Re Hassan - [2021] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0016

IN THE MATTER of the Bail Act 1977

-and-

IN THE MATTER of an Application for Bail by ILIAS HASSAN

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2021
DATE OF JUDGMENT:	19 February 2021
CASE MAY BE CITED AS:	Re Hassan
MEDIUM NEUTRAL CITATION:	[2021] VSC 66

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CRIMINAL LAW – Application for bail – Charges of criminal damage, recklessly causing injury, unlawful assault, kidnapping, false imprisonment, reckless conduct endangering serious injury, intentionally causing injury and theft of motor vehicle – Allegations of family violence offending – Availability of residential drug rehabilitation – Whether exceptional circumstances exist – Whether applicant poses unacceptable risk – Whether applicant would commit family violence – Bail granted on strict conditions – Bail Act 1977, ss 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Hutton	Office of Public Prosecutions
For the Accused	Mr C Brydon	Chester Metcalfe and Co.

HER HONOUR:

Ilias Hassan (applicant) seeks a grant of bail in respect of ten charges allegedly committed in three separate incidents between 28 September 2019 and 23 November 2019. Two of those incidents involve the applicant’s ex-partner, JA. The applicant is charged with:

· Criminal damage;

· Recklessly causing injury (two charges);

· Unlawful assault (two charges);

· Theft of a motor vehicle;

· Kidnapping;

· False imprisonment;

· Reckless conduct endangering serious injury;

· Intentionally causing injury; and

· Learner driver driving without an experienced driver.

The applicant has been in custody since his arrest on 21 December 2019. However three months of this custodial period represents a sentence imposed in a separate matter.

He has previously been refused bail on two occasions in the Magistrates’ Court, on 15 April 2020 and 26 June 2020. On each occasion the magistrate held that the applicant had demonstrated exceptional circumstances that justified the grant of bail but found that he posed an unacceptable risk of the behaviour nominated in s 4E(1)(a) of the Bail Act 1977 (Act). On 7 August 2020 the applicant withdrew an application for bail in this Court after the presiding judge expressed concern as to its evidential basis.

This application was filed on 3 February 2021.

The charges are next listed for committal at the Melbourne Magistrates’ Court on 1 March 2021.

The alleged offending

The relationship between the applicant and JA was of some three years duration before they separated in September 2019. JA alleges that the relationship was marked by physical violence and other controlling, aggressive and jealous behaviour by the applicant.

Incident one – 28 September 2019

It is alleged that the applicant observed JA send a text message to her sister about their relationship (that is, the relationship between the applicant and JA). The applicant became angry and smashed JA’s mobile telephone. In response, JA pushed the applicant. He then struck her to the back of the head…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Hassan

Details

AGLC: Re Hassan [2021] VSC 66
Case: [2021] VSC 66
Decision Date: 19 February 2021

CaseChat Overview and Summary

The applicant, Hassan, applied for bail in the context of criminal charges including criminal damage, recklessly causing injury, unlawful assault, kidnapping, false imprisonment, reckless conduct endangering serious injury, intentionally causing injury and theft of a motor vehicle. These charges arose from an incident involving allegations of family violence. The application was heard in the Magistrates Court of Victoria. The central legal issues revolved around whether exceptional circumstances existed to warrant bail, whether Hassan posed an unacceptable risk to the community, and whether there was a likelihood he would commit family violence if released. The court had to weigh the severity of the charges against the potential benefits of granting bail, including the availability of a residential drug rehabilitation program.

The court considered the nature and seriousness of the charges, which indicated a propensity for violence and criminal behaviour. However, it also took into account mitigating factors such as the applicant’s cooperation with authorities, his willingness to participate in a rehabilitation program, and the support he could expect from his family. The court emphasised the importance of preventing family violence and the potential impact on the victim if the applicant were to be released. Ultimately, the court concluded that while the charges were grave, the strict conditions of bail, including residence at a specified location and adherence to a rehabilitation program, sufficiently mitigated the risk to the community and the likelihood of reoffending.

Given the findings, the court granted bail on strict conditions. These conditions included a requirement for the applicant to reside at a specified address, to adhere to a curfew, to abstain from alcohol and drugs, and to participate in a residential drug rehabilitation program. The court ordered that Hassan be electronically monitored and that he have no contact with the complainant. This decision was made under the Bail Act 1977, taking into account sections 1B, 3AAA, 4, 4A, 4AA, 4D, 4E, and 5AAA, which govern the assessment of bail applications and the imposition of bail conditions.

Orders