Re Kele
[2018] VSC 159
•10 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0062
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by PAULO KELE
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2018 |
DATE OF JUDGMENT: | 10 April 2018 |
CASE MAY BE CITED AS: | Re Kele |
MEDIUM NEUTRAL CITATION: | [2018] VSC 159 |
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CRIMINAL LAW – Application for bail – Charges relating to family violence and home invasion – Offence involving use of an offensive weapon – Contravention of a family violence intervention order – Show cause position – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Lenthall | Victoria Legal Aid |
| For the Respondent | Mr B Nibbs | Mr John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 15 February 2018, Paulo Kele (‘the applicant’) was charged with a series of offences alleged to have occurred during the course of two separate incidents on 14 February 2018. The first was a family violence incident in relation to the applicant’s then partner, Ms Kaya Rongo. The second incident was an armed home invasion and robbery in which the primary complainant, Mr Prabhath Ponnamaneni, was a person not previously associated with the applicant.
On 22 March 2018, the applicant indicated he would plead guilty to two of the family violence charges, with the remaining three charges withdrawn. As a result, the applicant currently faces the following seven charges:
The family violence incident
· Contravention of a family violence intervention order, intending to cause harm or fear; and
· Unlawful assault.
The home invasion incident
· Home invasion;
· Aggravated burglary;
· Theft (2 counts); and
· Unlawful assault.
Procedural history
The applicant has been in custody since his arrest on 15 February 2018 and is currently remanded at the Ravenhall Correctional Centre. The two charges resulting from the family violence incident are currently listed for a hearing on 19 April 2018.
The remaining five charges arising from the alleged home invasion are listed before the Melbourne Magistrates’ Court on 4 May 2018, for a committal case conference.
The applicant was refused bail in respect of the present charges in the Melbourne Magistrates’ Court on 22 February 2018.
By application dated 15 March 2018, the applicant applies to this Court for an order granting his release on bail.
The alleged offending
The family violence incident
At the time of the alleged offending, the applicant and Ms Rongo had been in an intimate relationship for approximately four years while living together in Sunshine West. They have a 22-month-old son.
The prosecution case is that at approximately 10.00am on 14 February 2018, the applicant had an argument with Ms Rongo about not receiving his Centrelink payment, accusing her of changing his account details and cheating on him. The argument became violent when the applicant grabbed Ms Rongo by her upper arms, digging his fingers into her arms, causing her pain and bruising. It is alleged the applicant also closed an open window to prevent her from calling for help.
The applicant then pushed Ms Rongo to the ground, pinning her down and hitting her to the face, head and hands. After unsuccessfully trying to hide in a wardrobe, Ms Rongo attempted to leave with her son but was stopped by the applicant, who also took her passport. Ms Rongo subsequently managed to leave the house and call for help with a pay phone. She was approached by the applicant, who had their son in a pram. The applicant tried to prevent her from making calls and told her to come home, to which she refused. Eventually, the applicant left, leaving Ms Rongo with their son.
Ms Rongo attended the Prahran Police Station that afternoon and was observed by police officers to have bruising to her biceps, and redness to one side of her face.
The home invasion incident
The prosecution case is that the applicant was one of three offenders who, at around 11.30pm on 14 February 2018, gained entry to a residential premises in Sunshine, where the victim, Mr Ponnamaneni, and four flatmates were then living. At the time of entry, Mr Ponnamaneni was asleep on a couch downstairs, while his four flatmates were upstairs. The victim reports being awoken by two of the offenders, who held knives to his throat and demanded his mobile telephone. The third offender seated himself next to the victim and demanded that he unlock his phone. The other two offenders then rummaged through the home’s entertainment unit, stealing three hard drives and a set of keys.
The group then left the house and stole the victim’s vehicle, where he had left his iPhone and iPad. The vehicle collided with a section of fence as it was driven away from the address, causing the fence to fall over. A few minutes later, the vehicle collided with a lamp post and the occupants were seen decamping from the scene. At 11.42pm, police attended the scene of the car crash.
Police located the applicant a short distance from the vehicle by tracking the victim’s iPhone. A search of the backpack in the applicant’s possession, which was found to belong to the victim, located an iPhone, an iPad, the victim’s passport, and a number of other documents. A search of the ground nearby located a Samsung mobile telephone, a ZTE mobile telephone, $136.65 in foreign currency, a set of keys and a wallet containing cards in the name of one of Mr Ponnamaneni’s flatmates. The applicant was heavily intoxicated.
The other two offenders remain unidentified.
The applicant was interviewed in the late morning of 15 February 2018 as he was deemed unfit for interview shortly after his arrest, with police leaving him to sober up overnight.
As to the family violence incident, the applicant admitted to police that he had slapped Ms Rongo after she had provoked him. He also stated he had slapped her and shaken her in order to ‘knock some sense into her’ after she had threatened to kill herself.
As to the home invasion incident, the applicant stated that he had been drinking alcohol alone behind the Sunshine Library from about 1.00pm that afternoon. He said he had befriended some people and gotten into their vehicle. The next thing he could remember was waking up when the vehicle crashed. The applicant said he believed he must have taken the wrong backpack from the car when it crashed and, as a result, ended up with Mr Ponnamaneni’s belongings. The applicant claimed to have a backpack with his clothes and other belongings in it while drinking behind the library. When put to him that the car crash occurred only eight minutes after the alleged home invasion, the applicant conceded that ‘he must have been involved in something’, but could not remember the event due to his intoxication.
The applicant’s circumstances
The applicant is 21 years of age. He has a prior criminal history in South Australia which includes the following relevant prior convictions:
·two failures to comply with bail agreements, committed on 14 and 21 May 2016;
·dishonestly taking property without consent, committed on 7 May 2016;
·disorderly behaviour, resisting police and refusing to provide name and address, committed on 16 February 2016; and
·resisting police, hindering police and refusing to provide his name and address, committed on 21 November 2015.
The period in remand from his arrest on 15 February 2018 has been the applicant’s first time in custody.
The applicant is a New Zealand citizen, born in Tokelau. He moved to Australia at the age of six with his family. At the time of the alleged offending, he had been in Victoria for about six months. He and Ms Rongo were residing in a unit in Sunshine through the assistance of either the Melbourne City Mission or the Salvation Army Social Housing Service. It appears that the applicant was not employed at the time of the alleged offending and was receiving welfare benefits.
The applicant disclosed possible alcohol consumption issues to a Court Integrated Services Program (‘CISP’) case manager, Ms Walton. At the time of his failed bail application on 22 February 2018, a CISP assessment report dated 21 February 2018 had been prepared and submitted with that application in the Magistrates’ Court. That report revealed the applicant’s history in some detail. Additionally, Ms Rongo, in her statement to police, mentioned that the applicant smokes marijuana.
On 4 December 2017, a family violence intervention order was made at the Sunshine Magistrate Court with limited conditions, which allowed for the continued cohabitation of the applicant and Ms Rongo. A further intervention order was made on 22 February 2018, prohibiting the applicant from contacting Ms Rongo or their son.
The applicable law
Having been charged with an indictable offence involving the threatened use of an offensive weapon, the applicant is required to show cause why his detention in custody is not justified, pursuant to s 4(4)(c) of the Bail Act 1977 (‘the Act’).
Furthermore, the applicant is in a show cause position pursuant to the following sections of the Act:
·Section 4(4)(ba)(ii) — The applicant is charged with contravening a family violence intervention order under s 123A of the Family Violence Protection Act 2008 and in the course of committing those offences it is alleged he used violence. The Act further requires that the Court needs to be satisfied that the applicant has, on a separate occasion, used or threatened to use violence against Ms Rongo, whether or not the applicant has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.
·Section 4(4)(bc) — The applicant is charged with offences of aggravated burglary and home invasion.
The above stated, the applicant is in a show cause position in respect of two sets of discrete offending.
The applicant’s contentions
In an affidavit dated 15 March 2018, the applicant’s solicitor supported a grant of bail for the applicant and submitted that the following matters were established by the evidence and showed cause why he should be granted bail.
Strength of the prosecution case
With respect to the home invasion matter, it is submitted that the only evidence linking the applicant to the criminal conduct is the applicant’s possession of some of the victim’s items when he was arrested.
In his sworn statement to police, Mr Ponnamaneni described the offenders in the home invasion as Asian and African in appearance. However, the applicant is from Tokelau. It is submitted that the evidence of Mr Ponnamaneni regarding the offenders is non-specific.
There is no evidence linking the applicant to any other unidentified offenders, nor any evidence that he was party to an agreement to enter the home and steal from it.
Following the alleged home invasion, police seized a number of items, including clothing, hard drives and a kitchen knife. The stolen vehicle was towed away to be forensically examined, however at the time of this application, there has not been any indication of what evidence had been found from examinations carried out by the Victoria Forensic Services Laboratory. Further, the other materials for examination are on a high priority listing, but there is no evidence that the results will be available by 4 May 2018. The delay for results may be as long as six months.
Delay
The applicant was arrested on 14 February 2018 and has been in custody since that time. The armed robbery charges and aggravated burglary charges are next to be heard on 4 May 2018, and it is expected that they will be contested by the applicant. That being the case, based on current listing timeframes at the Magistrates’ Court, a contested committal hearing could be expected to be listed three to four months after that time. Further, information published by the County Court indicates that a matter will go to trial approximately seven months after the initial directions hearing. Based on those assumptions and calculations, it is submitted that the applicant’s trial might occur in early 2019, by which time he would have spent one year on remand.
The applicant’s relative youth
The applicant is currently 21 years old, turning 22 in April.
Availability of CISP support to help address substance issues
On 21 February 2018, for the purposes of his bail application to the Magistrates’ Court, the applicant was assessed as suitable for intensive case management by CISP. Further, the applicant indicated a willingness to engage in the Men’s Behavioural Change program. However, the applicant indicated that he did not feel that alcohol addiction treatment would help him. His CISP support proposal included participation in the Youth Support and Advocacy Service (‘YSAS’) and appointments with Launch Housing Services for assistance in finding accommodation.
Criminal history and character
The applicant’s criminal record is limited and he has not previously been in custody.
Availability of conditions to minimise risks associated with a release on bail
The applicant proposes the following conditions if he is released on bail:
(a) to reside as directed by CISP or Launch Housing;
(b) daily reporting to police;
(c) a curfew between the hours of 9.00pm and 6.00am;
(d) to present at the door of his residence at the request of Victoria Police during curfew hours;
(e) to obey the lawful directions of CISP; and
(f) any other condition that the Court deems appropriate.
The prosecution’s contentions
The prosecution opposes the application for bail on the basis that the applicant has not shown cause, and that there is an unacceptable risk that if released on bail he would —
·fail to answer bail;
·commit further offences whilst on bail;
·endanger the safety and welfare of members of the public, specifically Ms Rongo and their son.
The prosecution relies on the following points to support its argument that bail should be refused.
The applicant’s drug use, alcohol use and unemployment
According to Ms Rongo’s statement and the CISP report dated 21 February 2018, the applicant has drug and alcohol issues that are currently untreated. The prosecution submits that he will continue to offend in order to support these habits, as he has no job to fund them.
Lack of ties to the community
The applicant is not an Australian citizen or a permanent resident. He admits in his interview to knowing no-one in Victoria other than his girlfriend and son, and therefore has nothing tying him to the community.
Lack of stable accommodation
The applicant has no fixed address. It is unclear what arrangements would be put in place for the applicant’s accommodation if he is granted bail. The CISP report dated 21 February 2018 said that his first night would be at the Coburg Motor Inn. The applicant would not be able to stay with his ex-partner, Ms Rongo, or his son, due to the intervention order of the Melbourne Magistrates’ Court made on 22 February 2018 prohibiting him from contacting them.
Apprehension of fear by the complainants
The prosecution argues that there is evidence that Ms Rongo fears for her safety. The applicant contravened the family violence intervention order that was ordered in December 2017. Furthermore, the social worker who assisted Ms Rongo after the incident fears for her safety as well.
Relevant prior convictions for failing to answer bail
As stated earlier, the applicant has twice failed to answer bail in South Australia.
Seriousness of the alleged offending and the risk of such offending to the safety and wellbeing of the public
The charges relating to the alleged home invasion and aggravated burglary are serious. The same block of units were targeted by offenders on 27 February 2018, using the exact same modus operandi. The police believe the same offenders are involved in both offending.
Discussion
Counsel for the applicant relied on a combination of factors to show cause why the applicant’s detention in custody was not justified, and to ameliorate any risks that his release on bail might pose to an acceptable level.
The applicant relied on the fact that he was 21 years old, and youthful, currently being held in an adult custodial setting. It was submitted that as a young person, it was undesirable that he should be held in custody with much older offenders. It was said this factor weighed heavily in favour of a grant of bail.
Next, the applicant relied on his relative lack of criminal history, comprised entirely of offending outside of Victoria, and then only involving four prior court appearances. On three of those occasions, he was fined by the court, and on the other occasion received a bond. Predominantly, it was argued that the offending related essentially to disorderly conduct, resisting police, and similar types of matters. It was pointed out that on two prior occasions when he had failed to fulfil his bail obligations this did not involve a failure to attend court on bail, but rather, failing to sign in at a police station as a condition of his release.
It was conceded that some material that was before the Court involved a theme of alleged family violence between the applicant and his partner over the last few years. It was argued that those occasions tended to involve arguments that escalated, with police generally taking no further action.
The applicant pointed out that, having been arrested on 15 February 2018, by the time of this application, he had been in custody for 50 days as a young person, and has had the opportunity to reflect on this custodial experience. It was argued on his behalf that for someone who was 21 years of age, every day he has spent on remand is a day of being held in a setting devoid of prosocial contacts and supports, and devoid of any rehabilitation factors. It was argued that by 19 April when the applicant will appear in the Magistrates’ Court on the family violence related matters, he would have been in custody for about two months.
It was conceded that the allegations of family violence concerning the events of 14 February 2018 constituted a very unsavoury incident, and constituted violent conduct. However, it was pointed out that, given the age and limited criminal background of the applicant, there was a strong possibility that upon his plea of guilty in the Magistrates’ Court to a charge of assault and breaching a family violence intervention order, the matter would not likely be dealt with by way of a custodial sentence. It was argued that the likely outcome was either a fine in combination with an adjourned undertaking attaching a men’s behaviour change program, or at the highest a community corrections order with a similar condition.
It was not submitted that the Crown case in respect of the home invasion matter should be regarded as a weak Crown case, but rather a circumstantial case comprising no direct evidence of the applicant being one of the people to enter the victim’s home, or personally carry out the violent offending. The state of the evidence means that the home invasion matter would inevitably be contested as a trial, and would be necessarily dealt with in the County Court of Victoria. Counsel addressed submissions in respect of the strength of the Crown case on the home invasion matters, arguing that there was not sufficient evidence to establish that the applicant was one of the three people that offended inside the victim’s premises. Further, the applicant argued that there was no evidence suggesting that he was part of a joint criminal enterprise, in circumstances where he may have been a party to the events inside the house, but never have actually entered the house.
Combined with the applicant’s contention that the Crown case was neither weak nor strong was the prospect that there may be a delay of up to 12 months before the matter reaches final resolution in the County Court. The upshot would be that a 21-year-old youthful person, experiencing his first time in custody, would be waiting on remand for that period in circumstances where he may not ultimately be found guilty of the alleged offences.
As the case presently stands, in my opinion it appears to be a circumstantial case, and not a particularly strong one. It is to be noted that DNA and fingerprint testing is not yet complete, and should the applicant’s DNA or fingerprints be found to have been inside the victim’s house, then a different complexion may be put on the applicant’s situation. In those circumstances there would be stronger inference of his presence in the house, and personal involvement in the violent conduct that occurred. However, at this stage it is simply unclear as to what the forensic testing might ultimately reveal about the presence of the applicant’s DNA or fingerprints within the victim’s house.
For the applicant it was pointed out there was a favourable CISP report, which recommended the applicant for case management. It was argued that there were two elements to the CISP report that should give the Court some comfort, namely, the element of supervision whilst on bail with regular reporting and appointments, and the prospect that CISP could also assist the applicant in obtaining employment and engagement with men’s behaviour change programs. It was acknowledged that the applicant’s accommodation prospects were far from ideal, however, both CISP and a relevant housing worker would be working towards providing him with long-term, or medium-term to long-term, accommodation options. It was submitted that it would be very unfortunate if Mr Kele was refused bail simply because he did not have stable housing. It was pointed out that prior to his remand he was in a similar situation where he and his partner needed to access emergency accommodation, and that situation remains unchanged.
Broadly, it was submitted that the applicant will be constantly monitored, that he will be checking in with CISP and will not be simply at large. It was acknowledged that his need for emergency accommodation will remain.
In relation to the family violence matters, it was pointed out that in circumstances where that case has resolved with the applicant’s proposed plea of guilty, the aspect of risk to the victim’s safety, in combination with a full intervention order and the fact that she had moved to secret accommodation, ameliorates the risk to safety which had remained a matter of concern to the prosecution. Further, the submission was advanced that, should the applicant be further remanded in custody on the home invasion matters after this application he would not be eligible for the benefits that might associate with a non-custodial sentence following his plea on the family violence matters. It was argued that if that was to be the case, then the applicant would not be able to access a men’s behaviour change program on the family violence matters. Thus, it was argued that it was in the broader public interest to have the applicant be available to access that kind of treatment, which he could access under both a CISP arrangement and also a sentencing disposition that might ultimately be imposed by the Magistrate on the family violence matters.
Finally, it was argued on behalf of the applicant that the onus was on the prosecution to establish on the balance of probabilities that the applicant posed an unacceptable risk. It was acknowledged that such risk cannot be entirely removed, but rather the question was whether the risk was so unacceptable that no conditions of bail could be put in place to reduce it to an acceptable level. It was submitted that there was not sufficient persuasive evidence to support the proposition that the applicant was an unacceptable risk for the reasons already discussed. It was pointed out that he had never failed to attend court, and there was no evidence that he was a flight risk. Further, there was an absence of a serious and lengthy criminal history and any issues to do with the risk of adverse behaviour on the part of the applicant could be dealt with by way of reporting and curfew conditions, along with supervision by CISP. Finally as to the endangerment of witnesses, it was submitted that there was no evidence that he had made threats towards witnesses and, for the reasons already discussed, there was reduced risk in terms of the applicant’s threat to his ex-partner.
For the respondent it was argued that, in respect of the family violence matters to be heard in the Magistrates’ Court, the penalty likely to be received was one that included imprisonment. It was pointed out that the offending had occurred in circumstances where there was a court order preventing the applicant from assaulting his wife — that his offending on the relevant occasion had been persistent and violent, and had occurred in front of the child of the relationship. It was described as ‘very nasty’ conduct, so, the expectation of the respondent would be that the likely outcome was to be a combination sentence of a term of imprisonment associated with a community corrections order. It was argued that this was a serious example of the relevant type of behaviour.
It was also argued that within hours of the family violence offending occurring, there was the added allegation of the home invasion involving violence, including weapons, in a random attack against people unknown to the applicant. It was argued that there was sufficient evidence, when all the circumstantial factors were considered in combination, to make the case a ‘reasonably strong circumstantial case’.
It was pointed out that the applicant is in a show cause situation, and reliance was placed on his lack of ties to Victoria; there being a risk that he would move to another State or out of Australia in circumstances where he was facing the risk of a period of imprisonment. It was fairly acknowledged on behalf of the respondent that it would be difficult, but not impossible, for the applicant to locate the victim of the family violence allegations.
It was pointed out that the applicant’s history suggested that previous court orders have not meant a lot to him, and that there have been problems with the applicant’s compliance with conditions on previous grants of bail. It was conceded that he is youthful and that it was not desirable for a young person to be in a prison environment, but that sometimes a situation arises where there are no other options. This is especially so in circumstances where the applicant had demonstrated significant violence towards his partner in contravention of a court order in place designed to prevent him from doing just that.
It was conceded by the prosecution that, by the time the applicant appears in the Magistrates’ Court to answer the family violence allegations, he would have served about two months’ imprisonment. Further, it was conceded that that period of time could be taken into account by the Magistrate in the setting of an eventual disposition. It was not disputed that a magistrate would regard that a period of two months’ imprisonment served by a 21 year old would be a strong factor in the ultimate assessment of a disposition. It was then conceded by the respondent that a sentence of imprisonment to be imposed by a magistrate in these circumstances could be two months’ imprisonment, and the applicant could move straight to a community corrections order.
Finally, the respondent expressed concern from the conclusions of the CISP report as to the circumstances of available accommodation for the applicant. It was submitted that whilst it is undesirable that the lack of accommodation should be a reason why a person does not get bail, on the other hand one had to look at all the other risks, and in this instance there were too many risks that would justify a grant of bail.
Conclusion
Taking into account all the matters put before me I am of the opinion that the applicant has shown cause why his further detention in custody is not justified.
Further, in my opinion the respondent has not shown that such risk factors as do exist cannot be ameliorated by appropriate conditions on a grant of bail.
I am of the opinion that the applicant’s further detention is not justified where he is 21 years of age, has a limited criminal history and has experienced his first time in custody for what will be approximately two months by the time of his plea of guilty to the family violence matters. In my opinion, despite the unacceptable level of violence displayed towards his partner, and the trauma that she would have experienced, the offending that occurred did not involve the use of a weapon, or threats to kill, and importantly, did not involve inflicting significant physical injury.
The home invasion matters are of an entirely different category. On any view this is a serious example of this type of offending, involving weapons, threats, and force displayed by multiple offenders against apparently random victims. That said, in my opinion, the case against the applicant is not a strong one. There is a reasonable chance that the applicant will be acquitted on the present state of the evidence. In the face of that possibility, and after the conclusion of the family violence proceedings, he faces the prospect of a further 12 months on remand, as a 21 year old. The Magistrate who hears the committal proceeding will be best placed to determine the issue of bail having had the opportunity to assess the full evidence that will be available at that time.
In my opinion the risks of further offending against the victim of the family violence matters are low, for the reasons already discussed. Any risk to the safety of the victim, and the community generally, can be reduced by the imposition of appropriate conditions. The risks of flight can similarly be reduced by a regular reporting condition, and maintaining regular contact with CISP supervisors.
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