Re Khoshaba
[2022] VSC 54
•9 February 2022
| 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 |
---
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 |
---
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.
---
| 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 random or somehow connected to his brother’s imprisonment on serious drug charges.
At the time of the alleged offending the applicant resided in an apartment complex in Southbank (‘the Southbank complex’). He was on bail with a curfew between 9:00pm and 5:00am.
The prosecution case
TE resides at an address in Prahran. On 7 August 2021, he and MC were asleep in the living room of that address when, at approximately 6:45am, it is alleged the applicant and co-accused went to their address and scaled a fence at the rear of the property. The co-accused is alleged to have injured his leg in the process, before both he and the applicant approached a rear sliding door, where they were confronted by TE. TE attempted to hold the door closed, dropping an amount of cash in the process, but retreated back after the applicant ‘kicked out’ at him.
Once inside TE’s house, the applicant took the money that TE had dropped, while the co-accused produced a handgun and shouted, “Where’s the money? Give me the money”. TE went to the kitchen and armed himself with a knife, before advancing towards the co-accused, pushing past him and running down the hallway. The co-accused pursued TE and struck him with a chair, breaking his nose and cheek bone, and causing him to lose consciousness. Meanwhile, MC hid behind a chair in the lounge room, where he observed the applicant rummaging through the kitchen.
At about 6:50am, one of TE’s neighbours, Nicholas Coull, (‘NC’) heard screaming coming from TE’s house. He heard two male voices, and one was yelling, ‘Put that down’. NC went to the house to investigate, but no-one answered the doorbell so he returned home.
Sometime after the assault on TE, the applicant and co-accused demanded that MC open the garage door for them. MC complied and the two then exited and fled down an alleyway at the rear of the property. It was noticed after they left that MC’s iPhone and an Apple laptop were missing from the kitchen.
At about 7:00am, the witness NC returned to the house to check on the situation. He spoke to MC, who told him that the house had been broken into, and that he was going to call the police.
At 7:41am, after TE regained consciousness, he sent a text message to his friend, Troi McDermott, (‘TM’) stating he had been robbed, assaulted and held at gunpoint. TM went to the house and saw a wooden chair broken in pieces, in addition to the house being in a general state of disarray. He observed TE’s injuries and transported him to the Alfred Hospital.
Investigation and arrest
Later that day, TE was discharged from hospital and returned home. He contacted police, who attended and examined the scene, obtained CCTV from his and a neighbouring property, spoke to witnesses, photographed injuries and seized clothing. The CCTV is said to depict:
(a)at 5.31 am, the co-accused arriving at the front of TE’s property on a scooter wearing dark clothing and gloves, a face mask and white shoes; and
(b)at 6.17 am, the co-accused returning to his scooter limping and carrying his face mask in his hand, revealing his face and heavily tattooed arms and neck.
On 10 August 2021, MC provided a description of the firearm used during the incident to police and a face-fit image of one of the offenders. The image was consistent with the appearance of the co-accused.
On 13 August 2021, the co-accused was arrested by officers of the Victoria Police Special Operations Group in Brunswick. Police later searched an address in Brunswick connected to him, where they located various items including white sneakers and an electric scooter said to match those worn and used by one of the offenders in CCTV. The co-accused provided a no-comment interview.
Examination of the co-accused’s phone records identified calls made around the time of the alleged offending to a number registered in the name and address of the applicant.
On 17 August 2021 police obtained CCTV from the Southbank complex. It is said to depict the following events on the morning of 7 August 2021:
(a)at 2:56am, the co-accused arriving at the building with an electric scooter wearing dark clothing with white sneakers;
(b)at 4:18am, the applicant in the foyer of the building wearing dark clothing and brown boots;
(c)at 4:26am, the applicant using his fob to exit the building, and subsequently returning with an electric scooter; and
(d)at 7:11am, the applicant and co-accused being dropped off at the building in a white sedan; the applicant using his fob to gain entry while in possession of items stolen from TE’s house; and the applicant and co-accused taking a lift up to the applicant’s apartment.
The concierge from the Southbank complex identified both the applicant and co-accused from the footage, stating that the applicant had resided there for two years and that he knows the applicant and the co-accused and had seen them in the building ‘many times’.
At 5:50am on 19 August 2021, police attended the applicant’s apartment and arrested him. They executed a search of the residence and located clothing alleged to have been worn during the alleged offending. Later that day police seized two phones belonging to the applicant from the applicant’s partner, Belinda Dulevski, (‘BD’) at an address in Epping.
During a record of interview the applicant denied knowledge of the alleged offending, any association with the co-accused, having ever been to Prahran, the phone number registered in his name, or memory of the day of the incident. He was arrested and remanded in custody.
The application
The application is supported by the affidavit of Thea Milides, solicitor, dated 31 January 2022, attaching a series of exhibits, some of which will be noted below. The applicant also relies on the affidavit of Laura Wilson, a product manager, dated 22 December 2021. The applicant filed a 10-page written submission supplemented by oral submissions on the hearing of the application, as well as calling the evidence discussed below. Further, the applicant relied on, and spoke to, a 10-page chronology of events, which included emphasising the applicant’s personal background.
In response to the application, the respondent filed an affidavit sworn by Hugh Boyd-Wilson, solicitor from the Office of Public Prosecutions, dated 19 January 2022, also attaching a series of exhibits, including a report prepared and authored by Detective Senior Constable Michael Fullerton dated 17 January 2022.
The respondent relied on the filed written material as well as oral submissions on the application.
The parties agree that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis, without objection.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[1] I shall further refer to this aspect below.
[1]The Act, s 1B(2).
The applicant is accused of a Schedule 2 offence within the meaning of the Act (namely, home invasion),[2] which is alleged to have occurred while he was on bail for other Schedule 2 offences (namely, trafficking in a drug of dependence and committing an indictable offence whilst on bail).[3] Bail must therefore be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[4] In determining this, the Court must take into account the relevant ‘surrounding circumstances’, including those in s 3AAA(1) of the Act.[5]
[2]Ibid, sch 2, item 22(c).
[3]Ibid sch 2, items 24(b) and 30.
[4]Ibid ss 4AA(2)(c)(i), 4A(1), 4A(1A) and 4A(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, bail must still be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[6] In considering this, the Court must again take into account the ‘surrounding circumstances’ and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[7]
[6]Ibid ss 4D(1)(a) and 4E.
[7]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 39 years old and is the second youngest in a sibship of six. He was born in Iraq and remained there until he was six years old, when his family fled to Jordan and then Turkey, before migrating to Australia when he was eight years old. The family were accepted into Australia as genuine refugees. He is part of a close-knit family who all reside in Melbourne, with the exception of his father who died in 2012 from cancer.
The applicant was bullied at school due to his ethnicity and learning difficulties. He left in Year 9 and has worked in various jobs since, including at a fast-food restaurant, and as a spray painter, labourer and a carpenter. He ceased work during the COVID-19 pandemic and has been financially supported by family since. Before his father’s death, the applicant worked in his father’s building business and it is said he lived a normal and largely law-abiding life until about the time that his father died. After his father’s death, the family building business ceased to operate and the applicant moved out of home and lived in the Elwood/St Kilda area where he established a methylamphetamine ice habit.
The applicant reports a history of alcohol and drug use, in part, which appears confirmed by his prior convictions. He began using cannabis around age 14, and methylamphetamine at age 21. In his mid-twenties, he formed a significant romantic relationship and ceased all drug use. He managed to sustain this for approximately five years, but relapsed in the context of his father being diagnosed with cancer and his partner’s sister passing away. This in turn led to the breakdown of his relationship, and the applicant’s drug use has remained consistent since that time.
The applicant is currently in a long-term relationship with Belinda Dulevski (‘BD’), which commenced in 2016. He considers himself a father figure to her nine year old son, whose father is a former associate of the applicant. This relationship has caused significant difficulties for the applicant, due to the ex-partner’s perception that the applicant ‘stole’ his family. In this context, the applicant reports having been targeted, threatened and assaulted by the ex-partner and/or his associates, and having had shots fired at his mother’s home. In addition to BD’s son, the applicant considers himself to be a step-father to the six year old daughter of a former partner.
Criminal history
The applicant has a criminal history dating back to 2004, comprising primarily of driving, dishonesty and drug-related offences, and breaches of court-based orders, which will be further noted below.
The applicant’s contentions
The applicant relies on the following matters, in combination, in support of his application for bail.
As to the legal principles
The applicant points out he is entitled to bail unless the Act requires the court to refuse bail. However, it is conceded that in this application the applicant must demonstrate exceptional circumstances justifying a grant of bail and that the burden rests on him to establish that. The applicant further points out that the burden of establishing exceptional circumstances should not be set so high that it is impossible to achieve a grant of bail.[8]
[8]Re Whiteside [1999] VSC 413, [10] (Warren J).
Strength of the prosecution case
The applicant submits that the prosecution case is circumstantial, and that there are deficiencies in the evidence being able to establish that the applicant:
(a)was present at the scene, noting absence of forensic evidence and expert material related to phone records;
(b)acted in concert with the co-accused or was aware of the conduct of the co-accused; and
(c)had knowledge of a firearm being present.
The applicant points out that the two complainants did not provide evidence of the applicant’s identification, and furthermore, raises issues with the prosecution case, including the credibility of the complainants and the fact that CCTV from the complainant’s address reportedly does not show a firearm, nor can facial identity of the offenders be confirmed due to the angle and quality of the footage. The applicant disputes he was present at the complainant’s house, and says he was not involved in the home invasion. The applicant disputes the prosecution assertion that his identity can be established on CCTV images, and further that the applicant has not been positively identified by any witness. Further, the applicant points the premises being subjected to DNA and fingerprint analysis, which results have proven negative.
Criminal history
It is noted that the applicant has no history of violent offending. Otherwise, the applicant points to his history showing that in the main, he was convicted of driving and drug offences, and offences of dishonesty from around 2012, but no offences alleging violence. In cross examination the informant agreed that his prior convictions had a constant theme of driving and using drugs, and that at the time of the present alleged offending the applicant was a methyl amphetamine and ice user. The informant further agreed that since his arrest and imprisonment the applicant has now detoxified in the prison setting. The applicant submitted that despite the extent of his criminal history, he has had a fairly limited exposure to imprisonment. Counsel emphasised the applicant’s sad and sorry history of drug use, and referred to a comment in a police brief that the accused was “a chronic ice user”, and that police believed he was offending in order to support his drug habit.
Family support, ties to the jurisdiction and stable accommodation
The applicant’s family are Maronite Christians from northern Iraq. In the early 1990s, the family fled to Jordan and were later accepted as genuine refugees, and gained entry to Australia, thereafter establishing themselves successfully. It is submitted that he is close with his family and supported by them, and they are all of good character. Further, because they all reside in Melbourne, it is submitted that the applicant has strong ties to the jurisdiction.
The applicant’s father became unwell and ultimately died in 2012. Thereafter the family company ceased functioning. Using a van and tools from the company, the applicant set up a business as a handyman and moved out of home. It was submitted that by examining the applicant’s criminal history alongside his personal history, it reveals a clear correlation between the applicant’s loss of his father and his escalation in drug abuse and related offending.
The applicant’s brother, Nader Khoshaba, is aware of the applicant’s problematic history with drug use and has offered to fund his participation in a residential rehabilitation program to address this issue. Nader has also offered for the applicant to live with him at 2 Brentwick Drive in Craigieburn upon successful completion of the residential rehabilitation program as discussed below. The applicant’s mother also resides at this property in her own separate unit.
Employment
The applicant’s brother, Nader, is able to provide the applicant with employment in a family-owned café at Bundoora, following completion of the proposed residential rehabilitation program.
Availability of treatment and bail support services
The applicant submits that it is well recognised by Victorian courts that the community has a strong interest in the rehabilitation of drug offenders. In this regard, the applicant proposes the following in support of his application for a grant of bail.
Residential rehabilitation
The applicant noted that he has a long history of drug abuse and related offending, which is evident from his criminal record. At the time of the alleged offending, the applicant was a methylamphetamine ice user.
In light of his history, the applicant proposes to undertake a residential rehabilitation program at ‘The Cottage’ in Shepparton if bail is granted. He asserts that having been in custody since August 2021, he is now detoxified and drug free, despite having limited access to programs and counselling due to COVID-19 restrictions in prison. He was initially assessed on 22 September 2021 for the purposes of a previous bail application, and at that time was found suitable by Ms Maria Hutchison, a counsellor. In a letter dated 26 September 2021, Ms Hutchison cited the applicant’s history of daily methamphetamine use over the last nine years, and prior to that, his periodic drug use triggered by events including his father’s death, a relationship breakdown and unemployment. Ms Hutchison stated that the applicant presented as being in significant denial of the negative effects of his drug-use and lifestyle choices, although he reported to her that he was motivated to address these issues, citing his desire to ‘settle down’ and have a family, and fears he would lose his partner and connection to his step-children if he did not. The applicant relies on the findings of Ms Hutchison for the purposes of this application.
If the applicant is bailed to The Cottage, Ms Hutchison recommended a minimum four months’ residential treatment before possible transfer to a transitional housing program.
In submitting that it is in the community’s interests, as much as the applicant’s, for him to undertake a drug rehabilitation program, a number of previous bail decisions of this Court were referred to, including Nicholls,[9] Gaylor,[10] Haddara,[11] and Ezzy.[12]
[9]Re Nicholls [2020] VSC 189.
[10]Re Gaylor [2019] VSC 46.
[11]Re Haddara [2014] VSC 284.
[12]Re Ezzy [2018] VSC 4.
On the hearing of this matter, the applicant called evidence from Aaron Gilhooley, the Forensic Intake Manager at The Cottage. Mr Gilhooley authored a letter dated 22 September 2021, which formed part of the affidavit material relied on by the applicant. The letter outlined some of the background and purposes of the proposed program. It further described the four phases of the program, and that if a client absconded or returned a positive result to a urine sample that event would be reported directly to the informant. In oral evidence, the witness confirmed that The Cottage is a not-for-profit organisation. He confirmed that in September 2021 Cottage staff had assessed the applicant as suitable for inclusion into the program, and another assessment conversation took place with him in December 2021. Mr Gilhooley said he understood the applicant has been in custody since August 2021, and that he had been tested and found to be drug-free while in prison. He confirmed that there had been past instances of clients who had breached a direction or rule of the program and that they had been reported to the Shepparton police without hesitation. He confirmed that the Cottage is not a ‘locked down’ facility, although there is a 24-hour residential staff arrangement as well as 24-hour video surveillance. He agreed it was possible that clients could leave during the night, but that he believed there were good connections in existence with Shepparton police in the event that that happened. He confirmed that there were bed checks at 11:00pm and at 7:00am each day.
Mr Gilhooley explained the assessment process that had occurred with the applicant, and expressed belief that he has had an addiction to methamphetamine for about the last eight years. He confirmed that he was aware of the applicant’s criminal record, which included one instance of the applicant being sentenced to a CCO with a condition of receiving drug rehabilitation treatment, which was later breached. His past record of non-compliance with a drug rehabilitation condition was a matter taken into account in the assessment of the applicant.
Mr Gilhooley also confirmed that if someone had participated well in the four-month program, there was an option for transitional housing for an additional eight weeks, if required. The transitional house is located next to The Cottage. He confirmed that presently there exist no firm arrangements for the applicant to receive ongoing supervision beyond the possible eight weeks transitional housing. Finally, he conceded that at present there is no written Memorandum of Understanding in existence between The Cottage and Shepparton police in the event of a client absconding.
The applicant has indicated that his brother, Nader Khoshaba, will fund the intake fees of the program at The Cottage, which will be in the amount of $7,000.
Counselling
The applicant has attended approximately 20 appointments with clinical and forensic psychologist Michael Crewdson since December 2019, including whilst remanded. In a report dated 16 December 2021, Mr Crewdson set out the applicant’s background in detail and noted that he presents as vulnerable with symptoms of substance use disorder, post-traumatic stress disorder, anxiety, depression and dysthymic disorder. If granted bail, the applicant proposes to continue seeing Mr Crewdson for treatment, the importance of which is emphasised in circumstances where access to the same is limited in a custodial setting, and where it is judicially recognised that the burden of remand is more onerous on persons with mental health struggles. Mr Crewdson can offer ongoing counselling and treatment if the applicant receives a grant of bail.
Delay
The applicant points to the delay he will experience before his trial is resolved. The applicant has been in custody since his arrest on 17 August 2021, being almost six months. The matter is next listed for a committal hearing on 3 May 2022, at which time the applicant will have spent close to nine months in custody. The applicant then estimates that he will face a delay of up to two years in the matter reaching trial, in part due to the effects of the COVID-19 pandemic. The applicant concedes that the precise delay period is not certain, and that it is hard to predict, but that the best case scenario is that his trial would not commence until sometime in 2023, at the earliest. It was acknowledged however, that should the applicant be convicted of serious offences alleged, that he would be facing a substantial sentence likely to exceed the period he currently faces on remand.
COVID-19 and onerous conditions of custody
It is submitted that the applicant’s time in custody has been rendered more onerous by the COVID-19 pandemic, including due to limited access to psychological and medical treatment and numerous 24-hour lockdowns. It is submitted this is especially burdensome given the applicant’s anxiety and depressive disorders. Further, it was submitted that because of a series of COVID lockdowns, there have been limited courses available for drug rehabilitation whilst on remand. Nevertheless, it was submitted that the applicant is currently drug-free within the prison, is a trusted prisoner, and that he has shown a commitment to remaining drug-free.
Electronic monitoring
If granted bail, the applicant proposes to be subject to geographical electronic monitoring administered and overseen by a private company, Attenti Australia Pty Ltd (‘Attenti’), at his own expense of $25,000 per 12 month period.
The arrangement would involve a tamper-proof GPS device being fitted to the applicant’s person and components installed in his place of residence, which would transmit data relating to his whereabouts and movements using mobile phone networks. The device could be programmed to monitor specific bail conditions, such as curfew, residence or exclusion zones. The applicant’s movements would be monitored continuously by the device, with data being be uploaded to Attenti’s central management system every 30 minutes. In the event of a breach or device failure, the informant (or other nominated person) would automatically be notified of it.
Laura Windsor, Product Manager for Attenti, affirmed an affidavit on 22 December 2021 in which she set out various matters, including the background and work of Attenti, the nature of their devices, installation requirements, and the process triggered in the event of a violation of any pre-programed conditions. She confirmed that the proposed bail addresses at both The Cottage and the applicant’s brother’s house were assessed and considered suitable for Attenti’s services. In her affidavit she also addressed a recent New South Wales case where alleged drug trafficker, Mostafa Baluch, was on bail with an electronic monitoring condition through Attenti and severed his ankle bracelet, evaded police for more than two weeks, and ultimately was found in a shipping container travelling to Queensland. Ms Windsor states that Attenti’s standard operating processes were followed in that case, including an automatic alert being sent to police and a follow up call being made to them. This situation led to parliamentary discussion about privately funded and outsourced bail monitoring devices.[13]
[13]Portfolio Committee No. 5 – Legal Affairs, Parliament of New South Wales, Estimates 2021, Answers to Attorney General, The Honourable Mark Speakman, received 30 November 2021.
In a single exhibit to her affidavit, Ms Windsor referred to 14 bail cases, split equally between Victoria and New South Wales, where Attenti is said to have provided electronic monitoring services to the persons referenced in those cases. Notwithstanding that this Court is yet to impose an electronic monitoring condition through Attenti, two of the Victorian cases referenced by Ms Windsor were both before this Court as reviews of a magistrate’s decision to extradite two accused persons to Queensland in custody, rather than on bail. Included in the matrix of factors relied upon by those two accused was electronic monitoring provided by Attenti. However, because the magistrate’s decision was effectively confirmed by this Court, meaning that both accused were extradited to Queensland in custody rather than on bail, there was no need for any such condition to be imposed.[14] Therefore, if either of the accused are now on bail with electronic monitoring through Attenti, this is not the result of them being granted bail in this Court.
[14]Formica &Forni v Victoria Police [2020] VSC 719 (Hollingworth J).
Surety
The applicant’s brother, Nader Khoshaba, proposes a $14,000 surety by way of equity in an unencumbered block of land he owns in Korong Vale. It is submitted that the availability of a surety will provide additional motivation for the applicant’s compliance with bail and engagement in rehabilitation.
Unacceptable risk
The applicant submits that he is not an unacceptable risk of any of the matters outlined in s 4E(1)(a) of the Act, but that any such risk alleged by the prosecution could be mitigated to an acceptable level through the imposition of appropriate bail conditions, as set out in the affidavit supporting the application, with particular emphasis on the therapeutic treatment available in regional Victoria through The Cottage. Furthermore, the applicant particularly emphasises that should the applicant become resident at The Cottage, the evidence should satisfy the Court that if he does not comply with bail and residential conditions he will be reported, and his bail will come to an end.
Further, the applicant points out that he was not subject to any community corrections orders at the time of the alleged offending as well as not subject to a CISP order at the time.
The applicant further submitted that there was no reason for him to be regarded as a risk to the complainants, on the basis that they did not provide evidence of his identification, and there would be nothing gained by interfering with them. In any event it was submitted that if the complainants became unavailable or unwilling to give evidence, their statements could be simply admitted into evidence, as well as CCTV evidence that would be admissible in any event.
Finally, it was submitted that any unacceptable risk could be ameliorated by the imposition of judicial monitoring for the period of the bail order, which was submitted to be of limited duration in any event, for the period leading up to the committal in this matter.
The respondent’s contentions
The respondent opposes bail on the basis that the applicant has not demonstrated exceptional circumstances that justify a grant of bail, and that he poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice. It is submitted that there are no conditions of bail that could effectively mitigate these risks.
The respondent conceded that a combination of factors can be relied on to satisfy the exceptional circumstances test, but maintains that in the applicant’s case the main factor to consider would be delay, however, this would need to be assessed in the context of a serious home invasion with a 25 year maximum penalty available to a sentencing court. Ultimately, it appeared conceded that the court may well find exceptional circumstances to be made out, given the length of the delay until the trial is resolved, notwithstanding how serious the alleged offending is, and the potential likely sentence. That concession having been made, it remains a matter for the Court to determine whether exceptional circumstances are made out, or not, and in this regard the respondent relied on the following matters.
Strength of the prosecution case
In support of the strength of prosecution case, the respondent relies on the complainants’ and other witness statements, CCTV images, fob access records, call charge records and seized phones and a consistency of clothing worn prior to the alleged offending, and after the offending when he arrived back at his premises. The informant pointed to the evidence of post-offence CCTV footage showing the applicant carrying some of the complainant’s property, and that TE had confirmed a bag that was being carried by the applicant was stolen from him. It was submitted the prosecution case is a circumstantial one that comprises a number of discrete pieces of evidence which in combination show the applicant to have been involved in the alleged offending.
Further, the respondent relies upon inconsistencies between statements the applicant made during his police record of interview, and evidence including call charge records placing him in the vicinity of the scene. The respondent notes alleged lies told by the applicant during his interview, including:
(a)claiming he had never been to Prahran;
(b)denying knowledge of the phone number registered in his name and to his address;
(c)denying knowing the co-accused; and
(d)failing to explain how his fob was used to access the Southbank complex.
The informant indicates that there is no further forensic material to be analysed, but that he was proposing to obtain an expert opinion in relation to cell tower locations in the Prahran area, with respect to the applicant’s mobile telephone usage.
The respondent submitted that the prosecution case against the applicant should be regarded as a relatively strong circumstantial case.
Delay and likely sentence
The respondent submits that the applicant is alleged to have committed a serious home invasion, involving a firearm and a violent assault, which resulted in the victim attending hospital. Further, it was submitted that the offending was premeditated, with the offenders wearing masks and gloves and that in the context of a 25 year maximum sentence available, it would be likely that a sentence well in excess of two years imprisonment would be imposed. Thus it was submitted that even given the anticipated delay in this matter, given the seriousness of the offending, the period of remand would not be reaching the level of or exceeding a potential sentence.
The respondent accepted that there is going to be a lengthy delay between the applicant’s arrest and resolution of his trial, and that this was a significant matter. It was accepted that it was ‘very likely to be two years on remand from the date of alleged offending before a trial was commenced’, and that it was unlikely that the trial will be heard before August 2023.
Availability of treatment and bail support services
The respondent submits that the supervision offered at The Cottage is inadequate. The informant gave evidence that The Cottage is not a 24-hour secure premises and that there was a window of opportunity between night and morning before anyone would notice the applicant having absconded. In this regard, the respondent made the point that the applicant was on two sets of bail at the time of the alleged offending, and that he was on a number of court imposed orders.
Surety
Furthermore, it is submitted that at the time of the alleged offending, the applicant was on bail subject to a $10,000 surety provided by Nader Khoshaba. It is submitted that the surety failed to act as a deterrent to the applicant from further offending at that time, and that the present surety is similarly unlikely to have this effect on him. The respondent also submitted in respect of family support generally that it appeared the applicant had similar support in the past, and that this was not a new factor. It was submitted that this past support existed over the last eight to nine years, along with the fact that he had had an ongoing drug addiction over that time.
Bracelet monitoring
With regard to the proposal for bracelet monitoring, the informant gave evidence that his concerns would not be alleviated by the use of a bracelet, as it was ‘on the applicant’ to charge it and that there have been instances where people have disabled their bracelets and escaped.
Unacceptable risk
The respondent submits that when a number of factors are considered together, the applicant is an unacceptable risk, as defined by the Act. The respondent submits that the applicant has had significant issues with methylamphetamine abuse for eight to nine years, and at the time of his alleged offending was a heavy user.
It is submitted that the applicant has had opportunities to address his drug problem in the past, but has failed to take up those opportunities. The respondent argues that the applicant has shown a disregard for court orders, has breached orders in the past, and at the time of the alleged offending, was in breach of a bail curfew condition, and was on bail for two separate briefs. At the time of his alleged offending there were relatively onerous bail conditions applying to him for his supervision, along with a curfew, and a surety in respect of one of the sets of charges. Given these matters, it is submitted that the risks remain unacceptable.
Furthermore, the respondent emphasised the poor criminal history of the applicant, in which he had breached three CCOs, once in 2012 and twice in 2017. It was submitted that the risk of the applicant breaching any bail conditions remains unacceptable. It was conceded that the applicant does not have prior convictions of a similar nature to the alleged offending, in essence, meaning that he does not have prior convictions for violence, and no criminal offending in his history that is as serious as the present allegations.
The informant does not see how being on bail on this occasion was going to change anything, and that if he was on bail again he would probably commit further offences. In particular, the respondent relied on the following matters in support of its argument.
Endangering the safety or welfare of any person
Given the offending was of a serious and violent nature, involving a firearm and the complainant losing consciousness and sustaining injuries, it is submitted that the applicant poses a risk to the safety of others.
Committing a further offence whilst on bail
As the applicant was on bail for two matters at the time of the alleged offending, and is charged with bail-related offences, it is submitted that he is not likely to comply with any future bail conditions imposed. Further, he has a history of breaching community correction orders, demonstrating a clear disregard for court orders, and placing no weight on them.
Interfering with a witness or otherwise obstructing the course of justice
The respondent submits that, again due to the seriousness of the allegations, the applicant may attempt to contact or influence the complainants to prevent their cooperation with police. The informant has spoken to TE who expressed concerns should the applicant be granted bail.
Analysis and conclusions
This application is governed by the Bail Act 1977 (‘the Act’), which is to be applied and interpreted having regard to the guiding principles in s 1B(1).[15] This includes — amongst other things — maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty. The above noted, it is common ground that the applicant must satisfy the exceptional circumstances if he is to succeed in the first step of this application.
[15]Bail Act 1977 (Vic) (‘the Act’), s 1B(2).
Exceptional circumstances
In Re Strachan[16] Lasry J observed:
[16][2021] VSC 538.
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
a) The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[17]
[17]Ibid at para [27].
In determining this application I will apply the test as set out by Lasry J, as above.
In making an assessment of whether the applicant has satisfied the requirements of the exceptional circumstances test I have had regard to the relevant provisions of the Act as have been set out above, and that in order to satisfy the test the evidence must satisfy me that the circumstances put forward by the applicant must establish that the test is made out. Further, I am well aware that the test can be satisfied by a combination of factors, observing that whilst each of the factors might individually be regarded as ordinary, when viewed together, may satisfy the test. Further, I have considered and applied the observations expressed in Roberts v The Queen[18] as set out by Lasry J in Re Strachan.[19]
[18][2021] VSCA 28, [9].
[19][2021] VSC 538, [28].
The delay that will be experienced before this matter is heard is a key feature of the applicant’s argument that he should be granted bail. The applicant has already been on remand for almost six months, with the committal hearing listed for 3 May 2022. By then he will have spent between 8-9 months in custody. Thereafter he faces a significant delay until the matter will be heard in the County Court. When that will occur is uncertain but it appears that it is likely a trial will not be heard until at least mid-2023, if not longer. That would likely mean the applicant will spend at least two years on remand before resolution of his trial, if not a longer period.
In oral submissions, the applicant emphasised the guiding principles of the Act, as set out in s 1B, and submitted that the presumption of innocence and the right to liberty should be evaluated in the context of the delay expected before the applicant’s trial is held. It was submitted that ‘the delay, though extraordinary, cannot be regarded as normal’. I agree with the submission that the delay the applicant is likely to experience takes the case out of what normally should be expected.
In the context of the anticipated delay, some broad assessment of the strength of the prosecution case must be undertaken. The prosecution argues that when the circumstantial evidence is considered, the case should be regarded as relatively strong. On the other hand, the applicant notes the circumstantial nature of the case, the lack of direct identification, matters of credibility relating to the complainants and the applicant’s denials of his knowledge, and involvement, in the alleged events. The applicant submits there are ‘triable issues’. In my opinion it cannot be said at this stage that the case against the applicant is weak. There are a number of facts and circumstances that, when considered in combination, may well satisfy a jury of the applicant’s involvement in the alleged events. However, I also note that there may be triable issues with respect to the applicant’s knowledge or belief that the co-accused had, or possibly had, a firearm, and either was prepared to, or intended to use it, or use the physical violence that in fact took place. These circumstances may of course impact on the seriousness of the events that took place, and ultimately be relevant to the penalty that might be imposed. The outcome of the committal hearing may illuminate some of these issues. At that stage any grant of bail can be reconsidered.
Of further relevance is that the applicant has been accepted into a four month program at The Cottage, located in regional Victoria. The applicant placed a combination of written evidence, as well as oral evidence from the forensic intake manager of The Cottage, who explained the role of The Cottage and the program for which the applicant has been found suitable. A number of past bail decisions of this Court have found favour with an approach that in some instances there can be significant benefits in bailed persons having an opportunity to attend such courses while awaiting court hearings. This appears to me be such a case as the applicant can complete much of the proposed four month program before the committal hearing on 3 May 2022.
Given the evidence placed before the Court in this application, and accepting the prosecution case for the particular purpose, there appears to be a link between the applicant’s alleged offending behaviour, and the reasons why he can be relevantly treated at The Cottage.
I note that the applicant raised a number of additional reasons supporting his application for bail, which I have discussed above. I have taken each one these into account.
In all the circumstances, having weighed the factors, and taken into account the requirements of the Act, I have formed the opinion that the applicant has satisfied the exceptional circumstances test, justifying a grant of bail. However, that is not the end of the matter. The Court is obliged to consider the second step of the required considerations, being whether the respondent has satisfied the Court that the applicant is an unacceptable risk as understood by the Act, and as discussed above.
Unacceptable risk
Having considered all of the issues placed before the court, and balancing the considerations, I am not satisfied that the respondent has established that the applicant remains an unacceptable risk as defined by the Act. A combination of the factors discussed above has persuaded me to this position. I am further of the opinion that sufficient conditions can be placed on a grant of bail to ameliorate the risk to one that is acceptable in all the circumstances required to be considered.
In particular, the proposal for residential treatment is of significance to the reduction of risk. Having heard and read the evidence presented, including that of Mr Gilhooley, I am satisfied that the program about which he spoke, is capable of achieving its objectives, of course, providing the applicant complies with the program, and sees it through. I am of the opinion that balancing the risk that is always present in a bail decision, the applicant should be adequately supervised for the period of his residency in the program. It is of particular importance that the informant will be immediately notified if the applicant absconds, or otherwise breaches his bail conditions.
In coming to this decision I have taken into account the applicant’s past criminal history, including instances where he has not previously complied with court orders. It is however notable that the applicant does not have prior convictions for violence. For the reasons discussed above, in the circumstances of this case, I do not regard the applicant to be an unacceptable risk to the safety of the complainants in this matter, nor to other members of the community more generally.
Furthermore, it appears to me that on the basis the applicant satisfies the requirements of the Cottage program, he will not be left unsupervised for the period leading up to the resolution of the period leading to the committal, at which time the committal Magistrate has the power to review the applicant’s bail, and of course, his adherence, or otherwise, to it. As well as providing a degree of professional supervision for at four months, I expect that the applicant will remain with the continuing family support the court has been informed about.
I note that the applicant placed a proposal before the Court that he wear an ankle bracelet, capable of providing evidence of his physical location when wearing the device. Whilst I accept that there may be cases where such a device can prove a valuable adjunct to bail conditions, in the applicant’s circumstances and in the circumstances of the present case, I do not consider his present and future situation with respect to a grant of bail to presently justify the wearing of such a device. The affixing of an ankle bracelet to a person’s body represents a considerable imposition on privacy and freedom, and to take the step of imposing a permanently worn bracelet for a significant period of time is a decision warranting the most careful consideration, and not to be taken lightly. In forming this view I have taken into account a key purpose of the device is to contribute to reducing the risk of flight by identifying the applicant’s location should he abscond, or to identify breaches of other conditions bearing a connection to his physical location at any one point of time. In his circumstances I do not regard the applicant as a risk of flight, and should he breach any residential conditions by absconding from The Cottage, I am satisfied his absence will be picked up quickly by the usual means of day to day attendance, and surveillance. I am satisfied that any absence will be reported to the informant, or his delegate, quickly.
In passing, I make the observation that at some point in the future, the results of a tracking record of such a device may need to be considered in the context of an allegation that a relevant person has committed a criminal offence whilst on bail while wearing such a device. If the use in evidence of a person’s location is an intended or unintended consequence of the use of such devices, then the admissibility of such evidence, obtained by way of a compulsorily attached device, might need to be the subject of legislative attention.
There are also other conditions that will add to the amelioration of risk and I have taken them into account, and will attach them to a grant of bail.
Accordingly the applicant will be admitted to bail on his own undertaking there being a surety in the amount of $14,000 provided by his brother Nader Khoshaba, and on the following special conditions:
(a)He attend the Melbourne Magistrates’ Court on 3 May 2022 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b)He released into the custody of a staff member at The Cottage at 6-8 St Andrews Rd, Shepparton VIC 3630.
(c)He reside at the Cottage until the conclusion of the residential treatment program or until further order of a court.
(d)The applicant must not leave the premises of the Cottage except in the company of a staff member of The Cottage, or with permission of the Program Manager, or his delegate.
(e)The applicant must engage in treatment and comply with all lawful directions of the staff at The Cottage.
(f)He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(g)He submit to drug testing as requested by any member of staff at the Cottage not less than once per week. All test results are to be reported to the informant.
(h)He report every Monday to Shepparton police station.
(i)He not contact, directly or indirectly, the co-accused, being Manuera Ihaka, for the duration of the bail period.
(j)He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(k)He not leave the State of Victoria.
(l)He surrender any passport he may have to the informant within 24 hours.
(m)He not attend any points of international departure.
(n)He reappear before the Court for judicial monitoring to review his compliance with this order at 9:30am on 9 March 2022, and any further dates this Court appoints during the course of this order.
6
0