Re Farmer
[2021] VSC 417
•5 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0149
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Joel FARMER | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2021 |
DATE OF JUDGMENT: | 5 July 2021 |
CASE MAY BE CITED AS: | Re Farmer |
MEDIUM NEUTRAL CITATION: | [2021] VSC 417 |
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CRIMINAL LAW – Bail – Applicant charged with extortion and other charges – Co-offenders charged with further charges including a firearm offence – Applicant could not comply with surety amount in previous Magistrates’ Court bail – Delay – Compelling reason established – No unacceptable risk – Stringent bail conditions – Bail granted – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr S Moglia | Greg Thomas Barrister & Solicitor |
| For the respondent | Ms C Duckett | Office of Public Prosecutions |
HER HONOUR:
Introduction
The applicant has been remanded in custody since 17 April 2021 on the following charges:
(a) False imprisonment contrary to the common law between 21 March 2021 and 15 April 2021;
(b) Extortion with threat to injure contrary to s 27(b) of the Crimes Act 1958 (Vic) (‘Crimes Act’) between 21 March 2021 and 15 April 2021;
(c) Threat to inflict serious injury contrary to s 21 of the Crimes Act between 21 March 2021 and 15 April 2021; and
(d) Unlawful assault pursuant to s 23 of the Summary Offences Act (Vic) between 21 March 2021 and 15 April 2021.
The applicant shared a Southbank apartment with the complainant and one other co-accused[1] for about 5 months prior to the alleged offending. He also worked for the complainant’s business: ‘Avocado’.
[1]Mr Sama Mirzaagha
There are three co-accused in this matter being: Mr Sama Mirzaagha (‘Mirzaagha’), Mr Nicholas Tofaris (‘Tofaris’) and Mr Andrew Garas (‘Garas’).
Each of the three co-accused are charged with similar or, in some cases, more serious offences.
Mr Mirzaagha was arrested on 16 April 2021 and bailed by Magistrate Burt on 12 May 2021 having spent 26 days in custody. His bail conditions included a surety of $200,000.[2]
[2]Affidavit of Michael Haralambous affirmed 11 June 2021 (Exhibit MAH-6) (‘Affidavit in Support’).
Mr Tofaris was arrested on 22 April 2021 and bailed by Lasry J also on 12 May 2021 having spent 20 days in custody. His bail conditions included a surety of $150,000.[3]
[3]Affidavit in Support, MAH-5.
Mr Garas was arrested on 30 April 2021 and remains in custody on remand having made no application for bail.
Procedural History
Magistrate Maxted granted the applicant bail on 24 May 2021 with a surety of $200,000 and the following special conditions:
•That the accused report to Moorabbin Police Station daily between 6am and 9pm;
•Not attend points of international departure;
•Not to leave Australia;
•Not to leave the State of Victoria;
•Not to contact witnesses for the prosecution other than the informant;
•Not to associate with any co-accused;
•To comply with Intervention Order made in Case Number M10775520; and
•Not to attend any gaming venue.
Magistrate Maxted found a compelling reason to grant bail was established by a combination of the following factors:[4]
[4]Notice of Order of Magistrates’ Court dated 24 May 2021, annexed at MAH-2 of the Affidavit in Support.
(a) The applicant’s age;
(b) The applicant’s lack of relevant prior convictions;
(c) The occurrence of a likely delay;
(d) The occurrence of a manifest delay; and
(e) The applicant’s bail history.
An application to remove the surety condition was heard by Magistrate Maxted on 8 June 2021. The applicant’s parents had provided an undated letter signed by the applicant’s father addressed to the Magistrates’ Court, stating that they were unable to provide a surety for the applicant because they were in the process of selling their property in Queensland and relocating back to Western Australia. It would complicate the process to a significant extent if they were to use the property they were selling for a surety.
Whilst the abovementioned letter was produced to the Magistrates’ Court the applicant’s parents were not made available to give evidence. The application to vary bail by removing the surety was opposed by the respondent. Ultimately Magistrate Maxted refused to remove the surety condition partly because it was held that the letter provided to the court was not in a proper format (such as an affidavit or a statutory declaration). The applicant remains in custody, as he has not been able to obtain a surety in the sum fixed.
On 11 June 2021 the applicant applied for bail to this Court and sought the removal of the requirement for a surety or a significant reduction of the surety amount. Although the applicant and the respondent referred to the proceeding before me as a variation of bail, I have treated it as a fresh application for bail but taken into account that conditional bail had been granted below subject to the inclusion of a surety. The previous grant of bail meant that the respondent did not dispute that a compelling reason was established, but emphasised the issue of unacceptable risk, especially if a surety comparable to that imposed on the co-accused was not imposed.
On 3 July 2021, solicitors for the applicant filed an affidavit signed by the applicant’s father which confirmed the family’s financial situation had not changed since his letter of 29 May 2021 and they were still unable to use any amount of their property as surety due to its upcoming sale. He considered he and his wife would not be able to cope with giving evidence in court, never having been in this situation before. That said, the applicant’s father stated that he and his wife love their son dearly, and are supportive of him. The applicant’s father also said he did not want their decision regarding a surety to be interpreted as a lack of faith in the applicant.
The matter is next listed in the Melbourne Magistrates’ Court on 19 July 2021 for committal mention.
Summary of the alleged offending
The circumstances surrounding the applicant’s alleged offending were set out by Lasry J in his Honour’s reasons for granting bail application for Tofaris.[5] I adopt the following factual summary:
[5]Re Tofaris [2021] VSC 249, [4]-[13].
The complainant in this matter is a former business associate of [Tofaris]. At the time of the alleged offending, the complainant was residing with two of the co-accused, Sama Mirzaagha and Joel Farmer, in an apartment in Southbank. Andrew Garas, a third co-accused, is an associate of Mr Mirzaagha.
The following summary of the allegations is based on the summary of offending provided in the informant’s report.
Between 21 March and 15 April 2021, it is alleged that [Tofaris] and co-accused held the complainant against his will at the Southbank apartment at which he lived. During that period of more than three weeks, they allegedly assaulted and threatened to harm and kill the complainant. The complainant was also allegedly forced to contact his parents, who reside in Queensland, to arrange for the transfer of money to [Tofaris]’s bank account and money was transferred. These events are said to have occurred in the settling of purported debt owed by the complainant due either to failed business ventures or drug related matters.
The complainant’s allegations include the following:
(a) On 22 March 2021, Mr Garas took out a handgun that was tucked into his waistband, before stating, ‘If you don't get the money, I’ll put one in ya.’
(b) On 27 March 2021, [Tofaris] hit the complainant’s head on a table twice, causing his nose to bleed; said to the complainant, ‘Let’s see how fast you mum gets you 220k when I start hacking your legs off’; and said to the complainant that he would throw him out of a window, but suicide would be ‘too easy’.
(c) On 4 April 2021, Mr Farmer set a book on fire in the complainant’s bedroom before putting it out.
(d) On 12 April 2021, Mr Garas cut the complainant’s hair with scissors; threatened to burn the complainant’s lips with a yellow coloured blow torch that he held to the complainant’s face; and hit the complainant’s face causing a split lip. The complainant used a sock to clean the blood from his lip.
(e) The complainant was forced to use notes to communicate or request food or a drink, which he slid under his bedroom door.
Further, during the same period, it is alleged that the complainant’s parents received multiple communications from [Tofaris]. This included text messages from the applicant to the complainant’s father advising that the complainant owed $1.1 million, and that the complainant would not be harmed if the money was transferred.
[Tofaris] called the complainant’s father on 29 March 2021. Further, on 30 March 2021, the complainant’s parents received another text message from [Tofaris] stating:
‘I want this over and done with, so I'm happy to wait till tonight if you change your mind and want to help your son, otherwise I'll break the news to [redacted] and his debtors. Once they realize they won't get paid I don't think you'll see [redacted] again.’
The complainant’s father transferred a total of $100,000 into a bank account in [Tofaris]’s name across four transactions between 24 March and 1 April 2021. [Tofaris] has declined to assist police to recover this money. Mr Gullaci [Counsel for Tofaris] has suggested that is only because his accounts have been frozen and he is unable to operate them.
On 15 April 2021 at around 7:00pm, the complainant was left alone in the apartment and fled. He reported the events to police, who attended and secured the scene.
Mr Farmer and Mr Mirzaagha were arrested early on 16 April 2021 within the Southbank apartment building. On that date, a search warrant was executed at the Southbank apartment, where police located various items alleged to corroborate the complainant’s account, including a yellow blow torch, a handwritten note with [Tofaris]’s bank account details and various other handwritten notes, scissors, socks with blood stains and various documents in the name of [Tofaris]’s building company.
It was accepted by the respondent that the applicant played a lesser role in the offending than his co-accused. This concession would seem appropriate given that the applicant is not alleged to have caused physical injury to the complainant or to have possessed a firearm, and given that the money sent by the complainant’s parents was not paid to the applicant. Furthermore, in his police statement, the complainant described the applicant as ‘the lowest in the pecking order’ and said other co-accused made the applicant do things ‘a bit like a slave.’[6]
[6]Statement of the complainant dated 16 April 2021, 5.
On the other hand there, is also evidence that, in addition to the alleged book burning incident described above, the applicant facilitated phone conversations between the complainant and the complaint’s parents, and exchanged a number of text messages with the complainant’s parents throughout the offence period. He also exchanged multiple text messages with Tofaris regarding the status of payments from the complainant’s parents, including a picture which depicted a transaction receipt for $30,000 paid into Tofaris’ bank account.
It appears that the use of methamphetamines may have played a role in the applicant’s conduct and decision making during the offence period. The complainant allegedly observed the applicant and his co-accused ‘smoking a lot of meth’ and becoming unreliable. He stated that towards the end of the offending period they ‘were so out of it’ they did not know the complainant’s parents had transferred significant amounts of cash to Tofaris’ account.[7]
[7]Statement of the complainant dated 16 April 2021, 8.
Applicable Law
Although put forward as an application to vary bail, I have approached this matter as a fresh application for bail.
In approaching the matter as a fresh application it is appropriate to have regard to the fact that bail was granted on the current charges in the Magistrates’ Court, but the applicant was not released on bail due to being unable to raise a surety in the sum fixed.
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’). This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and the right to liberty.
Step 1: Show compelling reason test
The applicable threshold for bail in this case is the ‘compelling reason’ test due to the alleged use of a firearm by co-accused Mr Garas during the commission of the offences.[8] In this case, noting the Magistrates’ Court had found a compelling reason justifying the grant of bail, the respondent accepted that the compelling reason test was satisfied.[9] In determining whether a compelling reason is established, pursuant to s 3AAA, I must take into account the relevant surrounding circumstances. A compelling reason can be established by a combination of circumstances.[10]
[8]Schedule 2, Item 23, Any indictable offence in the course of committing which the accused, or any person involved in the commission of the offence, is alleged to have used or threatened to use a firearm, offensive weapon, or explosive as defined by section 77 of the Crimes Act.
[9]Submissions on Behalf of the Respondent, dated 3 July 2021 (‘Respondent’s Written Submissions), [5], Transcript of Proceedings, Application of Joel Farmer (Supreme Court of Victoria, S ECR 2021 0149, Justice Jane Dixon, 5 July 2021) (‘Transcript’), 8.
[10]Re Koshani [2019] VSC 678.
Step 2: Unacceptable risk
Even where the Court is satisfied that a compelling reason exists, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail, the applicant would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable. Under s 4E of the Act the Court is again directed to take into account the ‘surrounding circumstances’.
At s 4E(3)(a) of the Act, the Court is also directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk. Such conditions include the availability of a surety. In this case, the lack of a significant surety was the key concern to the respondent.
The Applicant’s personal circumstances and submissions in support of bail
The applicant raised the following circumstances in support of the application:[11]
[11]As articulated in the Affidavit in Support, and the Outline of Submissions on Behalf of the Applicant dated 2 July 2021, (‘Applicant’s Written Submissions’).
a) The applicant is 30 years old and has a limited criminal history having one finding of guilt recorded against him in Western Australia in 2011 for unlicensed driving and a criminal infringement notice issued by New South Wales police in November 2020 for ‘continue intoxicated behavior after move on direction’. There are no other outstanding matters.
b) The applicant grew up in Western Australia and was working as a fly-in, fly-out boiler maker in mining when he sustained an injury to his right arm and was unable to continue work in that industry. However, he has now recovered and is ready and willing to return to work.
c) He moved from Queensland to NSW in early 2020 and then to Melbourne in about November 2020 to live and work. He came to Melbourne to work for the complainant whom he regarded as his boss. His parents are supportive of him but are in the process of moving from Queensland back to WA.
d) His ex-partner lived in Queensland for some time in 2020, but Mr Farmer has not known her whereabouts since September 2020. There is no ongoing relationship between them and she has sole custody of their young daughter.
e) At the time of the alleged offending he shared an apartment with the complainant and one of the co-accused.
f) He has never been in custody before.
g) He has no history of any bail offence.
h) On remand, he was in isolation for 25 days, including 14 days in quarantine and a further 11 days in protective custody.
i) Corrections regarded him as vulnerable, resulting in a move to another prison due to other prisoners having targeted him.
j) If granted bail, he would reside at the house of Janet McLean in Bentleigh. She is the mother of a close friend of the applicant and is aware of the allegations and is supportive of him. Ms McLean gave sworn evidence in support of the applicant at the hearing. She confirmed that she could provide a room to the applicant on an indefinite basis while he looked for work. She said she had met the applicant through her son, that she trusted him and would encourage him to have a positive lifestyle. Regarding any proposed curfew she said that if police rang up to ask whether the applicant had been abiding by his curfew, that she would answer them honestly and raise any concerns she might have. When asked by counsel for the respondent, Ms Duckett, whether she had any experience with people who take drugs or who have drug addictions Ms McLean said that she had worked for a rehabilitation specialist for almost 20 years and it was not uncommon to deal with persons who were opioid dependent and/or other ‘extreme’ drug takers.[12]
[12]Transcript, 21.
The applicant denies the allegations and noted there are significant triable issues. For example, the prosecution case as to the exact role the applicant took in the alleged offending will be challenged. Further, the complainant is likely to encounter significant credibility issues which have yet to be tested at committal. Even if the applicant is shown to have had a role in the offending, his role was submitted to be among the lowest of the co-accused in this matter.
The applicant submitted that there was likely to be a significant delay in light of the ongoing COVID-19 pandemic and its impact on the court system, noting that the comments made by Lasry J in Tofaris would apply equally to this matter. Finally, while the applicant conceded that the charges were serious, having regard to the applicant’s lack of relevant criminal history and his arguably lesser role in the alleged offending it was likely that he would serve more time in custody on remand than he would if he were ultimately convicted.
Regarding the respondent’s position that a sizable surety was still required, Mr Moglia submitted that the only feasible source of a surety was the applicant’s parents. His father had explained in his signed affidavit why they were unwilling to place an encumbrance on their property. Mr Moglia said the family’s capacity to assist was also limited because the applicant’s older brother had recently been diagnosed with a ‘challenging’ medical condition.
When pressed during the oral hearing as to whether the family could provide some kind of cash surety, Mr Moglia was able to indicate the availability of a modest cash sum.
Respondent’s submissions in opposition to bail
The respondent opposes bail being granted in the absence of a surety in the sum previously fixed. Counsel for the respondent conceded that a compelling reason had been established but opposed the application on the grounds that, without an appropriate surety in place, the applicant presented an unacceptable risk of:
(a) endangering the safety or welfare of another person;[13]
[13]Section 4E(1)(a)(i) of the Act.
(b) committing an offence while on bail;[14]
(c) interfering with a witness or otherwise obstructing the course of justice in any matter;[15] and/or
(d) failing to surrender into custody in accordance with conditions of bail.[16]
[14]Section 4E(1)(a)(ii) of the Act.
[15]Section 4E(1)(a)(iii) of the Act.
[16]Pursuant to s 4E(1)(a)(iv) of the Act.
In the respondent’s written submissions, Ms Duckett referred to phone conversations while in custody between the applicant and Daniel McLean (‘McLean’) (the son of Janet McLean, the resident at the proposed bail address), in which he allegedly said he ‘just needed an address’ but did not ‘have to stay there.’[17] In another conversation, the applicant allegedly told McLean that he would ‘go on the offensive’ and that he had ‘many who will talk about this person (the complainant), scum that he is.’[18] These matters were not elaborated on in the oral hearing.
[17]Respondent’s Written Submissions, [7(a)].
[18]Respondent’s Written Submissions, [7(b)].
More generally, the respondent noted that the applicant lacked significant ties to the jurisdiction of Victoria. He had not lived in Melbourne prior to moving here in the lead-up to the current offending. Further, he has no strong friendships or family ties to the state. Accordingly, it was submitted, that if the condition of a surety were removed, there would be nothing to prevent the applicant from leaving the jurisdiction.
The respondent raised concerns about the applicant’s knowledge of the business and personal details of both the complainant and the complainant’s parents and that there was a real and unacceptable risk that the applicant may seek to take advantage of this information if he were released.
Finally, it was submitted that given the serious and sustained nature of the alleged offending, the terms and conditions of any grant of bail should be commensurate with those of the alleged co-accused. In circumstances in which two of the co-accused, both of whom had significant ties to the jurisdiction, were only granted bail with onerous sureties ($150,000 and $200,000) attached, the principle of parity weighed against the granting of bail to the applicant without a similar surety.
Analysis
I am persuaded that the applicant has demonstrated a compelling reason that justifies a grant of bail pursuant to s 4C of the Act. The delay referred to by Lasry J in Tofaris applies equally to this application and alone satisfies the compelling reason test. Also, in this case, other factors that assist in satisfying the test are: the availability of Ms McLean to support the applicant, the applicant’s lack of serious prior criminal history, and the lesser role the applicant played in the offending compared to the co-accused.
Regarding unacceptable risk, while the principle of parity between co-accused is relevant, it is just one consideration. The financial situation of the applicant’s family was explained in his father’s affidavit and elaborated on at the oral hearing. Satisfactory reasons were provided as to why the applicant’s family could not provide a surety in an amount similar to what was put up on behalf of the co-accused. While it must be acknowledged that two of the co-accused were able to provide substantial sureties, this applicant has been unable to put forward a person who can provide a very substantial surety. On the other hand, the applicant did not appear to have played a leading role in the offending, and has a minimal criminal history. He has the support of Ms McLean, who impressed as a sensible and mature woman and who is able to be a stabilising influence. In light of these facts, I am persuaded that the amount of the surety for this applicant can be reduced if it is balanced by the imposition of strict bail conditions, including bail monitoring.
It was noted that drugs appear to have played a role in the applicant’s decision making at the time of the offending and therefore strict curfew and drug screening conditions would reduce the risk that the applicant would commit offences on bail or fail to answer bail.
I am not persuaded that the applicant is an unacceptable risk of failing to answer bail. The applicant’s work history, the positive influence of Ms McLean, his lack of relevant priors, supportive family and the opportunity to live at an address where he can avoid contact with negative peers all weigh in favour of granting bail.
Ultimately, I am satisfied that a surety of $15,000 along with strict conditions can mitigate the risk to an acceptable level. The conditions will be more extensive and rigorous than those fixed by Magistrate Maxted.
Accordingly, bail is granted on the conditions that have been drafted and circulated to the parties for their consideration.
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