Re Farmer - [2021] VSC 417

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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Farmer

Details

AGLC: Re Farmer [2021] VSC 417
Case: [2021] VSC 417
Decision Date: 5 July 2021

CaseChat Overview and Summary

In the County Court of Victoria, the applicant, Farmer, was charged with extortion and related offences. Farmer's co-offenders were charged with additional offences, including a firearm offence. Farmer had previously been denied bail in the Magistrates’ Court due to inability to meet the surety amount. The current application for bail in the County Court was delayed due to the applicant’s inability to attend the first hearing. The applicant argued that there was a compelling reason for the delay and that no unacceptable risk was posed to the community. The court was required to determine whether a compelling reason existed for the delay in applying for bail, whether the delay caused any prejudice, and whether the applicant posed an unacceptable risk to the community.

The court found that the applicant had established a compelling reason for the delay in applying for bail. The delay did not result in prejudice to the community or any co-accused. The court considered the seriousness of the charges, the need for the community to be protected, and the risk of reoffending. The court was satisfied that the applicant did not pose an unacceptable risk to the community. The court ordered stringent bail conditions, including electronic monitoring, curfew, and strict reporting requirements. The applicant’s bail was granted, and the case was adjourned for further hearings.

The court ordered that the applicant be released on bail subject to stringent conditions, including electronic monitoring, a curfew, and strict reporting requirements. The applicant was also required to surrender all travel documents and to remain within specified boundaries. The applicant was further required to report to a bail justice on a regular basis. The court emphasised the importance of compliance with the bail conditions and warned of the consequences of any breach. The applicant was advised to attend the next court hearing and to comply with all directions given by the court.

Orders