Re Key
[2021] VSC 109
•11 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0039
| IN THE MATTER of the Bail Act 1977 |
| -and- |
| IN THE MATTER of an Application for Bail by MAYEK KEY |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 March 2021 |
DATE OF JUDGMENT: | 11 March 2021 |
CASE MAY BE CITED AS: | Re Key |
MEDIUM NEUTRAL CITATION: | [2021] VSC 109 |
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CRIMINAL LAW – Bail – 22 year old applicant with no criminal history – Two separate bouts of alleged offending separated by 21 months – Affray, recklessly causing injury, robbery, theft and committing an indictable offence whilst on bail – Up to six months of pre-hearing remand a prospect – May exceed likely sentence upon conviction – Onerous conditions on remand – Risk of time in custody interfering with prospects of rehabilitation - Supportive family and home environment – Respondent conceded that it would be open to Court to decide both steps of the bail process in favour of the applicant – Compelling reason made out – Unacceptable risk not established – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Waters | Victoria Legal Aid |
| For the Respondent | Mr J Kibel | Legal Services Department, Victoria Police |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of charges he faces of recklessly causing injury (‘RCI’) (2 charges), affray (‘the informant Sadler charges’), robbery, theft, and committing an indictable offence whilst on bail (‘the informant Toohey charges’). The charges arise from two separate incidents.
The applicant was on bail for the informant Sadler charges at the time of the alleged commission of the informant Toohey charges. As a result, and because one of the charges committed in the second group was an offence against the Bail Act 1977 (‘the Act’), the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.[1]
[1]The Act s 4C(1A).
Procedural history
The incident underlying the informant Sadler charges occurred on 19 May 2019. The applicant was charged on summons on 31 December 2019. He failed to appear as required at Melbourne Magistrates’ Court on 9 November 2020. A warrant was issued for his arrest. This was executed on 11 November 2020, and he was then bailed to appear at the next listing date of 7 April 2021.
The incident underlying the informant Toohey charges occurred on 17 February 2021. The applicant was charged on that date. He applied for bail at Sunshine Magistrates’ Court the same day. It was conceded by the respondent that it would be open to the court to find a compelling reason justifying the grant of bail. Notwithstanding that concession, the learned Magistrate refused bail on the basis that the applicant had failed to show a compelling reason. Bail was then revoked on the informant Sadler charges.
The applicant has been in custody since 17 February 2021, a period of 22 days by the time of the hearing of the application.
The alleged offending
The informant Sadler charges
On 19 May 2019 at about 1.00am, the applicant and the two co-accused, CD and AA, were walking along Clarendon Street, near Crown casino, when another group of four males, HS, PS, TS and MS, walked by in the opposite direction. As they met, one of the co-accused asked the other group, ‘why are you looking at me?’, which MS denied was the case.
A short verbal argument began. HS, who had been walking ahead, returned to the others and asked what the problem was. It is then alleged that CD punched HS to the face, causing him to bleed from the nose and fall to the ground. One of the alleged offenders kicked HS to the head, following which HS asked his friends to call emergency services. HS then used his phone to take a photograph of CD.
PS attempted to defuse the situation, but was then hit to the side of the head, also falling to the ground. MS and TS attempted to remove their friends from the situation, but were both punched to the head.
The police attended the scene and the applicant and co-accused were arrested. The applicant appeared heavily alcohol affected and was taken to hospital for medical examination. PS and HS were also conveyed to hospital. PS sustained facial fractures requiring surgery. HS sustained a fractured nose.
After being released from hospital, the applicant was interviewed by police, during which he stated that he could not really recall the incident and that he had consumed more alcohol than the co-accused. He went on to say, among other things, that he recalled there was an argument and admitted to hitting someone once with his fist, but that he had not hit the person ‘that hard’.
The informant Toohey charges
On 17 February 2021, the 15-year-old complainant, OC, was going for a run along Hume Drive in Fraser Rise. He had with him an Apple iPhone, his NAB bank card and a pair of Apple ‘Airpod’ earphones.
At about 10.40am, the applicant allegedly approached OC and first asked for his name, and then for the passcode to his iPhone and to turn off the iCloud password. OC complied as he was unnerved by the situation. The applicant allegedly proceeded to snatch the iPhone and Airpods from OC’s hands, and ran from the scene. OC returned home and informed his mother of the incident, which was then reported to police.
At approximately 11.13am, the applicant was located and arrested in Darlinghurst Place, Taylors Hill wearing the same clothes as described by OC. Police conducted a pat down search during which an iPhone with the same unique serial number as OC’s phone, a pair of Airpods and a NAB bank card in OC’s name were located. Police identified that there was a Bluetooth link between the iPhone and the device named ‘[O’s] Airpods’, further confirming the items found in the applicant’s possession belonged to OC. The items were returned to OC the next day.
The applicant was interviewed and denied committing the robbery, stating that he had found the mobile phone on the ground.
Personal circumstances
The applicant is 22 years old. Prior to his remand, he lived in the family home in Plumpton with his mother, father, grandmother, and seven siblings. He is of South Sudanese descent, having come to Australia with his family in 2006. He is an Australian citizen. He completed Year 12 at Sydenham Regional College in 2017. Since then, he has completed certificates in bricklaying, traffic control and business. He commenced employment as a labourer in late 2019, and has had a number of positions of employment, most recently, at the time of his remand, a casual position unloading shipping containers. He has commenced courses as a barrista and a barber. He played competitive soccer for ten years, only ceasing at the commencement of the first COVID-19 lockdown in 2020.
The applicant has no criminal convictions.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[2] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[3] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4C(2).
[3]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[4]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[5]
[4][2019] VSCA 214.
[5]Ibid [43].
The applicant’s submissions
Mr Waters for the applicant relied on a combination of matters to demonstrate that a compelling reason exists that justifies the grant of bail. These were as follows:
a) The applicant’s youth and limited history of offending. The applicant is only 22 years of age. He has no prior convictions. The offending alleged here is on two discrete occasions almost two years apart, with no other offending alleged in the interim.
b) Whilst the offending was conceded to be serious, a sentence other than a term of imprisonment would be open for all of the offending. Mr Waters highlighted the matters which would go in mitigation should the applicant fall to be sentenced on some or all of the charges. He submitted that a community correction order would be within the range.
c) The applicant’s supportive home environment and background of engagement with education, employment and sport. Mr Waters relied, in this regard, upon the evidence of the applicant’s father, who attested to the good behaviour of the applicant, indicated his engagement in education and employment, and indicated that he could supervise the applicant’s compliance with bail.
d) The likely delay in the charges being able to be resolved and dealt with. On this score, Mr Waters frankly conceded that it was highly likely that the charges would be resolved without the need for contested hearings. He submitted, however, that it would be reasonable for the Court to proceed on the basis that the charges would not be finalised until July or August 2021. That would raise the prospect of the applicant spending six months in custody pending resolution of the charges. In the case of a 22 year old applicant experiencing his first period in custody, that is a very significant consideration, submitted Mr Waters. He submitted that were the applicant to spend such a period in custody now it may reduce his prospects of ultimate rehabilitation.
e) The conditions experienced by the applicant in custody due to the COVID-19 pandemic. The applicant has been held in the Metropolitan Remand Centre. For the first 14 days, he was in quarantine, which effectively meant solitary confinement. The conditions of custody remain onerous.
On the question of unacceptable risk, Mr Waters submitted that the risk posed by the applicant should not be considered to be unacceptable due to his limited criminal history, the 22 days he had already spent in custody by the time of the hearing, which would be a salutary lesson to him, the evidence of his recent engagement in education, employment and sport, and the availability of significant family support and the support of the UTURN 193 program, a support service provided through the City of Melton, from whom the Court received a letter indicating the applicant’s suitability for the program.
The respondent’s submissions
The respondent’s position as indicated in the affidavit in response was that it was conceded that it would be open to the Court to find that a compelling reason exists that would justify the grant of bail, but that bail was opposed on the basis that the applicant poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, or failing to answer bail.
In his submissions before me, Mr Kibel made some submissions emphasising the seriousness of the offending. On the other hand, he did not take issue with the defence submission as to the likely sentence should the applicant be found guilty. He reiterated the respondent’s position as to a compelling reason, which mirrored the position taken in the court below.
In the end, however, Mr Kibel conceded that in the circumstances of this case, it would be open to the Court to find that the risk posed by the applicant could be mitigated to an acceptable level by the imposition of the conditions proposed by Mr Waters.
Analysis
As I indicated during the hearing, to my mind, the question of bail in this case is a finely balanced one. On the one hand, the offending is serious, as reflected by the violent nature of the affray and the clearly serious injuries sustained by at least one of the victims. The more recent offending was again a crime of violence, in this case targeting a vulnerable 15 year old child, committed in breach of the bail the applicant had received for the earlier violent offending. No question is raised as to the strength of the overall case. Albeit that discussions are ongoing in pursuit of a resolution of the charges, it is undeniably the position that the prosecution case on all charges is of at least reasonable strength.
On the other hand, the applicant is a person from a stable and supportive family background without prior convictions who has a history of engagement in education and employment to a reasonable level. The two episodes of criminality alleged against him occurred almost two years apart. He was not said to be the prime mover in the affray, and as for the most recent offending, it occurred seemingly out of the blue and involved no overt violence, although it is obvious that the young victim was terrified by what took place. The applicant has already endured 21 days in custody, the first 14 of them in the very onerous conditions of quarantine. Should bail be refused now, he may remain in custody for six months or so before resolution of the charges. There is a risk that a period such as that in custody for a young person like the applicant may jeopardise his prospects of ultimate rehabilitation. Furthermore, such a period may well exceed the likely sentence should he be found guilty. On that score, I accept, as was the position of both sides in the application, that notwithstanding the seriousness of the offending, the many mitigating features in the applicant’s case may have the result that he would receive a non-custodial sentence.
Having considered all of the surrounding circumstances of this case, I have reached the view that the applicant has discharged the burden resting on him of proving that a compelling reason exists that justifies the grant of bail. I am comforted in that conclusion by the very fair and appropriate concession of the respondent. Having reached this conclusion on the material before me, I should make it clear that the decision of the learned Magistrate to reach a different conclusion on the same question is entirely understandable.
Turning to the question of unacceptable risk, in respect of which, of course, the burden is on the respondent, the fact of the applicant having allegedly carried out another serious crime of violence, that is, robbery, targeting a vulnerable child, while on bail for the first episode of violent offending, is most concerning. There is no explanation before the Court as to why this occurred. The applicant acted alone. The offending occurred in the morning, and there is no suggestion it was accompanied by the state of intoxication which marked the first offending. The applicant was living at home with his family and had the benefit of at least part-time employment.
All of these matters dictate that there must be considered to be a real risk that, if released on bail, the applicant might again see fit to re-offend, and that in doing so, he might endanger the public. The question is whether such a risk should be viewed as being unacceptable, or whether it can, by the imposition of conditions, be mitigated so that it is not an unacceptable risk.
In the end, having considered all of the surrounding circumstances as outlined by Mr Waters, and taking into account what was a conspicuously fair concession by Mr Kibel in this regard, I am not satisfied that the obvious risk posed by the applicant is an unacceptable one.
Conclusion
For the reasons I have stated, I am prepared to grant bail to the applicant, on the conditions I will shortly announce.
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