 22 of the Crimes Act 1958 (Vic).
(2)3 charges of conduct endangering persons in contravention of section 23 of the Crimes Act.
(3)2 charges of discharging a firearm at a premises in contravention of section 131A(1) of the Firearms Act 1996 (Vic).
(4)1 charge of dangerous driving in contravention of section 64(1) of the Road Safety Act 1986 (Vic).
(5)1 charge of driving whilst disqualified in contravention of section 30(1) of the Road Safety Act.
(6)1 charge of possessing a firearm as a prohibited person in contravention of section 5(1) of the Firearms Act.
(7)1 charge of possession of cartridge ammunition without a licence in contravention of section 124(1) of the Firearms Act.
(8)1 charge of handling stolen goods in contravention of section 88(1) of the Crimes Act.
(9)1 charge of failing to comply with an order to provide a mobile phone passcode in contravention of section 465AAA of the Crimes Act.
(10)3 charges of committing an indictable offence whilst on bail in contravention of section 30B of the Bail Act 1977 (Vic).
(11)2 charges of contravening a conduct condition of bail in contravention of section 30A(1) of the Bail Act.
On 24 July 2023, El-Leissy was refused bail in the Magistrates’ Court of Victoria on the basis that he had failed to demonstrate that exceptional circumstances existed that justified the grant of bail. There was also found to be an unacceptable risk that El-Leissy would commit an offence while on bail; endanger the safety or welfare of any person; interfere with a witness or otherwise obstruct the course of justice; and fail to surrender into custody in accordance with the conditions of his bail.
The present application for bail was opposed by the prosecution on the basis that El-Leissy was unable to demonstrate that exceptional circumstances exist that justify the grant of bail, and on the basis that El-Leissy posed an unacceptable risk of committing further offences whilst on bail, failing to answer bail, failing to surrender into custody, endangering the safety of others and interfering with witnesses.

B. Background

B.1 Alleged offending

B.1.1 Incident on 23 January 2023

At approximately 5.58am on Monday, 23 January 2023, 2 offenders attended a residential premises in Thomastown (“the Thomastown Premises”) in a white 2018 model Holden Commodore. The offenders exited the vehicle and walked up the driveway of the Thomastown Premises. The first offender was in possession of a full-length double barrel shotgun and the second offender, who is believed to be El-Leissy, was in possession of a revolver handgun. Closed-circuit television footage from a nearby residence recorded 1 of the offenders calling out the name of 1 of the occupants of the Thomastown Premises.
The first offender used the shotgun to strike a window shutter and discharged a single shot through the front door of the Thomastown Premises at close range. The offender believed to be El-Leissy attempted to discharge his revolver multiple times without success.
The first offender returned to the footpath and discharged his shotgun for a second time in the direction of the house. The 2 offenders then returned to the Holden Commodore, which was being driven by a third offender.
The offender believed to be El-Leissy was depicted on the closed-circuit television footage wearing a black jumper with the “Adidas” logo displayed on the front right hand side of the jumper, black tracksuit pants with the “Champion” logo on the left pant leg, and yellow and white “Nike React Phantom Run Flyknit 2” shoes.

B.1.2 Incident on 24 January 2023

Approximately 19 hours later, at about 1.00am on Tuesday, 24 January 2023, a dark-coloured sedan attended the vicinity of the Thomastown Premises. At least 2 offenders exited the vehicle and walked to the footpath outside the Thomastown Premises. The offenders discharged at least 2 different firearms approximately 8 times in the direction of the Thomastown Premises before lighting a petrol bomb and throwing it onto the front veranda. The offenders fled the scene in the dark-coloured sedan shortly thereafter.
A neighbour contacted emergency services following the incident and police attended the scene. One of the occupants of the Thomastown Premises was observed by police to have injuries consistent with a gunshot wound to his right arm.
Closed-circuit television footage of the incident captured a man who was standing on the veranda of the Thomastown Premises at the time of the attack attempting to take shelter by crouching and seeking refuge behind the front door of the house.
Closed-circuit television footage from a nearby residence also recorded 1 of the offenders calling out for the same occupant of the Thomastown Premises as during the incident the previous morning.[2]
[2]See par 4 above.

B.1.3 Subsequent investigations

Following the incidents of 23 and 24 January 2024, a search warrant was executed on the Thomastown Premises and the police seized 4 shotgun wads, shotgun pellets, a .45 calibre bullet and a petrol bomb. A forensic examination of components of the petrol bomb was conducted and El-Leissy was not excluded as a potential match with respect to any of the components tested, including being not excluded with a likelihood of a ratio of 100 billion with respect to 1 component.
In addition, mobile phone data obtained by police indicated that El-Leissy’s mobile phone was in the vicinity of the Thomastown Premises at the time of both incidents.
The Holden Commodore utilised in the 23 January 2023 attack was identified by police as belonging to an associate of El-Leissy. The vehicle was registered to an address in Greenvale (“the Greenvale Premises”). At 4.41am on 23 January 2023, approximately 1 hour and 20 minutes before the first incident, El-Leissy sent an instant message to another suspect in the investigation which stated the address of the Greenvale Premises.
On 22 February 2023, a search warrant was executed on the Greenvale Premises. Police seized the Holden Commodore utilised in the 23 January 2023 attack and a black “Adidas” jumper which matched the jumper worn by the offender alleged to be El-Leissy in the incident on 23 January 2023.[3]
[3]See par 7 above.
On the same date, a search warrant was executed on El-Leissy’s residence. The police seized a pair of yellow and white “Nike React Phantom Run Flyknit 2” shoes which matched the shoes worn by the offender alleged to be El-Leissy during the attack on 23 January 2023.[4] The police also seized a Samsung mobile phone, a revolver handgun and 10 rounds of ammunition.
[4]Ibid.

B.2 Procedural history

The procedural history of this matter is somewhat complex. Following the execution of the search warrant on El-Leissy’s residence on 22 February 2023, he was arrested and conveyed to the Broadmeadows Police Station for interview. He was charged and remanded in custody in relation to 8 charges filed in the Magistrates’ Court under case number P10400823. On 23 February 2023, El-Leissy made an unsuccessful application for bail in the Magistrates’ Court.
On 12 April 2023, the informant filed 7 additional charges in relation to the alleged offending the subject of this application under a separate case number, being case number P10764927.
On 11 May 2023, El-Leissy filed a further application for bail in the Magistrates’ Court, however, that application was ultimately withdrawn.
On 2 June 2023, the 8 charges filed under case number P10400823 were struck out by order of the Magistrates’ Court. Later, on 21 July 2023, the informant filed 12 additional charges as a continuation to the 7 charges already filed in case number P10764927 in April 2023, thereby comprising the 19 charges the subject of this application. The 12 additional charges included each of the 8 charges previously filed under case number P10400823.
As mentioned previously,[5] on 24 July 2023, El-Leissy was again refused bail in the Magistrates’ Court. The matter is listed for committal in the Magistrates’ Court on 5 February 2024.
[5]See par 2 above.

B.3 Personal circumstances

El-Leissy was born on 15 May 2000. At the time of the alleged offending, he was 22 years old.
El-Leissy grew up in a conservative religious household as 1 of 7 children. When he was 11 years of age, his parents divorced. For a number of years following the divorce, El-Leissy did not have contact with his father. When he was 17 years old he and his father reconnected and they now have a close relationship. El-Leissy maintains a strong relationship with his mother and his siblings.
El-Leissy attended Darul Ulum College in Fawkner for primary school. He then attended Ilim College in Dallas for high school. In year 11, he was expelled from Ilim College due to behavioural issues. He then enrolled at Mount Ridley College in Craigieburn for a short period of time before leaving school to work in various trade jobs, including concreting and carpentry.
During his adolescence, El-Leissy developed issues with substance abuse. At 16 years of age, he started smoking cannabis, and he commenced using cocaine at the age of 18. At 17 years of age, he commenced using methamphetamine and quickly became addicted, reporting daily usage.
Prior to turning 18, El-Leissy attended 2 residential rehabilitation centres run by the Youth Support and Advocacy Service, a community service organisation, for 1 month and 3 months respectively. He relapsed shortly after leaving the rehabilitation centre, and has not otherwise engaged in any rehabilitative programs.
In November 2023, a comprehensive psychological evaluation and risk assessment was conducted of El-Leissy by a registered psychologist. The report which followed this evaluation diagnosed El-Leissy with severe substance use disorder, generalised anxiety disorder and severe major depressive disorder.
El-Leissy’s criminal history dates back to 23 June 2019 when he pleaded guilty to charges of theft, failing to answer bail, possession of a drug of dependence, possession of a schedule 4 poison and dealing with property suspected of being the proceeds of crime. On 21 August 2019, he pleaded guilty to numerous further charges, including possession of a drug of dependence, theft, threatening to inflict serious injury, hindering police, unlawful assault, committing an indictable offence whilst on bail and dealing with property suspected to be the proceeds of crime.
On 17 August 2022, El-Leissy again pleaded guilty to numerous charges, which again included committing an indictable offence whilst on bail. He also pleaded guilty to failing to answer bail, numerous charges of theft, possessing a prohibited weapon without exemption or approval and dangerous driving, amongst other charges. He was sentenced to a community correction order for a period of 12 months.
There are also outstanding charges for which El-Leissy is on bail or summons. I will return to these later, but they involve various driving-related offences of a serious nature.
Up to today, El-Leissy has spent 286 days on remand. In light of his criminal history and the seriousness of the charges the subject of this application, it is accepted that if he is found guilty, El-Leissy is likely to be sentenced to a term of imprisonment that would exceed time spent on remand.

C. Legislation and principles

The charges against El-Leissy include offences under Schedule 2 of the Bail Act, namely committing an indictable offence while on bail.[6] The alleged offending is also said to have been committed during the period of a community correction order made in respect of another indictable offence. It was common ground that El-Leissy must therefore demonstrate that exceptional circumstances exist to justify the grant of bail.[7]
[6]Bail Act, sch 2, item 1(a).
[7]Bail Act, ss 4AA(2)(c)(i) and (iv), 30B.
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must be such as to take the case out of the normal so as to justify the grant of bail.[8] However, it is not an impossible standard to reach.[9] As observed in Woods v Director of Public Prosecutions:[10]
The Bail Act does not define “exceptional circumstances”. Reflecting the ordinary and natural meaning of these words, it has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”.[11] The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.[12]
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances.[13] … [I]t is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”.[14] This “appears to be a question of degree” in each individual case.[15]
[8]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[9]Ibid, citing Armstrong v The Queen [2013] VSC 111, [31] (Lasry J).
[10](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J). While substantial reforms were made to the Bail Act on 1 October 2018, the expression “exceptional circumstances” remains.
[11]Re Scott [2011] VSC 674, [14] (T Forrest J). See also see also R v Tang (1995) 83 A Crim R 593, 596.7 (Beach J); Re Muhaidat [2004] VSC 17; Re Dalton [2013] VSC 690, [49] (Kaye J).
[12]Re Whiteside [1999] VSC 413, [10] (Warren J).
[13]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2; Re Whiteside [1999] VSC 413, [13]; Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 215 [20] (Coldrey J); Armstrong v The Queen [2013] VSC 111, [31]-[32].
[14]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2.
[15]Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 216 [25].
If the court is satisfied there are exceptional circumstances, it must then consider whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.
If the court is satisfied there is an unacceptable risk that an applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with the conditions of bail, then the court must refuse bail notwithstanding it is satisfied that the exceptional circumstances test has been met.[16] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[17]
[16]Bail Act, s 4E(1)(a).
[17]Ibid, s 4E(2).
In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[18] These include the factors in section 3AAA(1) of the Bail Act, namely:
[18]Ibid, ss 4A(3), 4E(3)(a).
…
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)       the strength of the prosecution case;
(c)       the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)       whether, at the time of the alleged offending, the accused –
(i)        was on bail for another offence; or
…
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
...
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including … being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)        the availability of treatment or bail support services;
…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
In assessing the risk, the court must consider whether there are conditions of bail that may be imposed to mitigate the risk.[19] In addition, in interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[20]
[19]Ibid, s 4E(3)(b).
[20]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).

The notion of unacceptable risk does not concern merely any risk of reoffending. Rather, the question is whether such a risk is unacceptable.[21]
[21]Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).

D. Submissions and analysis

El-Leissy’s counsel submitted that exceptional circumstances could be established based on a constellation of factors.
The first of these was the issue of delay. El-Leissy’s time in custody has spanned over 9 months. As mentioned, the committal hearing is listed in the Magistrates’ Court on 5 February 2024. It was submitted that the trial will not be heard until at least early 2025. The affidavit in support of El-Leissy’s application contained an assertion that as a result of the COVID-19 pandemic, there remains a significant backlog of criminal cases in the County Court of Victoria.
Although the estimated duration of time spent on remand if bail is not granted is necessarily somewhat speculative, the evidence does not establish any exceptional delay will exist in this proceeding. As pointed out by the prosecution, in October 2023 the Chief Judge of the County Court announced that the backlog arising out of the pandemic had largely been addressed.[22] Further, it was accepted by El-Leissy’s counsel that, as things presently stand, any delay could not itself give rise to exceptional circumstances.
[22]County Court of Victoria, ‘Chief Judge Peter Kidd provides an update on the status of the County Court’s COVID-19 backlog of criminal jury trials’ (Media release, 9 October 2023).

Significantly, it was also properly conceded by El-Leissy’s counsel that if El-Leissy is found guilty of the more serious charges he is facing, then it could not be submitted that time spent in custody would exceed any non-parole period of imprisonment in light of the seriousness of the alleged offending and his criminal history.
Next, it was submitted that there were real issues to be tried with respect to the most serious charges. Before turning to them, it was conceded by El-Leissy’s counsel that the prosecution case is strong in respect of the driving-related charges. The driving-related charges are also very serious. In addition to a number of charges concerned with driving whilst unauthorised or in a dangerous manner, El-Leissy has an outstanding charge for allegedly driving at 148 kilometres per hour in a 60 kilometre per hour zone in May 2022.
Further, 1 of the charges of conduct endangering life in breach of section 22 of the Crimes Act referred to above[23] is alleged to involve driving at 229 kilometres per hour in a 60 kilometre per hour zone. This charge alone, if proven, carries a maximum term of imprisonment of 10 years.
[23]See par 1 above.
Turning to the events alleged to have occurred on 23 and 24 January 2023, in seeking to raise doubt about the strength of the prosecution case, it was pointed out that the case against El-Leissy is circumstantial and there were no admissions in any record of interview. It was also submitted that there were not any telephone calls or text messages directly implicating El-Leissy in the alleged offending.
However, contrary to this submission, in my view, the evidence presently before the court suggests the prosecution case is strong. Without being exhaustive, there are a number of pieces of evidence that point directly to El-Leissy’s involvement in the alleged offending.[24] Further, it is material that a record of an intercepted telephone conversation between El-Leissy and an associate while El-Leissy has been in custody included comments to the effect that El-Leissy would seek to adduce evidence that he was actually inside the Thomastown Premises at the time of both incidents.
[24]See pars 12-16 above.
Next, it was submitted that El-Leissy was in a position of special vulnerability while in custody. Reference was made to the November 2023 report diagnosing him with serious mental health issues.[25] The opinions in this report were formed based upon various psychological assessments, together with verbal accounts given by El-Leissy of his present state. However, in light of the content of telephone intercepts while in custody, this evidence must be viewed with some circumspection.
[25]See par 27 above.
Next, the availability of support services in the community was relied upon. Particular reference was made to the fact that El-Leissy has been assessed as a suitable candidate for the BailSafe program, a 24 week treatment and rehabilitation program involving electronic monitoring, case management, regular urine screening, and participation in individual and group psychological sessions.
I accept that these and other services available to El-Leissy in the community to address his mental health, drug and behavioural issues may be more extensive and of a better quality than those available if he were to remain on remand. However, the availability of such services is not exceptional.
Further, the proposed program involves little direct in-person contact with El-Leissy. Evidence was given by a director of BailSafe Australia at the hearing of the application. Without in any way questioning the validity of the program or the manner in which BailSafe would astutely monitor and assist El-Leissy, the proposed program only involves online contact of 6 to 7 hours per week in order to carry out the 22 activities scheduled. In short, it is far removed from a full time residential rehabilitation program which has been held to give rise to exceptional circumstances in other cases.[26] The upshot is that, if bail were granted, the proposed program would involve El-Leissy being in the community before a real resolution of his drug problems could be facilitated.
[26]See, for example, Robinson v The Queen (2015) 47 VR 226, 240 [49]-[53] (Maxwell P and Redlich JA); Bail Application by Fadi Haddara [2014] VSC 284, [30]-[32] (Hollingworth J).
Furthermore, the prison telephone intercept evidence shows that El-Leissy has been mocking of the BailSafe program and openly stated he was willing to change his version of events in order to achieve the desired outcome, namely, bail.
Next, the fact that El-Leissy was only 22 years old at the time of the alleged offending and is now only 23 years old was relied upon. It must be accepted that El-Leissy’s age may give rise to vulnerabilities and difficulties that might not be present for someone more senior, and that he may be treated as a youthful offender.
In relation to El-Leissy’s criminal history, it was acknowledged by El-Leissy’s counsel that his prior offending was relevant to the present application but it was submitted to be less serious than the present charges. It was emphasised that El-Leissy has no prior convictions for possessing or using firearms.
Next, reliance was placed upon the ability of El-Leissy to reside in what was said to be stable accommodation at his mother’s residence in Craigieburn. This was submitted to be coupled with family support and ties to this jurisdiction. It was noted that a number of El-Leissy’s siblings reside at his mother’s residence, and that El-Leissy has lived in Victoria his entire life. It was submitted El-Leissy has “strong family support in the community and the female members of the family are hardworking and productive members of society”. In this context, no mention was made of El-Leissy’s brothers. Evidence was given at the hearing by El-Leissy’s mother about other members of their family, including that neither of her daughters live with her at home anymore. An account was also given of the difficulties El-Leissy experienced when he was a young boy at the hand of his father.
A number of matters were relied upon by the prosecution in seeking to establish that the availability of accommodation at El-Leissy’s mother’s residence is of little moment. These included the fact that El-Leissy was residing at the same address at the time of his alleged offending, and was also residing at that address when he breached 2 community correction orders and previous undertakings of bail.
Further, it was submitted that previous history showed that the support of his mother did not enable her to monitor his conduct. In giving evidence on this application, El-Leissy’s mother referred to an illness she suffered 4 years ago, her ongoing treatment and the fact that her energy levels had decreased as a result. She also acknowledged that she had no ability to control El-Leissy.
Furthermore, it was noted by the prosecution that it was at this address that 1 of El-Leissy’s brothers was residing when he was arrested (albeit that brother has not been charged). The same brother has 3 outstanding bench warrants against him and is wanted by police, including with respect to an alleged affray in which El-Leissy is his alleged co-offender. Despite multiple attempts, police have been unable to execute the bench warrants and it was suggested that the family has not assisted the police. Moreover, the latest record with Victoria Police for El-Leissy’s brother indicates that he fled to Queensland after sustaining a non-fatal gunshot wound.
In addition, reliance was placed upon evidence previously given by El-Leissy’s mother in the Magistrates’ Court in support of El-Leissy’s application for bail in July 2023. On that occasion, she is alleged to have given evidence that she had no concerns regarding a loaded handgun having been located at her residence (where a 14 year old child resided). However, in this court, El-Leissy’s mother denied that she gave such evidence and said the presence of a firearm in her residence did concern her. Accordingly, I attach little weight to the alleged previous evidence for the purposes of this application.
There is further evidence concerning El-Leissy’s mother that is relevant. It is alleged that during an intercepted telephone call from prison, El-Leissy told his mother of his intention to travel “if he gets off”, and that his mother responded that she believed it would be best if he was “to just go away for awhile”. During the same conversation it is alleged El-Leissy said to his mother: “There’s people out there still that I don’t like, and they don’t like me, and I never know if they will run into me, and I’ll run into them.”
In light of this evidence, there is considerable uncertainty about whether residing at his mother’s home will provide El-Leissy with adequate supervision and ensure compliance with conditions whilst on bail.
That said, I accept the evidence of El-Leissy’s mother that she would report any breach of the conditions of his bail if she became aware of a breach. It is of considerable significance that surety from his mother has been offered in the sum of $100,000. This would be provided by way of equity in her home and represents a very significant amount to her.
Having itemised the matters relied upon by El-Leissy, and even putting aside the matters referred to concerning the probative value of some of the evidence and taking it at its highest, in considering those matters in the context of the surrounding circumstances, neither individually nor collectively do they give rise to exceptional circumstances. Accordingly, El-Leissy has failed to discharge the onus upon him to establish the necessary prerequisite for any grant of bail.
In any event, even if I had formed a different view, the prosecution has established that El-Leissy is an unacceptable risk in a number of respects. By reference to section 4E(1) of the Bail Act, in my view it has been established, and I am satisfied, that there is an unacceptable risk that if El-Leissy were granted bail he would endanger the safety or welfare of others or would commit an offence while on bail.
Based on his history, such occurrences appear highly likely, if not probable. On El-Leissy’s own case he has a serious drug addiction. The proposed conditions would mean that he would be free to move throughout the community with limited restrictions for 14 hours a day.
Although it was proposed that there would be monitoring of his movements and twice-weekly drug screening, this would mean, as was the subject of evidence today, that El-Leissy could abuse drugs and it would be 3 to 4 days before this would be detected. Without that detection, he would be at risk of engaging in dangerous conduct, as he has done in the past.
Without repeating each of the matters referred to above individually, when they are considered in the context of all the surrounding circumstances, the existence of an unacceptable risk is manifest.

E. Conclusion

For the reasons stated, I am not convinced that exceptional circumstances exist justifying the grant of bail. Further, I am satisfied that El-Leissy does pose an unacceptable risk. Accordingly, bail is refused.

[2023] VSC 767

4 December 2023