Re Granata
[2020] VSC 879
•18 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0344
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by ANTONIO GRANATA |
---
JUDGE: | T FORREST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 December 2020 |
DATE OF RULING: | 18 December 2020 |
CASE MAY BE CITED AS: | Re Granata |
MEDIUM NEUTRAL CITATION: | [2020] VSC 879 |
---
CRIMINAL LAW – Application for bail – Contravention of control order – Whether exceptional circumstances exist justifying bail – Meaning of ‘exceptional circumstances’ – Delay – Whether applicant presents unacceptable risk of reoffending or not complying with conditions of bail – Bail granted – Bail Act 1977 ss 3AAA, 4D, 4E; Crimes Act 1914 (Cth) s 15AA; Criminal Code Act 1995 (Cth) s 119(4)(i).
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Goodfellow | Patrick W Dwyer Barristers and Solicitors |
| For the Respondent | Mr A Sim | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
HIS HONOUR:
On 30 November 2020, Antonio Granata, the applicant, was arrested and remanded on one charge of contravening a control order contrary to s 104(27) of the Criminal Code Act 1995 (‘Criminal Code’). The informant for that offence is Federal Agent Charles Edwards, who gave evidence in the application.
The applicant pleaded guilty on 12 December 2018 to a charge of engaging in conduct preparatory to the commission of an offence of entering a foreign country with the intention of engaging in hostile activities contrary to s 119(4)(i) of the Criminal Code (‘the index offence’), having been arrested on 10 May 2016. His
co-offenders were Robert Cerantonio, Shayden Thorne, Paul Dacre, Kadir Kaya and Murat Kaya.
The applicant was sentenced in the Supreme Court on 22 February 2019 by Croucher J to four years’ imprisonment with a non-parole period of three years.
The circumstances of the index offence are described at paragraphs [1]–[4] in Croucher J’s sentencing remarks:
On 10 May 2016, Robert Edward Cerantonio, Paul James Dacre, Antonino Alfio Granata, Shayden Jamil Thorne and Kadir Kaya, all of whom hail from Melbourne, were arrested by police near Laura, a hamlet in the far north of Queensland. The group had travelled there from Victoria in a Hyundai SUV towing a seven-metre Haines Hunter boat. Police had had the men under surveillance for a considerable period and suspected that they had been preparing to head overseas in the boat to a foreign country for the purpose of engaging in a hostile activity in Syria or Northern Iraq. Each man was charged individually with an offence of that nature against s 119.4(1) of the Criminal Code.
On 27 May 2016, police arrested a sixth man, Murat Kaya, in Melbourne, and charged him with the same offence. He had been involved in the group’s activities over previous months but had not gone with them to Queensland. Instead, he had remained in Victoria.
Having been committed for trial in this Court a year or so later, all six accused were charged jointly on indictment with an offence against s 119.4(1) and in reliance on the joint commission provisions in s 11.2A of the [Criminal Code]. That indictment and its particulars have taken a few different forms, but the essence of the Crown case eventually became this. It was alleged that, between 22 October 2015 and 10 May 2016, each accused joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence.
Following a substantial amount of pre-trial argument concerning all manner of things, the cases against all accused progressively settled as pleas of guilty on substantially agreed factual bases. On 12 December 2018, Messrs Dacre, Granata and Kadir Kaya pleaded guilty. The next day, on 13 December 2018, Mr Cerantonio also pleaded guilty. Soon after the Christmas break, on 8 February 2019, Murat Kaya followed suit.[1]
[1]R v Cerantonio [2019] VSC 284 (‘Sentencing Remarks’).
The applicant’s sentence expired on 8 May 2020 and he was released from custody. By application of the Australian Federal Police (‘AFP’), an interim control order (‘ICO’) was issued under the Criminal Code on 2 June 2020 by the Federal Court of Australia in relation to the applicant. Justice White subsequently confirmed the control order (‘CO’) on 25 September 2020. It was served on the applicant on 30 September and remains in force until 2 June 2021.
The applicant now seeks bail on a charge of contravening that CO, specifically control 12.3, by allegedly causing his wife to use a telephone device on his behalf to seek information from the wife of Murat Kaya, his co-offender in the index offence, about how the AFP had dealt with Kaya in respect to alleged breaches of
his own CO.
The applicant filed an application for bail in this Court on 7 December after his application for bail was refused in the Melbourne Magistrates’ Court on 1 December. The matter is next listed on 22 February 2021 at the Melbourne Magistrates’ Court for committal mention.
The Statutory Test
Section 15AA of the Crimes Act 1914 (Cth) (‘Crimes Act’) relevantly provides as follows:
Bail not to be granted in certain cases
(1)Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
Persons covered by this section
(2)This subsection covers a person (the defendant) charged with, or convicted of, any of the following offences:
(a) a terrorism offence;
…
(2A) This subsection covers the following persons:
(a)a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism);
(b)a person who the bail authority is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.
The parties agree that the applicant is covered by s 15AA and must demonstrate that exceptional circumstances exist to justify bail, as the criteria in both sub-ss (2) and (2A) apply to him, for the following reasons:
First, the definition of a ‘terrorism offence’ referenced in s 15AA(2) includes an offence against pt 5.3 or pt 5.5 of the Criminal Code. The applicant is both convicted of an offence against pt 5.5 of that Act, and charged with an offence against pt 5.3 of that Act.
Secondly, the applicant is presently subject to a CO within the meaning of
pt 5.3 of the Criminal Code as referenced in s 15AA(2A).
The Bail Act 1977
(Vic) (‘Bail Act’) also applies to the applicant by virtue of
s 68(1) of the Judiciary Act 1903, which relevantly provides:
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
… holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
As such, if satisfied that exceptional circumstances exist, this Court must nonetheless refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would endanger the safety or welfare of any person, commit an offence whilst 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.
In considering whether a risk is unacceptable, a court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk to an acceptable level.
In interpreting and applying the Bail Act, the Court is required to have regard to the guiding principles set out in s 1B of the Act.
Meaning of exceptional circumstances under the Crimes Act
The phrase ‘exceptional circumstances’ is not defined in the Crimes Act.
As explained by Bongiorno J in the case of Hammoud v Director of Public Prosecutions (Cth),[2] s 15AA enacts a rebuttable presumption against bail being granted with the onus resting on the applicant to satisfy the court that exceptional circumstances exist.[3]
[2][2006] VSC 516 (‘Hammoud’).
[3]Ibid [1]–[2].
To do so the applicant must show that there is some situation which is out of the ordinary in some respect which he can point to as justifying the adjective, ‘exceptional’.
In Haddara v Director of Public Prosecutions (Cth),[4] Osborn J explained that ‘[t]he concept of exceptional circumstances is necessarily a flexible one’, and ‘may be constituted by a combination of matters which taken together render the case exceptional’.[5]
[4][2006] VSC 8.
[5]Ibid [5].
The requirement to establish exceptional circumstances pursuant to s 15AA of the Crimes Act has been said to be analogous to the provisions of the Bail Act which regulate the grant of bail by the use of that phrase with respect to certain serious State offences and some Commonwealth offences.
I have been directed to various authorities which all, in some way, have endeavoured to throw light on the phrase, usually by the substitution of a different adjective to ‘exceptional’ but carrying a similar meaning.
Over the years, in State and federal contexts, courts have used, inter alia, adjectives such as, ‘uncommon’, ‘unusual’, ‘atypical’, ‘abnormal’ and ‘extraordinary’,[6] and phrases such as, ‘out of the ordinary’.[7]
[6]R v Naizmand [2016] NSWSC 836, [8] (Harrison J) (‘Naizmand’).
[7]Hammoud [2006] VSC 516, [3] (Bongiorno J).
I do not propose to come up with an adjective of my own, and I doubt that the adjectives that I have set out above are interchangeable. ‘Uncommon’ circumstances would, in my view, set the bar lower than Parliament intended, and ‘extraordinary’ circumstances would set the bar higher than Parliament intended.
‘Exceptional’ is a normal English word in common use and with its own
well-understood meaning. I shall apply it in that sense. I accept that it is a flexible concept and that a combination of factors may constitute exceptional circumstances where, individually, they may not reach that level. I was taken to the New South Wales case of R v Naizmand[8] as a very rare example of a bail application linked to the control order offence. With respect, I disagree with that part of Harrison J’s analysis of the phrase ‘exceptional circumstances’ in that case, in which his Honour observed, ‘In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question.’[9]
[8]Naizmand [2016] NSWSC 836.
[9]Ibid [8].
Applying this logical process, an unanticipated event with widespread catastrophic consequences such as, for instance, the deferral of all court hearings for, say, five years, would not, in itself, be exceptional because it would apply to all prisoners on remand. In my view, the term ‘exceptional’ is used in a broader sense than to connote mere arithmetic. If, for example, an event is rare, it could be exceptional. But so could it be if it were ‘unexpected’ or ‘outstanding’ or ‘bizarre’ or, dare I say it, ‘exceptional’. My point is that, where Parliament has left a phrase undefined and where the liberty of its subjects are concerned, courts ought to be cautious in construing that phrase too narrowly.
The alleged offending
The applicant has been charged with one charge of contravening a control order pursuant to s 104.27 of the Criminal Code. The maximum penalty for this offence is five years’ imprisonment. As I have observed, the applicant was convicted of the index offence in 2019, along with co-offenders including Murat Kaya. Mr Kaya was sentenced to a term of imprisonment and was released from custody in early 2020 at the expiration of his sentence. He was made subject to an ICO on 22 January 2020, which was subsequently confirmed in the Federal Court on
29 July 2020.
As part of the CO, Mr Kaya was provided with a mobile phone handset by the AFP that he alone was permitted to use. He was prohibited by the CO from causing another person to use or access that phone. On 16 November 2020, Mr Kaya was arrested for contravening that CO on five occasions. The alleged breaches arose from the permitted mobile phone being used on loudspeaker mode and the applicant either allowing other people in his presence to contribute to the conversation or allowing others to use the permitted phone.
The applicant’s CO, made on 25 September 2020, contains numerous controls prohibiting, limiting or excluding the applicant from certain actions. Relevantly to this application, control 12.3 prohibits him from ‘causing or permitting another person to use or access any mobile telephone device on his behalf’.
It is alleged that between 10:50 am and 11:40 am on 18 November 2020, the applicant contravened that control. At about 10:50 am, lawfully intercepted information indicates that, over the telephone, the applicant asked his wife, Ms Demirok, to contact Mr Kaya’s wife to find out if Mr Kaya had been warned prior to this arrest. Ms Demirok refused as she did not want to get involved. The applicant was persistent and allegedly called to ask her again about 40 minutes later.
Ms Demirok continued to refuse before saying she was going to leave the call to do something else, to which the applicant said, ‘So you’re not doing that for me.’ Ms Demirok then replied, ‘Yeah, I messaged her but I’m not happy about it ‘cause you just … it’s completely fucking irrelevant.’
The applicant was arrested on 30 November 2020 at his residence in relation to the alleged contravention. In his record of interview, he confirmed that he was aware of the CO and his obligation to comply with its terms, but he provided no further comment. A search warrant was also executed at his residence, during which the AFP made a copy of Ms Demirok’s primary phone and seized a number of other electronic devices, including Ms Demirok’s secondary phone.
Call charge records indicate Ms Demirok received seven messages from Mr Kaya’s wife between 10:51 am and 10:58 am on 18 November 2020. The police summary states that a preliminary review is yet to identify a method of contact from Ms Demirok to Mr Kaya’s wife, with no messages identified as being sent from Ms Demirok’s phone. In discussion, Mr Sim, for the respondent, pointed out that messages can be deleted from telephones and that investigations into Ms Demirok’s phone were continuing.
It should be noted that, as yet, there is no evidence that Ms Demirok did send any messages at the applicant’s behest besides her previous representations to the applicant in the course of the intercepted telephone conversations that she had done so.
The applicant is now 30 years of age. He is married with a young child. His wife is currently pregnant with their second child, which is, I’m told, due
in April 2021.
In 2019, as I have indicated, the applicant was convicted of engaging in preparatory conduct for incursions into a foreign country for the purpose of engaging in hostile activities and was sentenced to four years’ imprisonment with a non-parole period of three years. The applicant does not have any other
criminal history.
The applicant’s submissions
In written submissions and again in oral submissions it was put on behalf of the applicant that the following matters combined to establish exceptional circumstances that justify the grant of bail.
(a) Strength of the prosecution case
It was submitted that there was no direct evidence of the applicant causing another person to use or access a mobile device, as he is prohibited from doing by control 12.3. Rather, the intercepted telephone calls between the applicant and his wife proved no more than that he had asked her to ‘talk to’ and ‘ask’ his co-offender’s wife, without specifying a means of doing so.
(b) Nature and seriousness of the charged offence
The applicant submitted that the charged offence consisted of a sole alleged breach of a CO and that it was of a nature that had nothing to do with the purpose of the CO, which is of course to protect the public from terrorist acts and to prevent support for hostile activity in foreign countries.
So the submission proceeded that the evidence on which the charge was based did more to demonstrate the applicant’s anxiety about inadvertently breaching the CO than it did any intention of or flippancy about breaching it.
(c) Compliance with the CO
Notwithstanding the current alleged breach, the applicant contended that he has complied with each of the obligations, prohibitions and restrictions of both the interim and final COs.
It was put on the applicant’s behalf that he has made every effort to comply, despite the broadness, complexity and ambiguity of many of the controls, and has even proactively contacted the AFP when concerned a breach of the order may be necessary; for example, the need to collect his wife from hospital in breach of
curfew conditions.
(d) Delay
The applicant has been in custody since his arrest on 13 November 2020 and his matter is next listed on 22 February 2021 at the Melbourne Magistrates’ Court for committal mention. It is submitted that there is a risk that the time spent on remand will exceed the likely sentence that he may receive if the charge is proven.
(e) Family support and suitable accommodation
The applicant is supported by his wife. He has a young child and his wife, as I have said, is pregnant with their second child, due to be born in April 2021. The applicant proposes to return to live with his family at an address in Roxburgh Park if released on bail.
(f) Availability of employment
The applicant recently found work as a painter. He started painting a house in 2020 but that job remained only half complete due to his arrest and incarceration. He had been recommended to the owner and, in a letter to the Court dated 5 December 2020, she stated that she found him to be hardworking, courteous and respectful and, perhaps more importantly, the work remains half finished.
(g) Support services in the community
The applicant was referred to the Community Integration Support Program (‘CISP’) in March 2019 whilst he was in custody. The program is run by Victoria Police, with its Counter Terrorism Strategy 2018–2021 describing it as a partnership with community groups and other areas of government to engage with individuals assessed as vulnerable to radicalisation or convicted terrorists for the purpose of assisting with their rehabilitation and reintegration. The program is said to involve the development of individual case management plans to connect individuals with religious and secular mentors.[10]
[10]Victoria Police, Counter Terrorism Strategy 2018–2021 (Report, August 2018) 8.
An email from Acting Inspector Adam Bell of Victoria Police confirmed that the applicant participated in CISP assessments from May 2019 and consented to being part of the program at that time. The applicant maintained his engagement with CISP after his release from prison earlier this year, including an attendance on a CISP religious mentor, reintegration officer and mental health officer. Acting Inspector Bell confirmed that the applicant can continue his voluntary participation in CISP if he is released on bail.
(h) Parity
It was submitted that a co-offender to the index offence, Murat Kaya, was released on bail on 1 December 2020 after he was charged and remanded in relation to contravening his CO. The extract of the order obtained from the Melbourne Magistrates’ Court confirms that Mr Kaya was granted bail on 1 December 2020 with a number of conditions, including $100,000 surety. Bail was granted due to having a stable residence, ties to the jurisdiction, likely delay, the availability of treatment, family support and the strength or otherwise of the prosecution case.
In discussion I pointed out to Mr Goodfellow, who appeared for the applicant, that this is not strictly a parity argument. Kaya was a co-accused with the applicant in the original offending and, like the applicant, had been placed on a CO after his prison sentence expired. His alleged breaches, however, are of a different type and there is no suggestion that the applicant was criminally involved in Kaya’s alleged breaches or vice versa. It is simply an example of an accused being granted bail for a similar offence.
(i) Surety
The applicant’s grandparents, Sebastiano and Nunzia Alicata, have offered surety in a property that they own outright in Thornbury. Mrs Alicata gave evidence at the hearing through the use of an interpreter. She stated that she is prepared to act as surety and I am told she has received independent legal advice on that issue.
(j) COVID-19 and the onerous conditions of custody
Due to COVID-19 related restrictions at the Metropolitan Remand Centre, the applicant’s time on remand has been more onerous than it would be in normal circumstances. The entire period has been spent either in quarantine or in isolation and personal visits have been limited. So far the applicant, as I understand it, has spent 18 days in isolation.
Unacceptable Risk
It was further submitted that the applicant is not an unacceptable risk of the kind set out in s 4E of the Bail Act. The following factors were submitted as grounding this assessment:
(a) Compliance
Apart from the present charge, it is undisputed that he has otherwise complied with the CO, indeed, demonstrating a strong commitment to compliance. It was submitted that there was thus no demonstrable risk of further offending and that even the present alleged offending could have been prevented by a warning from the AFP.
(b) Nature and seriousness of the charged offence
As the applicant submitted in arguing for the existence of exceptional circumstances, the alleged breach of the CO had nothing to do with the order’s purpose of protecting the public from terrorism or preventing hostile activities in foreign countries. The alleged offending thus did not demonstrate a risk to the safety or welfare of any person should the applicant be released on bail.
(c) Monitoring
The applicant is already closely monitored for at least the next six months, as a condition of the existing CO, thus reducing any risk of future offending or
to public safety.
(d) Criminal history
While it was conceded that the index offence was serious, I was directed to the fact that the applicant had no history of violence nor had he demonstrated any propensity for future acts that might pose a risk to the safety or welfare
of any person.
I was taken to a passage from Croucher J’s sentencing remarks wherein his Honour found that the applicant was not, as part of his factual involvement in the index offence, destined to commit any acts of violence himself.[11]
[11]Sentencing Remarks [94].
(e) Delay in remand
It was submitted that the potential for an extended time on remand due to the delay in his case being heard would serve to deter him from offending in the future.
(f) Community Integration Support Program (‘CISP’)
The applicant has continued in the community as I have indicated earlier, and it was further submitted that any risk of reoffending or endangering the safety or welfare of any person could be mitigated to an acceptable level by the imposition of any bail conditions. The applicant, under the heading of unacceptable risk, also recapitulated the factors of the availability of stable accommodation, ongoing employment, family support and the like.
The respondent’s submissions
The respondent opposed the application for bail on two grounds. First, it was submitted that the applicant has not discharged the burden of satisfying the Court that exceptional circumstances exist that justify the grant of bail. Second, it was submitted that there is an unacceptable risk that, if granted bail, the applicant would commit an offence whilst on bail or endanger the welfare or safety of any person.
Exceptional circumstances not made out
In written submissions and then in oral submissions, the respondent argued that the applicant had failed to meet his burden of demonstrating that exceptional circumstances exist. Factors weighing in support of this submission included:
(a) The seriousness of the charged offending
The respondent submitted that the applicant’s breach of the CO was a serious one, notwithstanding that it was not in itself related to terrorism. It was argued that, due to the importance of COs, compliance with them was particularly significant. Therefore, so the submission went, any ‘defiance’ of a CO, regardless of its particular nature was, in itself, a grave offence.
Further, the respondent characterised the alleged contravention as ‘blatant and deliberate’, consisting of two separate phone calls, albeit only minutes apart. I think it is fair to say that Mr Sim, in a very fair and balanced set of oral submissions, stepped back from language such as ‘blatant and deliberate’ but nevertheless did not resile from the proposition that this was a serious offence.
In aid of his submission, the respondent cited the only instances to date where a charge of contravening a CO has been before a sentencing court, both occurring in New South Wales, in the cases of R v MO (No 1)[12] and Naizmand. In both those cases hefty sentences were imposed (two years and six months’ and four years’ imprisonment respectively) and it was said that this demonstrated the seriousness with which the offence should be regarded, and that any custodial term imposed on the applicant should he be found guilty, was likely to be ‘not insignificant’.
[12][2016] NSWDC 144.
(b) Delay
While it was conceded both in writing and orally that there will be some delay in this matter as an inevitable consequence of the current pandemic, it was submitted that that circumstance in itself was not exceptional.
(c) Strength of the prosecution case
It was submitted that the prosecution case is strong given the CO had been explained to and accepted by the applicant and the evidence of the applicant’s contravention of the CO contained in the intercepted telephone calls. Mr Sim submitted that, whilst the calls did not specifically countenance a text message or other use of a mobile phone, there was a clear inference available that that was what the applicant was requesting his wife to use.
(d) Impact of COVID-19 on onerousness of custody
In written submissions, the respondent contended that the impact of
COVID-19 on the applicant’s experience of custody should be accorded very little weight given the recent easing of restrictions in custodial facilities announced by Corrections Victoria on 23 November 2020. Personal visits and face-to-face programs have both resumed and, given the absence of any active cases of
COVID-19 in the prison system, remaining restrictions could be expected to continue to be lifted.
Further, the applicant is not a person who is particularly vulnerable to the impacts of the virus, on the basis of his age and apparent good health.
(e) Personal circumstances of the applicant
It was submitted by the respondent that the personal circumstances relied upon by the applicant — including his stable accommodation, family support, ongoing employment, engagement with CISP and his wife’s pregnancy — were not, either taken in combination or considered individually, unusual or extraordinary and thus did not combine to clear the high hurdle of exceptional circumstances.
Unacceptable risk
Risk of reoffending
On the issue of unacceptable risk, the respondent contended that there was an unacceptable risk of the applicant committing an offence whilst on bail by contravening the CO for the following reasons.
· The applicant had been served with a copy of the CO and had it explained to him.
· The applicant’s contravening conduct was persistent in that he called his wife on two occasions, approximately one hour apart, and made repeated requests for her to contact Mr Kaya’s wife.
It was submitted that the applicant thereby had demonstrated a willingness to deliberately contravene the order. Further, it was said that any bail conditions imposed by this Court are not likely to mitigate to an acceptable level the risk that he would do so again, given that he is already subject to 19 controls under the CO.
Risk to the safety or welfare of other persons
In relation to the risk of endangering the safety or welfare of any person, the respondent, through the informant and in submissions, pointed to the applicant’s prior conviction for a serious foreign incursion offence that carried a potential maximum penalty of life imprisonment. He served his full term of imprisonment and upon his release, he was assessed as still posing a sufficient risk to the community to cause the AFP to seek, and the Federal Court to make, a CO.
In making the CO, White J was satisfied on the balance of probabilities that each control was reasonably necessary to protect the public from a terrorist act, prevent the provision of support for or facilitation of a terrorist act or prevent the provision of support for or facilitation of engagement in hostile activity
in a foreign country.
The respondent pointed to the Bail Act requirement in sub-ss 3AAA(m) and (n) that the Court take into account whether the applicant has expressed support for the doing of a terrorist act, a terrorist organisation or the provision of resources to a terrorist organisation when assessing whether the applicant poses an unacceptable risk.
Analysis
Exceptional circumstances
After anxious deliberation I have concluded that the applicant has demonstrated that exceptional circumstances exist to justify a grant of bail. In reaching this conclusion, I am mindful that COs are an important part of protecting our citizens from attacks from within, that strict compliance is mandatory and that breaches of COs, if proven, are to be treated seriously by the courts.
I have concluded that the applicant has discharged this heavy burden for the following reasons:
(a) Strength of the prosecution case
It is a matter of notoriety that attempts at evaluating the strength of a prosecution case at an early stage of the legal process can be highly unreliable. That said, I am unable to conclude on the evidence available to me that the case is overwhelming or even particularly strong. To prove its case on a breach of control 12.3, the prosecution will need to establish that the applicant ‘caused or permitted another person to use or access any mobile telephone device on his behalf’.
I viewed the relevant portions of the impugned transcripts of the calls between the applicant and his wife, Ms Demirok. As best I can comprehend them, nowhere does the applicant state words to the effect, ‘Use your mobile phone to effect this communication.’ The prosecution will rely on inference to prove this element — the central element — circumstantially.
Further, at this stage, it is not clear to me that the applicant’s wife actually made a call using her phone to Kaya’s wife. So far as I understand it, there are plenty of calls or messages coming into Ms Demirok’s phone from Mr Kaya’s wife but, at this stage in any event, none have been detected going out at the relevant times. That may change as the evidence is gathered but at this early stage I am satisfied on the basis before me that the case is not strong.
(b) Seriousness of the alleged offending
If the offence is proved it carries a maximum of five years’ imprisonment. Presumably a sentence of that magnitude would be reserved for worst-case offences of this nature. If this offence is proved, I consider that it does not fit within this category, nor does it sit anywhere near this category.
(c) Delay
Associated with any likely sentence that may be imposed in this matter is the aspect of delay in the legal process. We are living in extraordinary times. The pandemic has been quelled in Victoria for the moment. I think I can take judicial notice of its outbreak in New South Wales and the fact that our international travellers are returning to hotel quarantine. It is premature to suggest that the danger in this State is passed and that soon the court system will return to business as usual.
The applicant is charged with an offence that at the moment is to be heard in the County Court or this Court before a judge and jury. He therefore must go through the committal stream. His next court appearance is for committal mention on 22 February 2021. By that stage, if his application is unsuccessful he will have spent just short of three months in custody. Thereafter, assuming the committal is contested and that he is committed for trial, he can expect a committal by roughly late April or early May 2021.
It is impossible to say when, assuming he is committed, he can expect a trial to be conducted. What can be said however is that the County Court, where the applicant’s jury trial will likely be held, is highly compromised in its capacity to hear trials. At the moment I understand its maximum capacity is six jury trials at any one time, occupying 12 courtrooms, each trial sitting for approximately four hours a day and with staggered starting times so as to achieve social distancing within the jury pool room, as well as in the courtrooms themselves.
The net result is that extraordinary delays in hearing trials have been and are inevitable. As a Commonwealth offence, there is no legislative scope for a judge-alone trial.
In my view, it is reasonable to hypothesise that if the applicant is not granted bail he will all told be held in custody for at least 18 months to two years. If the applicant were ultimately found guilty I consider that any likely sentence would be exceeded by the amount of time spent on remand, in the event that bail was refused.
(d) Onerousness of conditions of custody
The applicant remains in isolation on remand. Given the nature of his prior offending and his current alleged offending, he would likely be held in some form of protective custody, regardless of the pandemic. Further, it is highly likely in the present circumstances, if this application were to be denied, that his circumstances of incarceration would be quite onerous.
(e) Compliance with CO
The informant, Agent Edwards, gave what I considered to be very fair and sensible evidence. He stated that the applicant had complied with his CO over a
six-month period, other than for the alleged offending, and at times had telephoned the AFP to ensure that any proposed activities were within the terms of the order. Mr Edwards also accepted that the applicant’s wife is currently pregnant and that he, the applicant, is participating in a CISP program.
(f) Personal circumstances
The applicant has stable accommodation available to him with his wife and child in the family home and immediate work available to him as a house painter.
(g) Surety
As previously stated, the applicant’s grandparents have indicated a willingness to provide a surety in the amount of $100,000, offering a home in Thornbury as security.
These factors, (a)–(g), have in combination operated to discharge the burden of proving exceptional circumstances under which the applicant laboured. I am particularly influenced by my conclusions on the potential delay in hearing the matter, the fact that I think that a contested trial is likely and the fact that I consider any likely sentence would, absent bail, be less than the time served on
remand pre-trial.
Unacceptable Risk
I turn to the question of unacceptable risk. It is common ground that the respondent bears the onus of demonstrating that the applicant presents an unacceptable risk of committing an offence whilst on bail or endangering the safety or welfare of any person. The respondent essentially pointed to the applicant’s prior convictions for a terrorism-related offence and his alleged breach of the impugned CO as providing an evidentiary basis for his concerns as to risk, which I have already set out.
It is sufficient to say, in my view, that any risks involved in granting bail can be mitigated to an acceptable level by stringent bail conditions that would include a surety and otherwise, in some respects, duplicate the conditions contained within the CO. I propose a surety of $50,000 with the following special conditions.
(1) The applicant is to appear at the Melbourne Magistrates’ Court on 22 February 2021, and then surrender himself, and not depart without leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(2) The applicant is to reside at the address at which he currently resides with his wife and child (‘the premises’), and not change that address without leave of this Court or the Magistrates’ Court.
(3) The applicant must abide by a curfew each night, requiring him to be present at the premises between the hours of 12:00 am and 6:00 am each day for the duration of bail.
(4) The applicant must present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(5) At such time that the control order expires, the applicant must report to Craigieburn Police Station each week on Monday between the hours of 7:00 am and 7:00 pm, and, during any time that non-essential movement outdoors is restricted due to the COVID-19 pandemic, must report to a police officer at that police station by Skype each week on Monday between the hours of 7:00 am and 7:00 pm.
(6) The applicant must not request or cause any other person to use or access any mobile telephone device on his behalf.
(7) The applicant must not leave the State of Victoria.
(8) The applicant must not attend any points of international departure.
---
4
0