Re Guerra
[2023] VSC 795
•8 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0288
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an application for bail by CODY GUERRA
BETWEEN:
| CODY GUERRA | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November & 4 December 2023 |
DATE OF JUDGMENT: | 8 December 2023 |
DATE OF REASONS: | 7 February 2024 |
CASE MAY BE CITED AS: | Re Guerra |
MEDIUM NEUTRAL CITATION: | [2023] VSC 795 |
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CRIMINAL LAW — Application for bail — Charges relating to burglary and theft — Intellectual disability — Young age — Delay — Special vulnerability — Exceptional circumstances satisfied — Unacceptable risk not established — Risk can be reduced through strict bail conditions — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | T Battersby | Slink & Keating |
| For the Respondent | P Murphy | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail by Cody Guerra [‘the applicant’]. He seeks bail with respect to the following charges, pertaining to six separate informants, on various dates between July and October 2023:
Matter Dates Charges Informant Mosdall Alleged offending on 2 July 2023
Charged on 21 November 2023
Burglary
Attempted theft from a motor vehicle
Informant Olley Alleged offending on 31 August 2023 and 14 September 2023
Charged on 30 October 2023
Theft from a motor vehicle
Attempted theft
Theft of a motor vehicle
Learner driver unaccompanied
Burglary
Informant Kos Alleged offending on 8 October 2023
Charged on 20 October 2023
Burglary (three charges)
Theft (three charges)
Attempted burglary (two charges)
Unlicensed driving
Informant Owen Alleged offending on 17 October 2023
Charged on 23 October 2023
Attempted burglary
Burglary
Theft
Handle stolen goods
Informant Winkler Alleged offending on 17 October 2023
Charged on 30 October 2023
Burglary
Theft of a motor vehicle
Theft (three charges)
Informant Osekowski Alleged offending on 29 October 2023
Charged on 7 November 2023
Theft from a motor vehicle Outstanding matters for which the applicant is currently on bail/summons
The applicant is currently on bail in the Informant Tipas matter for the following charges:
(a) theft of motor vehicle;
(b) theft;
(c) unlicensed driving;
(d) failing to stop a motor vehicle;
(e) burglary;
(f) criminal damage; and
(g) attempted theft.
This matter returns to the Sunshine Magistrates’ Court on 19 March 2024 for mention.
The applicant is currently on summons in the Informant Patounas matter (for charges of burglary and theft). It is alleged that the applicant entered a residential premises in Caulfield North on 22 October 2023 and stole alcohol, a laptop computer, and an engagement ring and a watch, to the value of around $35,000.
This matter returns to the Moorabbin Magistrates’ Court on 15 February 2023.
Procedural history
On 23 October 2023, the applicant was arrested and released on an undertaking of bail in relation to the Informant Kos matters.
The applicant was arrested on 21 November 2023 in relation to the Informants Owen, Winkler, Mosdall, Osekowski and Olley matters, and has been in custody since this date.
The applicant applied for bail in the Broadmeadows Magistrates’ Court on 23 November 2023. Bail was refused on the grounds that exceptional circumstances were not made out and the applicant posed an unacceptable risk that could not be ameliorated by the imposition of bail conditions. Bail was revoked in relation to the Informant Kos matters.
The matters are next listed for mention at the Melbourne Magistrates’ Court on 13 December 2023.
On 24 November 2023, the applicant filed an application for bail in this court.
The alleged offending
Given the volume of alleged offending in this matter, I will only briefly summarise each incident in chronological order.
Informant Mosdall — 2 July 2023
It is alleged that on 2 July 2023 at 1:16am, the applicant, with two co‑accused, attended an apartment complex in Balwyn in a stolen Holden Calais. CCTV identifies the applicant attempting to manipulate the locked steel gate using a silver pipe or similar.
Once inside, the applicant entered the carpark. The applicant and a co‑offender allegedly broke into a Subaru Impreza by smashing a window. Nothing was stolen.
Later that day, the stolen Holden Calais was involved in a collision and the applicant was located by police shortly after, hiding nearby.
Informant Olley — 31 August 2023
On 31 August 2023 at 8:54am, the victim, SB, attended the Monash Heart Health Centre in Clayton. SB parked and locked her vehicle in the hospital carpark. She then went inside the hospital.
Another victim, NA, also parked her vehicle in the hospital carpark at around 8:56am. NA then went inside the hospital, where she was visiting.
When SB returned to her vehicle around two hours later, she observed some damage to the front right hand side wheel and reported this to police.
NA returned to the carpark at around 12:15pm to find her vehicle had been stolen. She reported the theft to police.
It is alleged, based on CCTV footage that has been retrieved, that just before 9:00am, two male offenders, one being the applicant, attended the carpark in a 2015 Hyundai Tucson with cloned registration plates. It is alleged the applicant and the co‑offender waited for NA to leave her vehicle, before stealing it and driving it away in convoy with the Hyundai Tucson at around 9:54am, forcing the boom gates of the carpark open in order to facilitate their escape.
It is alleged that the applicant and co‑offender used sophisticated methods to steal the vehicle by using electronic wireless devices that plug into the vehicles’ “Onboard Diagnostics Reader”. It is alleged that the offenders attempted to steal SB’s car using this method, resulting in the damage.
It is further alleged that at around 10:13am, the applicant and co‑offender stole another vehicle owned by victim NW from a carpark at Monash University in Clayton. They allegedly travelled to the carpark in the same Hyundai Tucson.
It is further alleged that on 13 September 2023, the applicant attended an address in South Melbourne with two co‑offenders. They stole another vehicle owned by victim MO, again using a sophisticated diagnostic tool to re‑program the key for the vehicle.
Informant Kos — 8 October 2023
It is alleged that on 8 October 2023, at around 11:00am, the applicant and a co‑offender broke into a construction site in South Yarra and stole items from three houses under construction, namely a commercial vacuum cleaner, underlay, and boxes of timber flooring. An independent witness observed the theft, and took a video of the white Holden Commodore the applicant and co‑offender allegedly used during the incident. The items were located at the applicant’s address during the execution of a search warrant.
Later that day, at approximately 1:45pm, it is alleged the applicant and co‑offender attempted to break into a residential premises in Armadale. The same Holden Commodore was captured on CCTV footage. It is also alleged they broke into a residential premises in Prahran and stole various items at around 1:20pm on the same day, being seen by a witness.
It is alleged the applicant also broke into a Mercedes Benz in Glen Waverley at around 5:30pm, as captured on CCTV.
According to police, at around 9:00pm on 7 October 2023, an independent witness observed observe a white Commodore dumping a bag of property on a nature strip in Springvale. The applicant’s address is close to the location where the property was dumped. The witness collected the property and located passports, certificates and other documents in the names of the victims of the burglary on 6 October 2023.
A search warrant was executed at the applicant’s home on 18 October 2023. Significant quantities of stolen property were located at the premises.
Informant Owen — 17 October 2023
On 17 October 2023, at approximately 12.30pm, the accused, co‑accused Matthew Karajanov, and an unknown driver attended an address at Reservoir, where they allegedly reversed their vehicle (with stolen registration plates 1GK8YA) into the driveway, subsequently exiting the vehicle and knocking on the door. The co‑accused subsequently retrieved a crowbar from the vehicle, and tried to open the front door before the victim yelled out from within the house. The co‑accused and applicant then re‑entered their vehicle and drove away. The incident was captured on CCTV.
At approximately 12:45pm on the same day, the accused, co‑accused and an unknown driver attended a residential address in Preston. They did so in the same vehicle with the same stolen registration plates.
Again, the applicant and co‑accused allegedly attended the rear of the premises with a crowbar, using it to force open the rear door, whereupon the applicant and co‑accused ransacked the property. Internal CCTV captured the incident. It is alleged the applicant and co‑accused stole numerous items, to the value of approximately $87,796, before driving off in an unknown direction. No victims were home at the time of the alleged ransacking.
The applicant was arrested for unrelated matters in the Broadmeadows area on 20 October 2023, and was wearing the same distinct board shorts captured in the CCTV footage.
Informant Winkler — 17 October 2023
It is alleged that on 17 October 2023 at around 5:00pm, the applicant and co‑accused Matthew Karajanov attended an address in Malvern in a Holden Commodore with stolen registration plates. It is alleged they cased addresses in Eva Street, Malvern, before entering a residence by opening a rear laundry window and stealing a Chubb safe full of heirloom jewellery, an iPhone and a Tag Heuer watch.
The offenders forced open the front door of the residence and stole the BMW in the residence’s driveway. The offenders collided with a carport before driving away in convoy with the stolen Commodore.
Call Charge Records taken from a phone registered in the name of the applicant’s sister place the phone in the Malvern area between 4:30pm and 4:46pm.
On 18 October 2023 at 9:20am, the black Holden Commodore attended an address in Keilor Park in convoy with another car, with the occupants dumping the safe at the end of the court and driving away. This was observed by witnesses and reported to police. The stolen BMW was later located in Malvern on 24 November 2023 and examined by Victoria Police. Forensic results are still pending.
Informant Osekowski — 29 October 2023
On 29 October 2023, the applicant allegedly stole a first aid kit, umbrella, logbook, charger and cables from a white Kia sedan in Toorak. The incident was captured on CCTV.
Co-accused
The co‑accused, Matthew Karajanov, was charged in relation to both the Informants Winkler and Owen matters. He was refused bail in the Broadmeadows’ Magistrates Court on 24 November 2023.
The co‑accused. Rickie King, was charged in relation to the Informant Olley matter and refused bail in the Melbourne Magistrates’ Court on 21 September 2023.
Paul Nikolic was also charged in relation to these matters and was released on police bail on 20 October 2023.
The co‑accused, Cameron Shaw, was charged in relation to the Informant Tipas matter. He was released on police bail on 20 October 2023.
It is not necessarily clear from the available material as to the extent to which the co‑accused persons were involved across which episodes of alleged offending, nor as to their individual backgrounds. In those circumstances it is not practical to analyse the issues of parity of treatment between co‑accused persons, and the applicant, beyond observing that there are likely to be many differences in circumstances pertaining to individual decisions about whether bail was granted or not.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (Vic) [‘the Act’], the court is required to have regard to the guiding principles set out in section 1B.[1] Section 1B provides:
[1]Bail Act 1977 (Vic), s 1B(2).
(1)The Parliament recognises the importance of—
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Step 1 — the exceptional circumstances test
The applicant bears the onus of proving to the requisite standard that exceptional circumstances exist to justify the grant of bail.[2] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[3]
[2]Ibid ss 4A(1A)–(2), 4C(1A)–(2).
[3]Ibid s 4A(3).
Step 2 — the unacceptable risk test
If satisfied that exceptional circumstances exist, the court must then apply the unacceptable risk test.[4] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that this risk is an unacceptable one.[5] In considering whether any relevant risk is unacceptable, the court must again have regard to the surrounding circumstances in section 3AAA(1) and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[6] As it turns out, in my opinion, the question of risk deserves particular attention in the circumstances of this application.
[4]Ibid ss 4A(4), 4D(1)(a).
[5]Ibid s 4E(1)–(2).
[6]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 19 years old and has never been in adult custody before. At the time of the hearing of this application, he was the father of an 18‑month‑old child with his partner, AG. Further, AG gave birth to the applicant’s second child during the course of these proceedings. The applicant resides with AG in Springvale when he is in the community.
The applicant is reportedly affected by both an intellectual disability and Attention Deficit Hyperactivity Disorder [‘ADHD’]. There is a current investigation into the presence of an Acquired Brain Injury, with a neuropsychological assessment booked for January 2024.
The applicant receives assistance from the National Disability Insurance Scheme [‘NDIS’] whilst in the community.
Prior to his remand, the applicant had been working full time as a concreter but only for a period of about two weeks.
Criminal history
The applicant has a criminal history appearing to span from 2019, namely:
(a) on 30 May 2023, the applicant was found guilty without conviction in the Dandenong Magistrates’ Court for reckless conduct endangering serious injury, theft of a motor vehicle, fail to render assistance, failure to give his name and address, and driving whilst disqualified, in relation to offending on 8 March 2023. He was also found guilty without conviction for a number of theft and driving offences in relation to a series of offending between 11 August 2022 and 29 October 2022. The matter was adjourned until 29 November 2024 and the applicant’s licence was suspended for four months;
(b) on 8 June 2022, the applicant was found guilty in the Heidelberg Children’s Court for possessing a controlled weapon, negligently dealing with proceeds of crime, and possessing drugs of dependence. He received a Good Behaviour Bond;
(c) on 12 January 2022, the applicant was found guilty in the Heidelberg Children’s Court of a number of theft and driving offences for a series of offending between 1 June 2021 and 8 June 2021. He was also found guilty of burglary and theft in relation to a residential burglary of a safe containing jewellery and currency. The applicant was placed on probation for four months;
(d) on 2 February 2021, the applicant was found guilty in the Broadmeadows Children’s Court of breaching a Youth Supervision Order; and
(e) on 22 July 2020, the applicant was found guilty in the Broadmeadows Children’s Court of breaching a Youth Supervision Order. He had been placed on this order in 2019 in respect of charges involving reckless conduct endangering serious injury, and other charges associated with driving, drugs theft, failing to answer bail, and assault in company.
The applicant’s contentions
The applicant submits that exceptional circumstances exist to warrant the grant of bail. He relies on the following matters and surrounding circumstances in support of this submission.
Nature and seriousness of the alleged offending
The applicant acknowledges that the charges he faces are serious, but submits that they are not the most serious example of this type of offending. During cross‑examination of the informant, counsel for the applicant put to the informant that the value of the property alleged to have been stolen on at least one occasion was “low”. The informant agreed with this characterisation. I pause to reflect that monetary value is not necessarily the measure of gravity, as the damaging and stealing of property — especially personal and treasured possessions that are perhaps irreplaceable — often deeply affects the owners, resulting in enduring pain, reduced feelings of safety, and lack of future confidence.
Strength of the prosecution case
It is submitted that the prosecution case can presently be characterised as weak. The applicant points to the absence of any police brief, DNA evidence, fingerprint evidence or CCTV footage.
Criminal history
The applicant concedes he has a criminal history, but states that the history is mostly from the Children’s Court. The applicant only has one matter before another court, namely contravening a conduct condition of bail, which is being heard by the Magistrates’ Court.
Bail compliance history and outstanding matters
The applicant submits that, while he has been charged with contravening a conduct condition of bail (as stated above), he has not been charged in the Magistrates’ Court with a failure to answer bail. Nevertheless, it is acknowledged on his behalf that he has a history of committing bail offences in the Children’s Court.
Special vulnerability and personal circumstances
The applicant’s counsel emphasised that the applicant is a young man who, at age 19, has never been in adult custody. It is submitted that he will be vulnerable in custody on account of his age, the fact that he presents as immature, and his impaired intellectual functioning.
The applicant has both an intellectual disability and ADHD, which is confirmed in the report of Dr Min‑Yun Hsieh, dated 10 May 2021. I note that this report is somewhat dated, and does not appear to be prepared for use in legal proceedings. It was submitted that the applicant has significant deficits in both intellectual functioning and adaptive behaviours. In this respect, the applicant contends that, if later found guilty of committing offences, he might be referred to the Assessment and Referral Court, or have imposed a community corrections order associated with a Justice Plan.
With respect to any causal link between the applicant’s mental health and his offending, the report of Dr Min‑Yun Hsieh notes the applicant has “significant difficulty inhibiting pre‑potent responses to something that is more interesting in the moment, particularly when he can see or imagine immediate rewards”. The applicant’s counsel submits that his offending can therefore be tied to his disability. The matters discussed immediately above are more likely to become significant at a later stage in the disposition of the applicant’s matters.
The applicant also has support available through the NDIS in the community.
In relation to his personal circumstances, as noted, when this application began, the applicant had one child to his partner, AG. She was due to give birth to the applicant’s second child on the first day of this bail application. In fact, the baby was subsequently born on 1 December 2023. The applicant resides with AG, who is supportive of him.
Availability of treatment or bail support services
Counsel for the applicant submitted that the applicant has substantial support available to him, including the support of the NDIS, the Court Integrated Services Program [‘CISP’] and Williams House Youth Residential Withdrawal Service [‘Williams House’]. He has an offer of a week of support from Williams House, which will run from 11 December 2023 to 18 December 2023.
The applicant has also relied on support available from BailSafe. Evidence was placed before the court that this organisation, funded by the NDIS, could provide the applicant with a 12‑week treatment and education program delivered by video content and daily contact, along with the attachment of a GPS monitoring device. I note, however, that the assessment determining his suitability for this program was carried out by a registered nurse with a post‑graduate qualification. A letter written by Jackson Oppy, the Director of BailSafe Australia, was also produced to the court alongside a psychosocial assessment and court report, dated 3 December 2023. In light of the complexity of the applicant’s mental health and intellectual disability background, with a likely Acquired Brain Injury, I do not propose to act on the proposal put forward by BailSafe. I note the apparent fact that engaging BailSafe would mean that CISP, mentioned below, would not be able to support the applicant.
Oral evidence was given by Mahoud Max Warsame, the applicant’s NDIS coordinator. Mr Warsame confirmed that he will continue to support the applicant for the duration of his NDIS funding, which it appears will be renewed in the future. Evidence was also given by Elizabeth Cowley, the team leader of the CISP program at the Broadmeadows Magistrates’ Court. She opined that CISP was willing to provide the applicant with support alongside the NDIS and Williams House. However, she stated that if BailSafe was to be engaged to provide monitoring services (as proposed by the applicant), CISP would no longer be in a position to support the applicant. No satisfactory explanation was advanced to the court to explain why this would be the case.
Employment
The applicant submits that he was employed full time as a concreter for two weeks prior to his remand, and that this employment will be available again upon his release.
A very brief email from his employer, Ibrahim Ahmad, was included as part of the affidavit in support of this application. It subsequently emerged that, although Mr Ahmad had not personally written the email, he concurred with its sentiment. Mr Ahmad was also called and gave evidence at the hearing. Although his evidence was difficult to comprehend at times, Mr Ahmad confirmed that he knew the applicant was in custody and that he was willing to offer the applicant a job upon his release.
Delay
It is submitted that, if he is not granted bail, the applicant will remain in adult custody for a significant period. Counsel for the applicant noted that, at this point, no briefs have been served, disclosure is yet to occur, no case conference has been scheduled and there are further delays expected in relation to the provision of DNA and forensic analyses.
Unacceptable risk
The applicant’s counsel submitted that the risk of the applicant reoffending was tied largely to his use of illicit drugs and peer influence. It is contended that the risk he poses can be reduced to an acceptable level by the imposition of bail conditions, including that the applicant:
(a) reside at an address in Springvale;
(b) attend the Williams House program for the dates specified;
(c) comply with all directions of CISP;
(d) continue to engage with his NDIS provider;
(e) be fitted with a GPS device (to be provided by BailSafe for the purposes of ensuring the applicant is adhering to his curfew);
(f) not leave his residence between the hours of 10:00pm and 6:00am, unless in the company of his partner, AG, or for medical reasons; and
(g) not leave Victoria.
The respondent’s contentions
The respondent concedes that it is open to the court to find that exceptional circumstances exist. However, it is submitted that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail and failing to surrender into custody in accordance with the conditions of bail.
Unacceptable risk
Committing an offence whilst on bail
The respondent submits the applicant is “extremely likely” to commit further offences whilst on bail. It is noted that the current charges are alleged to have commenced only nine days after the applicant was most recently sentenced in the Dandenong Magistrates’ Court. The respondent also points to the repetitive nature of the applicant’s offending, along with his ongoing drug use, to submit that the court can have little confidence in the prospect that he will cease to offend in the near future. Further, it is contended that because the applicant’s previous sentences have not acted as a deterrent to further offending, it is very unlikely that any bail conditions or support services will mitigate his risk level.
Endangering the safety and welfare of any person
Given the applicant has a demonstrated history of committing burglaries and high‑risk driving, the respondent submits that it is highly likely the applicant will engage in similar behaviour in the future, thus putting innocent members of the community at risk.
Failing to surrender into custody
As to the risk of failing to surrender into custody, the respondent submits that the applicant has a history of failing to comply with previous grants of bail and orders imposed by the court.
There is some force in these submissions, particularly relating to the risk of future offending. Across this year in particular, but also since 2019, the applicant is alleged to have demonstrated a serious lack of self‑control, and a propensity to commit repeat offending. This is of concern, particularly in respect to the safety and welfare of the public.
Analysis and conclusions
I then turn to my conclusions.
As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail. If he succeeds in doing so, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant’s surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
As he is entitled to do, the applicant relies on a combination of factors to support his argument that the exceptional circumstances test is met.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
It is common ground between the parties that the exceptional circumstances test applies to this application. Although not impossible to reach, the threshold is a high one.[7] The applicant must show there are circumstances that are “right out of the ordinary” to justify his release on bail.[8] If satisfied, then the court must consider whether the applicant is an unacceptable risk as defined under the Act. In each instance, the court is obliged to consider the surrounding circumstances. It is noted that the respondent accepts that it is open for the court to find the exceptional circumstances test is met, however, this is still a matter for the court.
[7]Re Villani [2021] VSC 638, [34] (Tinney J).
[8]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
As to the nature of the alleged offending, evaluated in overall context there is no doubt that the allegations are serious. There are a large amount of alleged offences said to have been committed on different occasions, in some instances the value of amounts stolen from residential premises is quite significant, and the applicant was a member of a group of similarly aged young men, where force and implements were used to gain entry to some of the properties. It would be fair to remark that the offending alleged here was not spontaneous but involved a degree of thought and planning. Further, although the methods used were somewhat crude on occasions, there is also the concerning use of some apparently advanced technology. However, there is no evidence to tie that particular aspect to the applicant. A significant amount of the property stolen has not been recovered, leading to a conclusion that the victims of the criminal activity have been affected by the crimes committed against them and their property. As I have already remarked, the type of offending alleged against the applicant here can cause pain and suffering on victims that can last for many years.
As to the related question of delay, I note that the applicant is charged with multiple offences spanning multiple jurisdictions. This is inevitably going to lead to increased delay because multiple courts and prosecuting sections will be involved. It may well be some matters are capable of resolution, and perhaps some will involve a defence of the allegations. It is too early to give an estimate of the overall strengths or weaknesses of the various cases and it may well be there are triable issues in some instances. However, with respect to the strength of the prosecution cases, they do not strike me as cases that can be described as inherently weak. In part, some of these allegations appear to be circumstantial in nature, but that does not necessarily make them weaker.
All this is likely to lead to added delay in the finalisation of all the matters, in circumstances where over a considerable period the applicant, who suffers from a level of intellectual disablement, will be required to appear across multiple court jurisdictions. It is likely he will require some practical support over the course of these proceedings, so as to navigate them effectively. As I remarked during the hearing, it seems to me these cases cry out for a global resolution. Although it might be said that the applicant is the architect of his own misfortune, an argument remains that in circumstances such as the present, prosecuting authorities should have the ability to consolidate all matters under the direction of one decision‑maker so that disposal of such wide‑ranging cases can be managed at the same time. It seems to me this would inevitably lead to a significant saving of resources to the system generally, but particularly, to the courts, professional and lay witnesses, and the prosecuting and defending agencies.
Associated with the issue of an uncertain amount of time before final resolution is the question of a likely penalty. Again, it is too early and difficult to say with any precision as to what may be the eventual sentencing outcome. However, given all his personal factors, including the likely mitigating effects of his lower age, and intellectual disability, unless the applicant receives a grant of bail, the time he spends in custody may outstrip the sentencing outcome. This particular issue is difficult to determine at this stage, but the real possibility of this occurring is of concern.
The applicant’s intellectual disability and vulnerability in adult custody is also a significant factor in my opinion. He is in adult custody for the first time. Having observed him over the course of this application, and being acquainted with the material speaking as to his disablements, I am satisfied the applicant is a vulnerable individual. He has personally addressed the court on two occasions and I have observed him visibly distressed and frustrated when he has not been easily able to follow what is happening in the hearing. As to this vulnerability, the evidence in this application is that he has supports available, including work and a level of NDIS funding. However, I do acknowledge that a number of these supports were in place at the time of his alleged offending.
Turning to the applicant’s family circumstances, as above, the applicant has a partner with whom he has a child of 18 months of age. However, in a new development, his partner gave birth to their second child a week or so ago. I accept this is capable of being regarded as a pro‑social factor of some weight in the assessment of this application.
Taking all matters into consideration and weighing them, I am satisfied that the applicant has shown that the exceptional circumstances test has been satisfied. However, that finding is not the end of the matter. The court must address the question of whether an unacceptable risk exists such that bail should be refused.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
It is often said that bail nearly always involves a risk. In the case of this applicant, the repetitiveness of the allegations, and the somewhat brazen nature of some the alleged offending suggests the risk is likely to be not insignificant. However, in assessing risk, it is not a question of whether it can be eliminated, but whether there can be a reduction to an acceptable level with the imposition of appropriate conditions. The risk here is that the applicant will, if released, commit further offending.
One matter of significance is that on a review of the allegations, most of the applicant’s recent alleged offending was committed in the company of other young men. The argument goes that if he can be cut off from those influences, the risk should reduce. It is suggested the applicant is easily led. Accordingly, I propose a condition that he must disassociate from those types of influences, and a curfew that will ensure he is at work during the daytime, and at home at night, looking after his family. Outside of those times, there should little time left to misbehave.
The other matter in which this court places great trust and emphasis on, is the involvement of Mr Warsame, and CISP, in the applicant’s management. Together, these supports should go some considerable distance in reducing the risk for further trouble. They will have the obligation to report back to the court if bail conditions are breached, or not sufficiently complied with. I have placed significant emphasis on the fact their work is either by way of a public service department, or otherwise funded by government though the NDIS. I will order that my reasons given today will be provided to this service in due course. Furthermore, there will be supervision by this court, the first occasion of which will occur in two weeks from today. At that time, I expect an update from all relevant parties as to the progress made in that period.
Therefore, although it is a close call, I am not satisfied by the respondent that the risk is an unacceptable one, provided conditions are imposed. Having considered all the matters put forward, as well as the surrounding circumstances, I am willing to accept that the degree of risk the applicant poses can be satisfactorily managed with the imposition of strict bail conditions, and that he does not pose an unacceptable risk pursuant to the statutory test.
Conclusion
Accordingly, bail will be granted in the following terms, namely that the applicant:
(a) attend the Melbourne Magistrates’ Court on 13 December 2023 and then surrender himself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody;
(b) reside with AG at her residence in Springvale;
(c) not leave this residence between the hours of 10:00pm and 6:00am, unless in the company of his partner, AG, or for medical reasons;
(d) attend the Williams House Youth Withdrawal Service until completion of this program;
(e) abide by all lawful directions of CISP;
(f) engage with his NDIS provider;
(g) not contact any witnesses for the prosecution, with the exception of the informant(s);
(h) not associate with any co‑accused, directly or indirectly, namely Paul Nikolic, Cameron Shaw, Rickie King, and Matthew Karajanov;
(i) not leave the state of Victoria;
(j) not attend any international point of departure; and
(k) reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on 21 December 2023, and any other further dates that the court appoints during the course of this order.
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