Re Kelmendi
[2008] VSC 31
•15 February 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1646 of 2008
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for bail by MERGIN KELMENDI
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2008 | |
DATE OF RULING: | 15 February 2008 | |
CASE MAY BE CITED AS: | Re Mergin Kelmendi | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 31 | |
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CRIMINAL LAW – Application for bail – Unacceptable risk – Application for bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Applicant | Mr B. Johnston | Revill & Papa Lawyers |
HIS HONOUR:
This is an application for bail by Mr Mergin Kelmendi.
The application for bail was filed on 4 February 2008 and is supported by an affidavit sworn by his solicitor on the same date.
The application is opposed by the Crown and an affidavit in opposition to bail has been sworn by Ms Rebecca Radley — a solicitor from the Office of Public Prosecutions. A further affidavit was filed which outlined the history of the matter since the first hearing before the Melbourne Magistrates’ Court in October 2007.
No witnesses were called on the application before me.
Mr Kelmendi is 31 years of age and is presently held in custody at the Metropolitan Remand Centre. He is charged with some 40 counts of theft, two counts of assault (one with a weapon) and two counts of possessing a controlled weapon without excuse. The offences are alleged to concern thefts of items valued at approximately $80,000 from supermarkets and pharmacies. The case against him seems very strong at least as to the majority of the charges.
The offences were alleged to have been committed over a period of some months and in a wide variety of locations. During one such offence Mr Kelmendi is alleged to have threatened a staff member of a store with a knife as he was leaving.
Some of these offences are said to have been committed with an accomplice who has pleaded guilty to some eight counts of theft and has served a period of imprisonment.
Mr Kelmendi was arrested on 5 October 2007 and remanded in custody on 8 October 2007. He has been custody ever since.
It now appears that the earliest date this matter will be dealt with is 17 March 2008, depending on whether the applicant seeks a committal or summary jurisdiction and how he pleads. The Crown has indicated a willingness to consent to the jurisdiction of the Magistrates’ Court dependent on the course the applicant takes. The affidavits filed by the Crown indicate that this matter has been adjourned on a number of occasions on behalf of the applicant, the most recent such adjournment being applied for and granted two days before I heard the bail application.
Mr Kelmendi has an extremely long criminal history dating back to the age of 17 years. His numerous previous convictions include many for serious assault, theft, criminal damage and assaulting police, to name some of the categories. Included amongst that history are convictions for failing to answer bail in 1998, 2001 and 2006, as well as a breach of a suspended sentence for theft in 2004 with the sentence being restored in early 2005.
Pursuant to s 4 of the Bail Act 1977 (Vic) (“the Act”), there is a prima facie entitlement to bail unless the circumstances of the offence require the applicant for bail to show cause because he or she has been charged with particular offences, or to demonstrate exceptional circumstances because they are charged with either treason or murder or one of the specified drug offences. None of those provisions apply in this case.
However pursuant to s 4(2)(d)(i) of the Act a court shall refuse bail if satisfied that there is an “unacceptable risk” that the applicant would either fail to surrender himself into custody in answer to bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public, or interfere with witnesses or obstruct the course of justice.
It is on the basis of this provision in the Act that the application is opposed. Section 4(3) of the Act identifies the matters the court shall have regard to in assessing whether the circumstances constitute an unacceptable risk. The first of those matters is the seriousness of the offences alleged against the applicant. Here there are a series of allegations of numerous offences of theft asserted to be of the order of $80,000 in value, as well as some other allegations of assault, assault with a weapon and possession of a weapon. They are serious. The next matter is the character, antecedents, associations, home environment and background of the applicant. I have already referred to his prior convictions. I am not informed that the applicant is employed. I am told that if he is released he could reside with his mother. The next matter concerns the strength of the Crown case and it does seem to be a strong and direct case.
The Crown carries the onus of satisfying the court that there is an unacceptable risk of a failure to surrender or to commit an offence whilst on bail.[1] In discharging the onus that is on them, the Crown relies primarily on the systematic nature and number of offences alleged to have been committed by the applicant over a significant period of time, as well as his extensive criminal history to which I have already referred.
[1] See, eg, Re Walker [2007] VSC 129 per Cavanough J.
From the applicant’s point of view several factors are relied upon in answer to the Crown’s opposition to bail under s 4(2)(d) of the Act:
(a)That a child born prematurely to the applicant and his partner as one of twins died on 25 January 2008. The other twin is in intensive care. There is also another child aged 11 months who is in need of intensive support. It is submitted that the mother of the child, Ms Attenborough, is in urgent need of support. I have little doubt that is true.
(b)Mr Kelmendi has apparently been assessed as suitable for the Court Integrated Services Program which would mean that he would gain assistance for his “substance abuse issues”. I am told he has a cocaine addiction.
(c)Mr Kelmendi has suitable accommodation at his mother’s premises in Delahay.
(d)There are shortcomings in the evidence against Mr Kelmendi on certain charges and it is anticipated that there will be a delay in the matter coming on for hearing depending on the course that the applicant takes in the matter. After four months it seems he has yet to make that decision.
The main concern here is whether the applicant would answer his bail. The fact that his partner is in urgent need of his support does not, in my opinion, compel the conclusion that MrKelmendi will present himself for his trial.
Regrettably, despite the difficulties being faced with his young children, it is my view that the applicant fits squarely into the category contemplated by s 4(2)(d)(i) of the Act and in my opinion the Crown has satisfied the onus that is placed upon it. I conclude that there is an unacceptable risk both that the applicant would fail to surrender himself into custody in answer to bail and also that he may commit an offence whilst on bail.
The application is refused.
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