Re Kuol
[2021] VSC 598
•3 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0228
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by KUOL KUOL |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2021 |
DATE OF JUDGMENT: | 3 September 2021 |
DATE OF REVISED REASONS: | 17 September 2021 |
CASE MAY BE CITED AS: | Re Kuol |
MEDIUM NEUTRAL CITATION: | [2021] VSC 598 |
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CRIMINAL LAW — Application for bail — Charges of attempted robbery, attempted theft, resist police, committing an indictable offence whilst on bail, contravening a conduct condition of bail and property damage — Likely that pre-sentence detention would exceed any custodial sentence imposed — No prior criminal history — Appropriateness of proposed bail address — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA — Cases cited: Re Whiteside [1999] VSC 413; Re KE [2021] VSC 175; Roberts v The Queen [2021] VSCA 28.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr James Mitchell | Michael J. Gleeson & Associates |
| For the Respondent | Mr Peter Murphy | Victoria Police |
HIS HONOUR:
This is an application for bail by Kuol Kuol (the ‘applicant’). The applicant is 23 years of age and has no criminal history. He has been on remand since 28 August 2021, a period of six days as at the day of this application, having been charged by the informant Constable Jacob Kitching with attempted robbery,[1] attempted theft,[2] resisting arrest,[3] committing an indictable offence whilst on bail,[4] contravening a conduct condition of bail[5] and property damage[6] (‘the informant Kitching matter’). The charges relate to events alleged to have occurred in the early hours of that same morning. The applicant’s remand on these charges represents his first time in custody.
[1]Contrary to s 321M of the Crimes Act 1958 (Vic).
[2]Contrary to s 321M of the Crimes Act 1958 (Vic).
[3]Contrary to s 31(1)(b) of the Crimes Act 1958 (Vic).
[4]Contrary to s 30B of the Bail Act 1977 (Vic).
[5]Contrary to s 30A(1) of the Bail Act 1977 (Vic).
[6]Contrary to s 9(1)(c) of the Summary Offences Act 1966 (Vic).
The applicant was refused bail in the Magistrates’ Court on 28 August 2021, the same day as his arrest. The basis for the refusal was that the applicant failed to show exceptional circumstances and, if granted bail, was considered to be an unacceptable risk of committing an offence or endangering the safety and welfare of any person. As I have noted in other decisions, the issue of risk does not need to be considered in circumstances where an applicant has not discharged the onus of establishing either exceptional circumstances or a compelling reason justifying the grant of bail.
On 30 August 2021, the applicant filed an application for bail in this Court. The matter is next listed for mention in the Sunshine Magistrates’ Court on 9 September 2021. It is unclear when the contested hearing for the informant Kitching matter will proceed. Presumably, a contest mention will need to be held, and experience suggests that the contested hearing of the matter is unlikely to occur before sometime in early 2022.
The alleged offending
At about 1:00am on 28 August 2021, LD was riding his bike through Melton. It is the prosecution case that he was approached by the applicant, who demanded LD’s bike. LD stepped off the bike as the applicant grasped its handles, stating that he would ‘bash’ LD if he did not hand the bike over. It is alleged that the applicant repeated this threat five or six times over before a struggle commenced between the two, causing damage to the bike. A third party attempted to intervene without success.
At about 1:01am, police patrolling the area observed what they believed to be an altercation between three men. They approached the scene, at which time the applicant said, ‘fuck that’, and fled on foot.
The informant pursued and caught up to the applicant, grabbing hold of him by his shirt. It is alleged that the applicant ‘squared up’ with his fists clenched, such that the informant believed he was getting ready to fight. A struggle ensued as the informant attempted to arrest the applicant, ultimately forcing him to the ground and subduing him with ‘OC’ spray.
The applicant was arrested and transported to Melton Police Station. He provided a ‘no comment’ record of interview and was remanded in custody.
Outstanding matters
At the time of the alleged offending in the informant Kitching matter, the applicant was on bail in one matter and on summons in another two. These matters can be summarised as follows.
Informant Carr (bail)
At 6:20 pm on 23 March 2020, police were conducting patrols in Melton when they observed an unregistered Honda coupe with no number plate affixed to the rear. The vehicle went through a red light at the intersection of High Street and Barries Road, whilst driving on the wrong side of the road into oncoming traffic.
Police activated emergency sirens and lights and pursued the Honda, which again accelerated into oncoming traffic, leading to an approaching vehicle swerving onto a nature strip to avoid a collision. Police deactivated their sirens and lights to deescalate the situation, although kept in pursuit of the Honda.
Police were pursuing the Honda at a speed of 80km/h in a 60km/h zone, when the Honda stopped, accelerated away, and then pulled over again approximately one minute later. Police exited their vehicle and identified three occupants in the Honda, including the applicant, who was in the driver’s seat.
The applicant was arrested and transported to the Melton Police Station, where he was charged with reckless conduct endangering life, dangerous driving (two charges), driving after being directed by police to stop (two charges), entering an intersection against a red traffic light, using an unregistered vehicle, using a vehicle without numberplates and dangerous driving whilst being pursued by police.
The applicant was granted bail on the conditions that he reside at [redacted] in Brookfield (‘the family home’), remain at the family home between 10:00pm and 6:00am, and present at the front door of the family home during curfew hours upon request from police.
Informant Roberts (summons)
At 9:20pm on 13 September 2020, police observed the applicant and an associate exiting a 7-Eleven store in Melton West. Police attempted to get the applicant’s attention by calling out, but the applicant and his associate proceeded to enter their vehicle and drove away with the applicant in the driver’s seat.
Police followed the applicant’s vehicle to a nearby carpark, and asked to see the applicant’s license. The applicant refused, stating that police did not have a reason to pull him over. Police advised that their reason was a possible breach of COVID-19 curfew restrictions, but the applicant maintained his position and continued to refuse to produce his licence, stating ‘are you going to shoot me now’ and ‘this is fucking racism shit’, before hitting the window of his vehicle.
The applicant allegedly resisted police as they attempted to arrest him, leading to one of the arresting officers sustaining a minor cut lip. He subsequently refused to participate in a preliminary breath test and was released pending summons.
On 10 November 2020, the applicant was charged on summons with failing to produce his license, refusing to undergo a preliminary breath test within three hours of driving, failing to display ‘P’ plates and resisting arrest.
Informant Meers (summons)
On the evening of 18 April 2021, the applicant underwent an evidentiary breath test at a testing station on Coburns Road in Melton. He received a result of 0.105 grams per 210 litres of exhaled air.
On 17 May 2021, the applicant was charged on summons with driving a motor vehicle with more than the prescribed concentration of alcohol on his breath, and having more than the prescribed concentration of alcohol on his breath within three hours of driving.
The applicable legislation
Guiding principles
This application is governed by the Bail Act 1977 (Vic) (the ‘Act’). In interpreting and applying the Act, the Court is required to take into account the guiding principles set out in s 1B(1).[7] This includes, amongst other things, maximising community safety and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.[8]
[7]Bail Act 1977 (Vic), s 1B(2).
[8]Ibid, s 1B(1).
Exceptional circumstances
The applicant is accused of committing a Schedule 2 offence whilst on bail for a Schedule 2 offence.[9] Bail must therefore be refused unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.[10] In considering whether this test has been satisfied, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those set out in s 3AAA(1) of the Act.[11]
[9]Ibid, schedule 2, clause 22(h); Ibid, schedule 2, clause 30.
[10]Ibid, ss 4AA(2)(c), 4A(1)-(2).
[11]Above n 7, s 4A(3).
The test of ‘exceptional circumstances’ sets a high standard, although not one that is impossible to reach.[12] In Re KE, Kaye JA stated:[13]
In essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.
[12]Re Whiteside [1999] VSC 413, [10] (Warren J).
[13][2021] VSC 175, [50] (Kaye JA).
The fact that exceptional circumstances might be found to exist is not itself sufficient to grant bail. Those circumstances – if established – must also justify the grant of bail. In Roberts v The Queen, their Honours Maxwell P, Niall and Emerton JJA discussed a number of factors commonly relied upon to amount to the threshold of exceptional circumstances, and said:[14]
What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending…
It is the perceived need to avert or mitigate such injustice which justifies the grant of bail — provided always that the circumstances can properly be characterised as exceptional.
[14][2021] VSCA 28, [47]-[48] (Maxwell P, Niall and Emerton JJA).
Unacceptable risk
If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the ‘unacceptable risk test’.[15] That is, bail must 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 risk is an unacceptable risk.[16] In considering whether any relevant risk is unacceptable, the Court must again have regard to 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.[17]
[15]Above n 7, s 4D(1)(a).
[16]Ibid, ss 4E(1)-(2).
[17]Above n 7, s 4E(3).
Family violence risks
In considering whether to release the applicant on bail, the Court is required to make inquiries with the prosecutor as to whether there is in force a family violence intervention order (‘FVIO’), a family violence safety notice or a recognised domestic violence order in force against the applicant.[18]
[18]Ibid, s 5AAAA(1).
The paperwork filed with the Court confirms that the applicant is currently the respondent to final FVIO naming his sister as the affected family member. The FVIO was made in the Sunshine Magistrates’ Court on 7 April 2021, and includes full conditions, with limited exceptions including permitting communications regarding attendance at the family home. The FVIO prohibits the applicant from going within 200 metres of the family home if the affected family member is present and remains in effect until 6 April 2022. I will return to how the FVIO would affect potential conditions of bail in this matter.
The applicant’s personal circumstances
The applicant is 23 years old. He has a longstanding speech impediment for which he received intensive therapy as a child. That therapy ceased sometime during the applicant’s childhood, when his family moved overseas temporarily. The applicant reports that the impediment continues to impact on his daily functioning, to the extreme that, in or around December 2018, he withdrew from university studies due to low self-esteem arising from the condition. Around a similar time, the applicant commenced regular alcohol use which evolved into a daily habit, which on occasion has resulted in blackouts and memory loss. The applicant’s intake of alcohol was clearly substantial. The applicant attributes his involvement in the criminal justice system, in part, to his problematic relationship with alcohol.
Separate to these matters, the applicant reports a history of symptoms consistent with anxiety. He has never received formal treatment either for substance use or his mental health.
Prior to his remand, the applicant was residing in Brookfield with his family. He has no criminal history.
The applicant’s contentions
Mr Mitchell on behalf of the applicant relied on a number of matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail. The respondent conceded that it is open to the court to find that the applicant has established exceptional circumstances justifying the grant of bail. In brief summary, the matters relied upon to establish exceptional circumstances are as follows:
Criminal history
The applicant has no criminal history. It is his first time in custody.
Youth
The applicant is a young person, being 23 years old.
Stable accommodation
The applicant proposes to continue residing at the family home in Brookfield if bail is granted, subject to the FVIO prohibiting him from attending the home when his sister is present being accommodated.
Employment
The applicant is said to have casual employment available to him as a factory hand with ‘Natrio’, near Geelong.
Special vulnerability
The applicant speaks with a stutter, which is said render him more vulnerable in custody.
Availability of treatment or bail support services
The applicant has been assessed as suitable for case management by the Sunshine team of the Court Integrated Services Program (‘CISP’), if granted bail. The applicant has not previously had any involvement with CISP, but has expressed a desire to access support in the community for issues related to excessive alcohol consumption, anxiety and low self-esteem. The CISP report, as these reports so often do in recent times, sets out a list of prospective activities that the applicant will no doubt be encouraged to participate in if he were to be released on bail.
Delay and likely sentence
In my view, the most significant matter said to establish exceptional circumstances is the amount of time the applicant will spend in custody between now and the date of the contested hearing of this matter, which is likely to be not before early 2022, and the likely prospect of the applicant receiving a custodial sentence. It was argued, and I think correctly so, that a non-custodial sentence would be likely and certainly open in the event that the applicant was found guilty of the charges in the informant Kitching matter. If the applicant were to remain in custody until January or February of next year, there is a significant prospect that his pre-sentence detention would exceed any sentence imposed on him.
COVID-19 and onerous conditions of custody
It would appear that the applicant has been subjected to particularly onerous conditions in custody due to the COVID-19 pandemic, and is currently undergoing a 14-day quarantine period which commenced upon him being remanded in custody on 28 August 2021. It was submitted that this experience has had a salutary impact on him and he now appreciates the consequences of breaching court orders.
Unacceptable risk
As to the question of risk, it was submitted that any unacceptable risk alleged by the respondent could be moderated to an acceptable level with appropriate conditions of bail. Mr Murphy, on behalf of the respondent, ultimately appeared to all but accept this submission at the hearing of the application.
The respondent’s contentions
The respondent conceded that it is open to the Court to find that the applicant had discharged the burden of demonstrating exceptional circumstances that justify the grant of bail. It was the respondent’s initial position that the applicant posed an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail, however at the hearing of this application submissions centred more on appropriate conditions of bail to address such risk. There is no doubt that the offending is in its own way serious and is to a degree violent and random, matters to which a Magistrate will no doubt have regard.
Criminal history, bail compliance history and outstanding matters
It was submitted on behalf of the respondent that while the applicant has no formal criminal history, he is currently facing charges in four separate matters, inclusive of the present matter. The applicant was also on bail at the time of the present alleged offending, which occurred in the early hours of the morning during what was supposed to be curfew hours as far as the applicant was concerned. That raises the issue of whether or not the applicant has the capacity to comply with conditions of bail.
Complainant’s views on bail
It is of note that the complainant in the informant Kitching matter has expressed opposition to the applicant being granted bail. The complainant does not have his driver’s license, so his only means of getting to and from work is using his bike. He is frightened to ride his bike due to the alleged offending and is also unable to do so at this time due to the applicant damaging the bike. The complainant presently has to walk to and from work.
Family violence intervention order in force
Ultimately, the primary issue the respondent raised was the appropriateness of the family home as the applicant’s proposed residential address. The applicant is currently the named respondent in a FVIO where his sister is the affected family member. Also in issue was the fact that the applicant’s 16-year-old brother, who also resides at the family home, is currently facing criminal charges and is said to associate with gang members.
Mr Mitchell submitted at the hearing of this application that, based on his instructions, the applicant’s sister is able to remain away from the family home while the applicant is present there. Mr Mitchell submitted that, as such, the proposed residential address is satisfactory.
Conclusion
At the hearing of this application, Mr Murphy on behalf of the respondent conceded that it is open to me to find that the applicant has established exceptional circumstances that justify the grant of bail. The focus of submissions at the hearing of the application were on appropriate conditions of bail. In the circumstances, I am satisfied that the applicant has established exceptional circumstances that justify the grant of bail and that any risk the applicant poses within the meaning of the Act can be reduced to an acceptable level with the imposition of appropriate conditions of bail.
Notwithstanding the respondent’s concerns about the applicant’s proposed residential address, I am satisfied in view of Mr Mitchell’s instructions that the applicant’s proposed residential address is satisfactory. The applicant’s sister, who is the affected family member in the FVIO where the applicant is the respondent, is able to remain away from the premises while the applicant is present.
I note the complainant’s concerns about the applicant being granted bail. I can assure the complainant that, should there be any further allegations of the applicant behaving in an unlawful manner towards him or of applicant otherwise breaching his bail conditions, the applicant will find himself immediately returned to custody.
I will therefore grant bail and make the following orders:
1.The said Kuol Kuol (‘the applicant’) be admitted to bail on his own undertaking and with the following conditions:
(a)The applicant reside at [redacted], Brookfield in the State of Victoria (the ‘place of residence’), and not change his place of residence without the leave of this Court;
(b)The applicant not leave his place of residence between the hours of 9:00 pm and 6:00 am (‘curfew hours’);
(c)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informant First Constable Jacob Kitching or his nominee, being an authorised member of Victoria Police;
(d)The applicant report to the Officer in Charge of the Melton Police Station or their nominee each Monday, Wednesday and Friday between the hours of 9:00 am and 7:00 pm;
(e)The applicant not contact or associate with, directly or indirectly, any witness for the prosecution other than the informant or his nominee;
(f)The applicant not drive a motor vehicle;
(g)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(h)The applicant not consume alcohol;
(i)If the informant or the informant’s nominee has reasonable cause to suspect the applicant has consumed alcohol, the informant or the informant’s nominee may direct the applicant to undergo a preliminary breath test and the applicant must undergo a preliminary breath test if so if so directed;
(j)The applicant abide by the directions of the Chief Health Officer;
(k)The applicant engage in treatment and comply with all lawful directions of the Court Integrated Services Program (‘CISP’);
(l)The applicant comply with all current Family Violence Intervention Orders in which he is the respondent;
(m)The applicant not leave the State of Victoria;
(n)The applicant not attend any points of international departure;
(o)The applicant surrender any current passport or travel document in his possession or control to the informant or his nominee within 24 hours of being released on bail;
(p)The applicant appear:
(i)At this Court, for the purpose of judicial monitoring, on 17 September 2021 at 9:30 am and thereafter as directed by this Court; and
(ii)At the Magistrates’ Court in Sunshine on 9 September 2021 at 9:30 am and thereafter as directed by the presiding Magistrate.
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