Re Hadarra
[2008] VSC 298
•14 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1723 of 2008
IN THE MATTER OF an Application for Bail
| WALEED HADARRA | Applicant |
| THE QUEEN | Respondent |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2008 | |
DATE OF JUDGMENT: | 14 August 2008 | |
CASE MAY BE CITED AS: | Re Hadarra | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 298 | |
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CRIMINAL LAW – Application for bail – Kidnapping and other charges – Offences allegedly committed whilst on bail – Prior refusal – New facts and circumstances – Loss of opportunity for parole on sentence currently being served.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Shirrefs SC | Solicitor for Public Prosecutions |
| For the Respondent | Mr R Skinner | Markotich Lawyers |
HIS HONOUR:
The applicant was charged on 15 May 2007 with offences arising out of events which occurred on and between 25 January 2007 and 29 January 2007. In substance, what is alleged against the applicant is that he together with two co‑offenders, Jerome Berryman and Dalibor Dobrosavljevic, kidnapped one John Kripintiris and extorted money and other property from him and his parents, Stan Kripintiris and Antonia Kripintiris. It is also alleged that during that period the three offenders carried out a burglary on the home of an ex‑girlfriend of John Kripintiris. The applicant faces a variety of charges arising out of these events including kidnapping both under the Crimes Act and at common law, intentionally threatening serious injury, extortion, obtaining property by deception, unlawful possession of a firearm, burglary, causing criminal damage, as well as other offences. At times, I will refer to these charges as the 2007 matters.
According to an affidavit sworn by the informant, the applicant applied for bail to a magistrate in May 2007 and again in June 2007 and was refused. On 20 July 2007 he applied for bail in this Court. The application was heard by Bongiorno J and it was refused. Bongiorno J published reasons[1] to which I will return.
[1][2007] VSC 274.
A committal hearing was held in April this year and the accused was committed for trial on 11 April 2008. An application for bail was made to the committing magistrate on 17 April 2008 which was refused. The same magistrate granted bail to the co‑accused Berryman on 1 July 2008. This circumstance was relied upon in the affidavit in support of the application sworn by the applicant’s solicitor but his counsel on the hearing before me conceded that the circumstances of the applicant and of Mr Berryman were quite different.
A case conference in relation to the pending trial in the County Court was held on 18 June 2008. The trial was fixed for hearing on 27 July 2009. A further case conference is scheduled for 18 August 2008. There is the possibility of an issue arising as to severance, which may result in further delay.
The applicant is not on remand. He is at present serving a term of imprisonment imposed upon him by Judge Dee in the County Court on 21 December 2007. He had been convicted of offences of aggravated burglary, false imprisonment, blackmail, and assault. He was sentenced to a total effective sentence of two years and three months’ imprisonment with a non‑parole period of 12 months. He had served 228 days of pre‑sentence detention.
The offences for which he was sentenced by Judge Dee concerned events which occurred in the early hours of the morning of 16 August 2005. In substance, what occurred was a home invasion carried out by the applicant and co‑offenders, including his older brother, with the intention of assaulting a particular person. Judge Dee’s sentencing remarks, which were handed up to me on the hearing by senior counsel for the applicant, indicate that on that occasion doors were smashed in, threats were made, persons were detained and forced to go places against their will, and assaults were committed. At times, I will refer to these offences as the 2005 matters.
As indicated, the offences for which the applicant is presently serving a sentence occurred on 16 August 2005. He was bailed on those charges on 14 November 2005. There were a number of conditions on his bail including a residence condition, a curfew, reporting conditions, a condition that he not contact any prosecution witness, and a condition that he not attend any point of international departure. These conditions were varied a number of times.
According to an affidavit sworn by the informant, on 10 February 2007 police spoke to the applicant whilst he was at Tullamarine Airport. The informant suggests that this was a “direct” breach of his bail conditions.
One of the persons in the premises invaded in the early hours of 16 August 2005 was Dalibor Dobrosavljevic. He is one of the co-accused on the 2007 matters which are now pending. The informant says that Mr Dobrosavljevic was a prosecution witness in relation to the 2005 matters. The informant says the accused’s “continued contact” with him also constituted a breach of his bail conditions.
The sentence the applicant is presently undergoing will end on 4 August 2009. He became eligible for parole on that sentence on 6 May 2008. On 30 April 2008 the Adult Parole Board considered the applicant for parole. The matter was deferred to await the result of the pending matters. Given the bail application, the Adult Parole Board was to reconsider the matter on 6 August 2008. At my request the parties informed the Adult Parole Board that my decision on bail would not be made by then and requested that the matter be further deferred.
Pursuant to the provisions of s 4(4) of the Bail Act this is a matter where the Court shall refuse bail unless the accused shows cause why his detention in custody is not justified. I approach the application of s 4(4) in the manner set out by Maxwell P in Re Asmar.[2]
[2][2005] VSC 487 and see Re El-Azar and anor [2007] VSC 487.
Bongiorno J found that the applicant had not shown cause on 20 July 2007 why his detention in custody was not justified. Bongiorno J set out the relevant matters put to him on that occasion and dealt with them as follows.
It was put to him that the applicant’s family situation was a relevant factor. His wife was pregnant at that time. Bongiorno J referred to the fact that the applicant’s wife was living with the applicant’s parents and that she would continue to do so. He found that in the circumstances her condition was not as significant as it might be in other cases.
The issue of delay was relied upon. At that time it was thought that the applicant’s trial would not be until the end of 2008 or “perhaps not until 2009”. Bongiorno J referred to the fact that if he were acquitted on the charges then pending in the County Court (and of which he was subsequently convicted) he could re‑open the question of bail. He also referred to the pending committal on the 2007 matters.
It was put to Bongiorno J that there was little or no violence in the applicant’s criminal history. Bongiorno J observed that there was some history of violence, in that there was a Children’s Court conviction for affray, and he observed that the applicant’s criminal history showed a “serial disregard for the law”.
It was put to Bongiorno J that the applicant had a good bail history. Bongiorno J observed that he did have a conviction for failing to appear on bail. Bongiorno J said that the explanation given to him for that indicated a “carelessness with legal obligations”.
It was put to Bongiorno J that the applicant had strong ties to the jurisdiction. Bongiorno J observed that the ties he had were not out of the ordinary.
It was put that the Crown case in relation to the 2007 matters was weak and that there were inconsistencies in the statements to police which had been given by Mr John Kripintiris. Bongiorno J acknowledged the inconsistencies but said there was also other evidence which linked the applicant to the relevant events.
Before turning to the matters relied upon by counsel for the applicant before me it is necessary to say something about what occurred at the committal.
The principal alleged victim of the offences with which the applicant is now charged is Mr John Kripintiris. He was cross-examined at the committal. That cross‑examination is an important part of the submission now made on behalf of the applicant in support of bail. It is necessary to set out the aspects of Mr Kripintiris’ cross‑examination which formed the basis of this submission.
Mr Kripintiris admitted that he was a liar (T25). He admitted that he had lied to the police in the first statement he made about the relevant matters (T25). He agreed that prior to the events in January 2007 he had been a drug dealer (T27 and 30). I interpolate that according to the “Outline of the Crown Case for the Case Conference”, Mr Kripintiris was a drug trafficker between January 2005 and October 2006 and that he met the applicant in the course of those drug trafficking activities. According to that Outline and according to the informant’s affidavit, Mr Kripintiris supplied the applicant with drugs for the purpose of re‑sale of those drugs by the applicant.
In his cross‑examination at the committal Mr Kripintiris agreed that he had entered into an arrangement with the Crown and that he had since received a suspended sentence in relation to other matters. One of the factors relied upon in his plea had been the co‑operation he was giving police in relation to the charges against the applicant. (T28, Exhibit 1 and T31).
In his cross‑examination at the committal Mr Kripintiris agreed that during the course of his alleged kidnapping and false imprisonment he took drugs with his alleged kidnappers (T43 and 53), arranged for two prostitutes to attend a motel where he was being held and had sex with one of them in a separate room (although whilst still visible) (T34), dealt with outsiders including hotel staff whilst being held without attempting to alert them to his situation (T59), went alone to collect ransom money from his father and another relative (T61), and assisted his kidnappers in a burglary carried out on his ex‑girlfriend’s home where it was believed marijuana was being grown (T68, and see also the Outline of the Crown Case for the Case Conference). He said he did all this under duress.
Mr Kripintiris also agreed in cross‑examination that he had previously borrowed substantial sums of money from his father which he has not repaid (T38-40).
Senior counsel for the applicant also handed up in the course of the application, and relied upon, transcripts of telephone intercepts of phone calls from Mr John Kripintiris to his father and to a police officer on 27 January 2007, during the course of the alleged abduction. Mr Kripintiris appears in the transcript to be both aggressive and abusive and he persistently maintains that there is no problem.
The applicant was born on 10 April 1983. He is now 24 years of age. He is the fourth of six children. Psychological reports relied upon in this application do not suggest family difficulties whilst he was growing up. The psychological reports, to which I will turn in a moment, do suggest that he had significant learning difficulties at school and that he never learned to read and write. He has been a professional kick‑boxer and boxer. He has had short‑term unskilled employment.
The applicant is married. He has a young son who was born whilst he was in custody.
Before me the applicant relied upon two reports from a clinical forensic psychologist, Mr Patrick Newton.
The first report is dated 16 December 2007. It was prepared in anticipation of the sentencing hearing before Judge Dee. Mr Newton saw the applicant on two occasions in December 2007.
In December 2007 Mr Newton tested the applicant’s IQ and assessed his full-scale IQ at 53. This represented, in Mr Newton’s opinion, “severe intellectual impairment”. Mr Newton observed that the applicant is essentially illiterate. His diagnosis was “moderate mental retardation”. He expressed the opinion that rehabilitative services would be most effective if the focus included “significant structure within the context of close oversight”. In that context he recommended that a sentence might include a “relatively lengthy period of supervision in the community”.
Mr Newton’s second report of 11 April 2008 was prepared after a further consultation on that day. It was prepared for the bail hearing at the end of the committal. This report confirms the prior findings and also observes that the applicant is suffering from anxiety as a result of his incarceration. Mr Newton recommends intervention by Disability Client Services as well as personal counselling. Mr Newton is prepared to undertake the personal counselling and has explained to the applicant that he will only treat him on the basis that any non‑compliance with bail or other conditions will be reported to the informant.
The informant’s affidavit, which is an exhibit to an affidavit sworn by a solicitor at the Office of Public Prosecutions, opposes bail and refers to a number of matters to which I have already referred and to which I will return. In addition to those matters, the informant’s affidavit says that the applicant’s wife, Nese Adal, personally booked one of the hotel rooms at which Mr Kripintiris was allegedly held and that another apartment at which he was allegedly held was booked through her e‑mail account. The informant refers to the criminal convictions and associations of members of the applicant’s immediate family and says that at the time of the offences the applicant had a drug problem and was using “ice” twice daily.
If granted bail the applicant proposes to live with his wife, Nese Adal, his son, and Nese Adal’s mother, Julie Aziz, in Ms Aziz’s home in Templestowe. It was submitted on behalf of the applicant that this was preferable to living with his own parents, where he was living at the time of the alleged offences, given the matters that the informant has raised.
The applicant is able to provide a surety, being his cousin, Khadije Hadarra, who offers as security a house property to support a sum of $75,000.
The applicant acknowledges that s 4(2A) of the Act requires that a condition of any bail be that he cannot be released unless parole is granted.
The applicant is prepared to submit to any of the usual conditions including a prohibition upon contact with Crown witnesses or the co‑offenders, curfew and reporting conditions, and a condition prohibiting attendance at any point of international departure. He agrees to a condition requiring treatment by Mr Newton.
The affidavit in opposition to bail produced the applicant’s LEAP report. Material concerning his prior convictions was also contained in the sentencing remarks of Judge Dee and in the judgment of Bongiorno J. It is necessary to set out his history of prior convictions.
In February 2001 the applicant was convicted before the Children’s Court of offences of affray and damage to a motor car. On 9 July 2001 he was fined without conviction in the Children’s Court on charges of unlicensed driving and driving an unregistered vehicle.
On 17 January 2002 the applicant was placed on a bond at the Sunshine Magistrates’ Court on charges of theft of a motor vehicle and making a false document.
On 5 March 2003 at the Melbourne Magistrates’ Court the applicant was dealt with on three charges of obtaining property by deception. He was placed on a Community Based Order for 12 months. He did not comply with that order and he was dealt with for breach on 18 February 2004.
On 11 March 2003, according to the LEAP report, the applicant was dealt with at the Sunshine Magistrates’ Court on a charge of attempted theft. The LEAP report seems to me to be ambiguous as to how that matter was dealt with as the entry for the appearance that day suggests he was dealt with without conviction but a subsequent entry on 28 March 2006 suggests he was then dealt with for failure to comply with a Community Based Order in relation to that charge. For present purposes, given the ambiguity, I will ignore that matter.
On 29 August 2003, whilst on the Community Based Order imposed on 5 March 2003, the applicant was dealt with at the Sunshine Magistrates’ Court on charges of driving a motorcycle exceeding 260cc capacity and driving without L-plates. He was fined and his licences were suspended for two months.[3]
[3]In relation to this fine and the subsequent fines the LEAP records contain entries indicating they were subsequently varied so as to provide for community service in default of payment.
On 5 May 2004 the applicant was dealt with on a charge of driving while suspended at the Broadmeadows Magistrates’ Court, and on the next day, 6 May 2004, he was dealt with on charges of driving while suspended and driving without L‑plates at the Sunshine Magistrates’ Court. On these charges he was fined and his licence was suspended for three months at the Broadmeadows Magistrates’ Court and for six months at the Sunshine Magistrates’ Court.
On 13 July 2004 the applicant was convicted of further offences at the Sunshine Magistrates’ Court. At this point he had previously been the subject of a Community Based Order with which he had failed to comply and been breached, he had been given a bond and had also been dealt with without conviction on other occasions, and he had twice previously been convicted of driving while suspended. He was convicted of offences of driving while suspended, speeding, driving an unregistered vehicle and failing to signal. He was fined and his licences were cancelled. He was disqualified from obtaining a licence for nine months.
On 15 September 2004 the applicant was convicted at the Sunshine Magistrates’ Court of three counts of driving while suspended, one count of fraudulent use of registration and a variety of other driving offences including careless driving. It was on this occasion that he was also convicted of an offence of failing to answer bail. He was sentenced to 42 days’ imprisonment which sentence was wholly suspended. His driving licence was suspended for 12 months and he was also fined. The term of imprisonment was suspended for a period of 12 months.
On 16 August 2005, whilst the period of suspension of the 42 day term of imprisonment was still running, the applicant committed the offences for which he was sentenced in the County Court on 21 December 2007.
On 30 August 2005 the applicant was convicted at the Sunshine Magistrates’ Court of driving whilst disqualified. He was also dealt with that day for breach of the suspended sentence. He was sentenced to 42 days’ imprisonment on the count of driving whilst disqualified. It was ordered that that sentence be served concurrently with the 42 days’ suspended sentence. Thus, a total term of imprisonment of 42 days was imposed. Appeals in relation to these matters were abandoned on 22 September 2005.
On 14 November 2005 the applicant was bailed on the 2005 matters.
On 27 February 2006 the applicant was convicted of two counts of driving whilst disqualified at the Melbourne Magistrates’ Court. He was sentenced to a term of three months’ imprisonment on each count to be served concurrently. These terms were wholly suspended for 18 months.
During the period of that suspended sentence, and whilst on bail for the 2005 matters, on and between 25 and 29 January 2007 the offences in relation to which bail is now sought are alleged to have occurred.
The incident where the police spoke to the applicant at Tullamarine Airport occurred on 10 February 2007.
The applicant was charged with the offences in relation to the 2007 matters on 15 May 2007.
On behalf of the applicant the following submissions were made by his counsel, Mr Shirrefs SC.
Mr Shirrefs SC said there were five factors as a result of which the conclusion should be drawn that the accused had shown cause why his detention in jail was not justified.
The first was the material now available from Mr Newton revealing that Mr Hadarra has significantly impaired intellectual function. It was submitted that this is in itself an important factor, but it was also submitted that given his impaired intellectual function preparation of the case whilst he is in custody is extremely difficult because he is illiterate.
The second matter emphasised by Mr Shirrefs was the effect of a refusal of bail on the sentence he is currently serving. Mr Hadarra is eligible for parole now in relation to the sentence on the 2005 matters. If he is not granted bail, and if the trial date in July 2009 remains, he will be effectively denied the possibility of parole in relation to the sentence on the 2005 matters and will have to serve the entire head sentence imposed on those matters. Mr Shirrefs submitted that this was a very unusual situation.
The third matter relied upon by Mr Shirrefs is what he contends to be the weakness of the Crown case. I have referred to the aspects of the Crown case revealed in cross-examination upon which Mr Shirrefs relied.
The fourth matter relied upon is the delay until trial.
The final matter relied upon is Mr Hadarra’s strong family ties, particularly to his wife and to his young son. The arrangements under which Mr Hadarra will be able to live with his mother in law and under which treatment will be available from Mr Newton were also relied upon.
Mr Shirrefs submitted that there was no legal requirement to establish new facts and circumstances, but in any event he submitted that there were new facts and circumstances since the decision of Bongiorno J. In this respect he relied upon the psychological material, the sentence in December 2007, the matters revealed in the committal, and the fixing of the trial date in July 2009.
Counsel on behalf of the Crown, Mr Skinner, submitted that Mr Hadarra had failed to show cause why his detention in custody was not justified because there remained an unacceptable risk that if released on bail he would commit further offences and interfere with witnesses. He submitted that it was necessary to demonstrate that there were new facts and circumstances since Bongiorno J’s decision in July 2007. In that respect Mr Skinner submitted that whilst there were some new facts, those new facts did not mean that he had now shown cause why his detention in custody was not justified.
Mr Skinner accepted that the credibility of Mr John Kripintiris was important to the Crown case and that the Crown would have to contend with the fact that his initial statement was incorrect in some respects. It was submitted that the transcript of the cross-examination at the committal reveals him to be a witness who is credible, and that his conduct including his early dishonesty is explicable by fear. Counsel for the Crown also submitted that there was other evidence linking Mr Hadarra to the events in question including the fact that a motel room was booked by his wife, that another room was booked using his wife’s email address, that a BMW vehicle was transferred by Mr John Kripintiris to the applicant and that that BMW vehicle was in the applicant’s possession when he was apprehended in May 2007.
Mr Skinner relied upon the fact that the applicant was at Tullamarine Airport on 10 February 2007 and also referred to threats allegedly made by text message to Mr John Kripintiris from the applicant. Mr Skinner submitted that the Crown case was not weak, that the offences were extremely serious, and that if Mr Hadarra was convicted he was likely to face a substantial prison term.
Mr Skinner suggested that Mr Hadarra’s mental impairment militates against a grant of bail and that in any event his history shows that he can function, can work, can conduct a business, and can drive a car.
Mr Skinner relied upon the asserted breaches of bail conditions referred to by the informant and submitted there was a basis for concern as to the influence of Mr Hadarra’s immediate family.
In reply, amongst other submissions, Mr Shirrefs submitted that the attendance at the Tullamarine Airport was “equivocal” as that is a domestic airport as well as an international one and that Mr Hadarra’s association with Mr Dobrosavljevic has to be seen in the context that he was a work colleague. Mr Shirrefs submitted that if there had been any genuine concern about those matters, proceedings would have been taken for breach.
Mr Shirrefs concluded by submitted that the “real issue” was the “dead time” which Mr Hadarra would serve between now and the trial, a period during which he is eligible for parole, but which will not count as pre-sentence detention should he be convicted of the 2007 matters.
I asked whether Mr Hadarra had completed any programs whilst in jail and was told that he had not as he was unsuitable because he could not read or write.
In my view it is clear that there are new facts and circumstances in the relevant sense which have arisen since Bongiorno J’s decision. This is not an appropriate occasion to address the issue of whether there is what can properly be described as a legal requirement to show new facts and circumstances.[4]
[4]See Mokbel v DPP [2002] VSC 127, at [10] and [39].
The new facts and circumstances which have arisen since the decision of Bongiorno J are the matters relied upon by Mr Sherrifs. The issue now is whether, given those new facts and circumstances, the applicant has shown cause why his detention in custody is not justified.
Leaving to one side for the moment the issue concerning parole, I do not think that the applicant has shown cause in the relevant sense because he has now been revealed to be a person with impaired intellectual function, because of the matters which emerged during cross-examination at the committal, because of the date fixed for trial, or because of his family arrangements and family ties.
I earlier set out the applicant’s previous criminal history in detail. I did that because in my view it reveals the applicant to be a person who has paid no regard whatsoever to the requirements of the law. As Bongiorno J observed, he has demonstrated a serial disregard for the law. Perhaps of more importance is the fact that he has disregarded the requirements imposed upon him under a community based order, and under suspended terms of imprisonment. He has also previously committed an offence of failing to answer his bail.
On the material before me, the applicant had some involvement in the relevant events in January 2007 even assuming the most adverse view is taken of Mr John Kripintiris. That involvement occurred whilst he was under a suspended sentence of imprisonment and whilst he was on bail for the 2005 matters. The character of the offences committed by the applicant in the 2005 matters and the character of the offences with which he is now charged as a result of the 2007 matters are of considerable significance.
My conclusion is that there is a significant risk that the applicant would commit offences whilst on bail, would endanger the safety or welfare of members of the public, and would interfere with witnesses or otherwise obstruct the course of justice.
The matter which has caused me concern is his position in relation to parole on the 2005 matters. It is unsatisfactory that, given the present trial date on the 2007 matters, he will lose the possibility of parole on the 2005 matters. Judge Dee would not have anticipated that outcome, although in accordance with the law he would have sentenced on the basis that Mr Hadarra might be required to spend every day of the head sentence in prison.[5]
[5]R v Kasulaitis [1994] 4 VR 224, 232.
Section 4(4) of the Bail Act provides that I shall refuse bail in relation to this applicant unless he can show cause why his detention in custody is not justified. There is a significant risk that he will commit offences whilst on bail, endanger the safety or welfare of the public, and interfere with witnesses or otherwise obstruct the course of justice. Those risks are in my view unacceptable notwithstanding the consequence a refusal of bail will have in relation to his sentence on the 2005 matters. That being the case the applicant has not shown cause why his detention is not justified and the Act requires me to refuse bail.
The unsatisfactory consequence that the applicant will be denied the opportunity for parole in relation to the 2005 matters will have to be addressed in some other manner, perhaps by making submissions for an earlier trial date.
The application is refused.
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