Re Khoshaba - [2022] VSC 54

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0391

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for Bail by JAYHAN KHOSHABA

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF JUDGMENT:	9 February 2022
CASE MAY BE CITED AS:	Re Khoshaba
MEDIUM NEUTRAL CITATION:	[2022] VSC 54

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CRIMINAL LAW – Application for bail – Applicant charged with home invasion, theft, intentionally causing injury, bail offences — Onerous conditions in custody — Delay — Electronic monitoring — Availability of treatment and bail support services – Whether applicant has demonstrated exceptional circumstances – Whether applicant poses an unacceptable risk – Bail granted on stringent conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, 4A, 4AA, 4D, 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Dunn QC	Milides Lawyers

For the Respondent

Mr D Plummer

Office of Public Prosecutions

HIS HONOUR:

Introduction

By application filed 23 December 2021, Jayhan Khoshaba (‘the applicant’) seeks a grant of bail in this Court in relation to the following charges brought by Detective Senior Constable Michael Fullarton, relating to events on 7 August 2021:

(a)home invasion;
(b)theft;
(c)intentionally causing injury;
(d)committing an indictable offence whilst on bail; and
(e)contravening a conduct-condition of bail.

There is one co-accused in this matter, Manuera Ihaka, who is currently on remand charged with home invasion, theft, intentionally causing injury, possessing a drug of dependence (two charges) and driving unlicensed.

The applicant was arrested on 19 August 2021. He has been in custody since his arrest. He was refused bail in the Melbourne Magistrates’ Court on 22 October 2021, as he was found to be an unacceptable risk of committing an offence on bail and endangering the safety or welfare of any person.

At the time of the alleged offending, the applicant was on bail for two matters and on summons for another. The charges in those matters, broadly, related to drug, weapon, dishonesty, driving, and bail offences, and in particular, included a charge of trafficking a drug of dependence and committing an indictable offence whilst on bail. All these matters were finalised on 17 December 2021, at which time the applicant was sentenced in the Melbourne Magistrates’ Court to an aggregate fine with convictions recorded. The applicant is not on bail for any other matters at the present time, nor is he on summons for further matters.

The hand up brief in the present matter was served on 27 September 2021, and the matter is listed for a committal hearing on 3 May 2022.

The alleged offending
Background

There are two complainants in the matter, Tyler Elliott (‘TE’) and Michael Constable (‘MC’). It is suggested in the police summary that they had a connection with the applicant and co-accused which predated the alleged offending but this is not acknowledged in the complainants’ statements. The primary complainant TE hypothesises that the alleged offending was either…

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 Khoshaba

Details

AGLC: Re Khoshaba [2022] VSC 54
Case: [2022] VSC 54
Decision Date: 9 February 2022

CaseChat Overview and Summary

The case of Re Khoshaba was heard in the County Court of Victoria. The applicant, Khoshaba, was charged with home invasion, theft, intentionally causing injury, and bail offences. He sought bail, arguing that the conditions of his custody were onerous, the delay in processing his application had caused undue hardship, and he could be electronically monitored with the availability of bail support services. The prosecution opposed bail, citing the seriousness of the charges and the risk of reoffending.

The primary legal issue before the court was whether the applicant had demonstrated exceptional circumstances that warranted the grant of bail. This involved assessing the onerousness of the applicant's conditions in custody, the delay in processing the bail application, and the availability of electronic monitoring and bail support services. The court also had to consider whether the applicant posed an unacceptable risk to the community or to any person, including the complainant.

The County Court judge found that the applicant had demonstrated exceptional circumstances due to the delay in processing the bail application and the onerous conditions of his custody. The court was satisfied that the applicant could be electronically monitored and that bail support services were available. While acknowledging the seriousness of the charges, the judge concluded that the applicant did not pose an unacceptable risk to the community or to any person if stringent bail conditions were imposed. The judge granted bail on stringent conditions, including electronic monitoring and strict reporting requirements.

The final orders of the court were that the applicant be released on bail subject to the specified conditions. These conditions included electronic monitoring, strict reporting requirements, and other restrictions designed to ensure the applicant's compliance and to mitigate any risk to the community.

Orders