Re Ghanim
[2019] VSC 358
•10 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0070
| IN THE MATTER of the Bail Act 1977 |
| -and- |
| IN THE MATTER of an Application for Bail by SALWYN GHANIM |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 April 2019 |
DATE OF RULING: | 10 April 2019 |
CASE MAY BE CITED AS: | Re Ghanim |
MEDIUM NEUTRAL CITATION: | [2019] VSC 358 |
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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 1 offences –Whether exceptional circumstances justify bail – Whether applicant, if bailed, presents an unacceptable risk – Application opposed – Applicant on youth parole at time of alleged offending - Release on supervised bail program not supported by Youth Justice – Significant criminal history – Prior convictions for bail offences – Exceptional circumstances not established – Applicant presents an unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4D, and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Terry | Emma Turnbull Lawyers |
| For the Respondent | Mr P D’Arcy | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Salwyn Ghanim, who was arrested and charged in relation to an incident involving a home invasion and subsequent police pursuit in Hoppers Crossing on 13 June 2018.
On 6 September 2018, the applicant was charged with further offences in relation to the same incident.
On 5 February 2019, the charges against the applicant proceeded by way of a contested committal, and the applicant was committed to stand trial in the County Court of Victoria. The County Court has fixed a trial date for that matter on 28 January 2020. The matters for which the accused is committed to stand trial include:
· aggravated home invasion;
· attempted theft;
· aggravated offence of intentionally exposing an emergency worker to risk by driving (two counts);
· reckless conduct endangering serious injury;
· criminal damage (three counts);
· theft of a motor vehicle;
· theft from a motor vehicle;
· handling stolen goods (three counts);
· burglary;
· theft;
· home invasion; and
· aggravated offence of recklessly exposing an emergency worker to risk by driving (two counts).
As I understand it, these charges all relate to a home invasion and the consequent activities that occurred once the police attended the scene.
The applicant is also charged with the summary offences of going equipped to steal, failing to stop a vehicle on police direction, possession of a controlled weapon without excuse, and driving whilst disqualified. On 5 February 2019, those offences were transferred to the County Court, pursuant to s 145 of the Criminal Procedure Act 2009 (Vic).
The applicant has been in custody since his arrest on 13 June 2018. Applications for bail failed on 9 August 2018 and following the hearing of the committal on 5 February 2019.
The alleged offending
The offences are alleged to have occurred on 13 June 2018, when at about 12:40 pm, the applicant, together with two accomplices, Hussein Alqassim and Isaac Ibrahim, drove to a residence on Barber Drive, Hoppers Crossing. The person at home in the residence was a young lady, who was then aged 15. She heard knocking at the front door and looked out of her upstairs bedroom window to see Mr Ibrahim standing outside. It is alleged that he walked over to a silver Hyundai motor vehicle, which was parked adjacent to the residence, and got into the back seat before it was driven into the driveway of the residence.
Shortly after, the girl heard banging at the front door. Fearing that someone would enter her room, she pushed herself against the door of her bedroom and contacted her mother, who advised her to immediately contact police.
When police arrived at the residence and approached the front door, the applicant is alleged to have run out of the property and into the vehicle before speeding out of the driveway. Mr Alqassim, who was holding a blue crowbar, and Mr Ibrahim also ran out of the residence, yelling at the applicant to stop. The applicant stopped to allow his accomplices to get into the vehicle, but a police officer caught up with them and opened the rear passenger door, directing the applicant to stop the vehicle. Instead, the applicant accelerated away, leaving his co-accused and the officer behind.
Further up the road, the applicant was intercepted by an unmarked police vehicle with emergency lights activated. The vehicles stopped nose-to-nose.
Mr Ibrahim and Mr Alqassim used the opportunity to attempt to get into the applicant’s vehicle, and a police officer opened the driver-side door. Before they could enter the vehicle, the applicant drove off at speed and, it is alleged, deliberately struck the unmarked police vehicle in order to get past it.
Mr Alqassim was then arrested. He was found to be wearing gloves and in possession of a number of pieces of gold jewellery. Mr Ibrahim attempted to evade arrest, causing injuries to a police officer, but was arrested a short distance away, also wearing black gloves.
The applicant is then alleged to have continued driving and turned on to Heaths Road; crossing onto the wrong side of the road into oncoming traffic and heading straight towards another unmarked police car with its emergency lights and sirens activated. Police attempted to turn to avoid a collision with the applicant’s vehicle but were unsuccessful. As a result of the collision, the arresting officer suffered a dislocated thumb as well as tendon and nerve damage.
The applicant then exited his vehicle and was chased by police. Upon arrest, he apparently waved his arms about to prevent being handcuffed. Once restrained, the applicant was found to be wearing black gloves and in possession of the key for the silver Hyundai. He was later taken to a police station where he made a no comment interview in relation to the alleged offending.
A subsequent search of the Hyundai located a machete, various jewellery boxes and a Hugo Boss brand watch. Police at the Barber Drive property observed that the front door had been forced open and there was evidence of a blue paint transfer against the door frame.
Enquiries later revealed that the Hugo Boss watch found in the vehicle and jewellery in Mr Alqassim’s possession had been stolen from a separate Hoppers Crossing property earlier that same day. Further, the jewellery and machete located in the vehicle are alleged to have been stolen from a property in Thomastown the previous day.
The co-accused
The two co-accused in this matter pleaded guilty in the Melbourne County Court to a number of charges including handling stolen goods (three counts), burglary, theft and home invasion.
Mr Alqassim pleaded guilty to an additional charge of resisting an emergency worker on duty. On 5 April 2019, he was sentenced to 2 years and 11 months’ youth detention.
Mr Ibrahim was sentenced in the County Court on 8 February 2019 to a Community Corrections Order for the period of two years.
Applicable legislation
The applicant is accused of committing a Schedule 1 offence under the Bail Act 1977 (Vic) (‘the Act’), namely aggravated home invasion, and he is therefore required to establish exceptional circumstances before being eligible to be released on bail.[1] If exceptional circumstances are established, then the inquiry will turn to the issue of unacceptable risk.[2]
[1]Bail Act 1977 (Vic) s 4AA(1) (‘Bail Act’).
[2]Ibid s 4D.
The burden of establishing those circumstances rests with the applicant.[3] In considering whether exceptional circumstances exist, I am required to take into account the ‘surrounding circumstances’, which include, but are not limited to, the matters set out in s 3AAA of the Act.[4]
[3]Ibid s 4A(2).
[4]Bail Act (n 1) s 4A(3).
If I am satisfied that exceptional circumstances have been established to justify the grant of bail, I must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(a) of the Act. The actual test is found s 4E(1)(a) of the Act, requiring me to refuse bail to the applicant if the prosecutor satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail -
(i) endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the court of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
As with exceptional circumstances, when considering the unacceptability of the risk, the Court is required to take into account the surrounding circumstances set out in s 3AAA.[5] The Court must also take into account whether it is feasible to impose conditions on bail that may mitigate the risk such that it is no longer unacceptable.[6]
[5]Ibid s 4E(3)(a).
[6]Ibid s 4E(b).
Personal circumstances
The applicant is 19 years of age and, prior to his arrest, he had been residing in Brunswick. He worked as a labourer.
He has a significant criminal history dating back to 2015. His convictions in the Children’s Court include violence, dishonesty and driving offences. Relevantly, his history also discloses prior convictions for bail offences, including four prior convictions for committing an indictable offence whilst on bail between February 2015 and March 2016, and breaching conditions of bail.
On 16 October 2017, in the Castlemaine Children’s Court, he had been convicted of unlawful assault, throwing a missile to endanger a person, and recklessly causing serious injury. He was ordered to be detained in a youth justice centre for a period of two months. This sentence appears to have been at least partly served concurrently with a sentence that was imposed in the Melbourne Children’s Court on 9 August 2017 in relation to an aggravated burglary and armed robbery, for which the applicant was convicted and ordered to be detained in a youth justice centre for a period of 15 months. The total effective term imposed was 29 months.
Whilst in custody, it is alleged that the applicant was involved in a series of assaults against staff members and fellow prisoners at the Malmsbury Youth Justice Centre. Such actions include the punching of a staff member in the head and kicking them until other staff members intervened. Nevertheless, and perhaps surprisingly, he was released on youth parole.
The parole on which the applicant was released did not expire until 2 August 2019. It was still in effect at the time of the alleged offending. The conditions of that parole included attendance at a number of offence-specific programs, counselling and restrictions on movement. At this stage, parole has not been revoked. From the Youth Justice report received, the Youth Parole Board propose to postpone that decision until the issue of bail has been determined in this Court.
The competing contentions
Counsel for the applicant originally asserted that exceptional circumstances are made out because of the weakness of the prosecution case as it relates to charge of aggravated home invasion. That argument appears to be made primarily on the basis that the crowbar specified in the charge is not an offensive weapon. It was submitted on behalf of the applicant that the crowbar was utilised only as a means of gaining entry, with there being no other evidence of an intention that it be utilised to cause injury or to incapacitate a person, or that the co-accused had it for that purpose. The applicant also refers to the fact that the aggravated home invasion charge has been withdrawn in relation to the other co-accused.
In the course of argument, counsel appeared to resile somewhat from that position. It is clear in the material before me that the crowbar was being used for the purposes of gaining entry to the premises, and was in the possession of the offenders while inside. It might well have been used for an offensive or threatening purpose. Fortunately, the whole enterprise was interrupted by the arrival of the police before that occurred.
It was submitted in counsel’s affidavit in support of bail that there are issues with the prosecution case in relation to the other charges, particularly relating to the alleged burglary, home invasion and the factual allegations surrounding both vehicle collisions. The only submission made on this point was that the defence intend to allege that it was the police who ‘rammed’ the applicant’s vehicle and that damage sustained by the police vehicle was minor.
The affidavit also indicated that the applicant had stable accommodation and employment available to him upon his release. However, these arguments were not pursued at the hearing.
Counsel also points to the prospect of supervision by the Youth Parole Board should he be released. That, of course, depends on whether the Youth Parole Board decide that they will not revoke his parole. I have received a Youth Justice Bail Service Report dated 9 April 2019, which indicates that the applicant has been assessed as being unsuitable for the Youth Justice Supervised Bail program. In the course of that report, the author notes the following:
Mr Ghanim was subject to a Youth Parole Order at the time of the alleged offending before the Court was [committed]. This Youth Parole Order appears to have had limited deterrent impact upon him and concerns therefore arise in relation to what additional interventions can be implemented to mitigate Mr Ghanim’s risk to reoffend.[7]
[7]Codie Noonan, ‘Youth Justice Bail Service Report’, 9 April 2019, 5.
Mr Terry, on behalf of the applicant, ultimately relied on the youth of his client and delay to establish exceptional circumstances. Now at 19 years of age, the applicant is in adult custody for the first time, and has been since June of last year. He is presently being held in the general population area of Port Phillip Prison. It is argued that, should bail be refused, he could spend over 18 months on remand. However, it was not suggested that this would be well in excess of any sentence that might be imposed on him.
Counsel on behalf of the respondent submitted that the factors relied on by the applicant do not amount to exceptional circumstances. While the respondent conceded that 18 months was a significant delay, counsel submitted that, as a result of the charges of recklessly and intentionally exposing emergency workers to risk and the fact the applicant was on parole at the time of the alleged offences, the applicant may receive a considerable sentence if convicted.
With respect to risk, the respondent submitted that that the applicant is an unacceptable risk of endangering the safety and welfare of any person, committing further offences and failing to surrender into custody in accordance with the conditions of bail. The respondent argues that there are no conditions or support services that could satisfactorily ameliorate the risk to an acceptable level. This seems to reflect the views of Youth Parole Board.
Conclusion
In my view, the matters relied upon by the applicant, including the delay, the age of the offender and the asserted weaknesses in the prosecution case, do not, either in combination or individually, amount to exceptional circumstances.
That is particularly so when considering the surrounding circumstances. The applicant has been charged with serious offenses, including aggravating home invasion, and recklessly and intentionally exposing emergency workers to risk. This is further compounded by the accused’s criminal history, his poor performance whilst on bail and the fact that he was on parole at the time of the alleged offences. Each of those considerations militates against a conclusion that the circumstances relating to this applicant are exceptional within the meaning of the Act.
As to the delay, which is of concern, it was not suggested that the sentence which might be imposed on the applicant is likely be exceeded by his time on remand given the nature of his offending and previous criminal history.
The application for bail must be refused.
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