Re Kuron
[2022] VSC 236
•16 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0099
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by NOEL KURON |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 May 2022 |
DATE OF JUDGMENT: | 16 May 2022 |
CASE MAY BE CITED AS: | Re Kuron |
MEDIUM NEUTRAL CITATION: | [2022] VSC 236 |
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CRIMINAL LAW – Bail – Applicant charged with aggravated burglary, contravention of a Family Violence Intervention Order, committed an indictable offence whilst on bail, theft, unlawful assault and contravention of a bail conduct condition – Requirement to show exceptional circumstances justifying grant of bail – Whether exceptional circumstances exist justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Exceptional circumstances demonstrated – Risk not unacceptable – Bail granted subject to strict conditions – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Clamart | Matthew White and Associates |
| For the Respondent | Mr C Gauld | Victoria Police |
HER HONOUR:
By application dated 22 April 2022 Noel Kuron applied for bail.
On 4 May 2022 I granted the applicant bail subject to conditions, indicating that I would subsequently publish reasons for so doing. These are those reasons.
The alleged offending
On 2 December 2021 the applicant was made the respondent to a family violence intervention order (‘FVIO’) in which his ex-partner, LN and their child, MK, were the protected family members. The FVIO was served on the applicant on 31 December 2021 and was a final, non-contact order. The limited exceptions to non-contact were that permitted by a Child Protection Order, written agreement about child arrangements or communication through a lawyer or police.
In April 2022 LN was living with MK in a secure apartment provided by the family violence service Safe Steps. At about 8.50pm on 15 April 2022 the buzzer of LN’s apartment was activated and a voice said ‘sorry, wrong number’. A short time later the applicant climbed up to LN’s balcony and entered her apartment (charge 1 – aggravated burglary – person present). He went to LN’s bedroom where MK was sleeping, picked the child up and said words to the effect of ‘thank you for crying, you told me where you were’ (charge 2 – contravene FVIO intending to cause harm or fear).
The applicant then took LN’s phone from her and tried to hit her face, but did not make contact (charge 5 – unlawful assault). About 15 minutes later he left the apartment with LN’s phone (charge 3 – theft).
At the time of the alleged incident the applicant was subject to bail, a condition of which was that he comply with the FVIO (charge 4 – commit indictable offence while on bail and charge 6 – contravene bail conduct condition).
The applicant was arrested on 16 April 2022. He denied knowledge of LN’s address and involvement in the incident. The applicant was remanded in custody and, on 16 April 2022 refused bail in the Magistrates’ Court of Victoria. The learned magistrate was satisfied that the applicant had demonstrated exceptional circumstances that justified the grant of bail but found him to be an unacceptable risk of committing an offence while on bail, endangering the safety or welfare of any person, and interfering with a witness or otherwise obstructing the course of justice.
Other matters
The charges for which the applicant was on bail at the time of the alleged incident on 15 April 2022 arise from two separate alleged incidents.
The first occurred on 16 May 2020 (informant Yon). On that day the applicant was charged with two counts of possession of a drug of dependence.
It is alleged that at about 1.02am the applicant was with Bedeit Gai in a parked car which took off at speed when a marked police vehicle drove past. Police intercepted the car shortly afterwards and observed a strong smell of cannabis to emanate from it. Upon searching the car, police found two white medicine bottles containing 50 white tablets containing 2mg of Alprazolam (charge 1) and a white medicine bottle containing 37 tablets containing Anastrozole 1mg (charge 2).
The second occurred between 24 and 26 March 2022 (informant Bussey). On 26 March 2022 the applicant was arrested and charged with seven counts of contravention and persistent contravention of a FVIO, two counts of unlawful assault, three counts of property damage, possession of a drug of dependence and three counts of committing an indictable offence while on bail.
It is alleged that between 24 and 26 March 2022 the applicant contacted LN by both telephone and Facetime video and also attended at her address. A second adult, CB, was present at that address when he attended on 26 March 2022. On that occasion, the applicant and LN had a verbal argument in the bedroom in the presence of MK. LN left the room. When she attempted to re-enter it, the applicant used a broomstick to attempt to barricade himself and child inside. The broomstick broke in the process.
LN then called 000. The applicant grabbed her wrist and tried to take the phone away. The applicant also pushed CB to the chest with two hands. He then poured liquid on both LN and CB before throwing an empty beer bottle in the direction of CB. He later sprayed CB with urine from a bottle after he visited the bathroom. The applicant left the premises and made a further phone call to LN. Upon his return a little later, he was arrested by police. He was found to be in possession of two tablets in a blister packet labelled Valium diazepam 5mg. The applicant does not hold a prescription for that medication.
During the time he was held in a cell at the Melbourne West Police Station, the applicant ripped the duress button out of its holder.
Further, as at 15 April 2022 the applicant was on summons for one count of criminal damage and two counts of unlawful assault, alleged to have occurred on 9 November 2021 (informant Moffatt).
It is alleged that about 1.00 am on 9 November 2021 the applicant snatched LN’s phone out of her hand and put her in a headlock. He then smashed the phone against the ground and wall. It was this incident that triggered the police to apply for the FVIO protecting LN and MK.
The matters arising from 15 April 2022 and the informant Bussey matters are listed for contest mention on 8 June 2022 at the Melbourne Magistrates’ Court. The informant Moffat matter is listed for further mention at the same time. Applications to revoke bail in the Bussey and Yon matters are also listed that day. The informant Yon matters are listed for mention on 16 June 2022 at the Heidelberg Magistrates’ Court.
Legal considerations
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[1] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]Bail Act 1977 (‘The Act’), s 4AA(2). The applicant is charged with a Schedule 2 offence (aggravated burglary/offences against the Act) while on bail for another Schedule 2 offence (offences against the Act).
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[2] In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1).[3] The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[4]
[2]The Act, s 4E(1).
[3]The Act, s 4E(3)(a).
[4]The Act, s 4E(3)(b).
Section 5AAAA(2) of the Act requires the Court to consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a condition or the making of a FVIO.
The Court must also take into account the guiding principles set out in s 1B(1) of the Act.
Applicant’s personal background
The applicant is 27 years old. He was born in Sudan, arriving in Australia in 2006 at the age of 12 years with his three sisters and one brother. The applicant’s father had died of cancer in Sudan in 2004. Thereafter the applicant’s mother relocated the family to Egypt in pursuit of better educational opportunities. She was killed in Egypt in an incident outside the United Nations Embassy in which military police opened gunfire on gathered people.
Upon arrival in Australia, the applicant and his siblings lived in Wagga Wagga. He moved to Melbourne to complete high school. Thereafter the applicant completed two years of an aeronautical engineering degree at RMIT before financial difficulties forced him to cease study and obtain employment. He has worked in retail roles and also as a model. The applicant’s sisters now live in Sydney. His older brother was found dead in the Werribee Creek at the age of 30 in July 2020.
Since about 2017 the applicant has used cannabis and mood-stabilising drugs such as Xanax. A report authored by Warren Simmons, a consulting psychologist, opines that the applicant is experiencing an extended grief reaction that may at times reach the level of depression.
The applicant and LN had been in a relationship for about two years. LN became pregnant shortly after they met. MK is now 17 months old.
The applicant has no prior criminal history.
Exceptional circumstances
The respondent conceded that the circumstances relied upon by the applicant were capable of demonstrating exceptional circumstances that justified the grant of bail.
I am satisfied that the combination of circumstances do amount to exceptional circumstances. I record them, briefly, as follows.
First, the prosecution case with respect to aggravated burglary is very weak. At the hearing of the application it was submitted, without demur, that as a result of negotiations the charge is likely to be withdrawn. With respect to the charges of contravening the FVIO, it was submitted that some of the contact with LN may fall within one of the exceptions permitted by its terms.
Second, the applicant has no criminal history. With the exception of a short period following his arrest with respect to the Bussey matters on 26 March 2022, the applicant has never previously been in custody.
Third, as a consequence of COVID-19 the conditions of custody are more onerous than they otherwise would be. Further, the psychological report of Mr Simmons states that the mental wellbeing of the applicant deteriorated following his remand. The applicant has spent much of the remand period in the psychiatric unit at the Melbourne Assessment Prison.
Fourth, if the matters proceed to contest in the Magistrates’ Court, they are unlikely to be heard before 2023. There is a danger that the period of remand would exceed the length of any likely sentence. And, whether the matters resolve or proceed to contest, a community correction order is not outside the range of possible sentences.
Fifth, the applicant has the opportunity to live with his aunt and cousin. His cousin, Filmon Peter, gave evidence at the hearing of the application. The respondent did not submit that the proposed bail address was inappropriate.
Sixth, the applicant relied upon a letter from People Creative Agency Pty Ltd, which confirmed that he has the opportunity to resume work as a model.
Seventh, the applicant has been assessed by the CISP Remand Outreach Program (‘CROP’) and is recommended for community referral. Although the report, dated 3 May 2022, stated that ongoing case management by the CISP team was not required and identified a number of community supports that the applicant could use, it was submitted at the hearing of the application that as a result of discussions between the applicant’s solicitor and a CROP officer, there would be a level of ongoing supervision of the applicant in addition to mental health treatment.
Unacceptable risk
The respondent submitted that the applicant was an unacceptable risk of three of the four s 4E(1)(a) factors. It was not submitted that he was a flight risk.
In particular, it was submitted that there are allegations of family violence against LN on three separate occasions, that all such allegations occurred despite the existence of the FVIO and that the instant allegations occurred while on bail, one of the conditions of which was that the applicant comply with the FVIO.
Given this history, I am of the view that there is a risk that the applicant will commit family violence against LN and MK and thereby endanger the safety or welfare of any person, commit an offence while on bail and interfere with a witness. However, after careful consideration, I am of the view that there are conditions of bail which will mitigate that risk to render it not unacceptable. In forming that conclusion I note that the applicant will, for the first time, have the benefit of the supports offered through CROP, particularly the Men’s Referral Service and grief and loss counselling. The writer of the CROP report noted that the applicant understood the FVIO conditions and stated that, in the future, he would comply with them. The applicant stated, through his solicitor, that he would seek legal advice as to the facilitation of contact with MK. Further, the applicant’s cousin, Mr Peter, told the court that he would inform the police of any contact the applicant made with LN or MK upon becoming aware of it.
I further note that the applicant has now experienced a period of weeks on remand and there is no doubt that any breach of the FVIO will return him to custody. In this regard, the conditions of bail will include judicial monitoring.
Conclusion
The applicant is admitted to bail on his own undertaking, with the following conditions:
(a) Reside at [redacted] (‘the bail address’);
(b)Notify the informant of any proposed change to the bail address at least 24 hours in advance of such change;
(c)Not leave the bail address between the hours of 9:00pm and 6:00am (‘the curfew hours’) unless directed to do so by a staff member of the Court Integrated Services Program (‘CISP’) or a member of Victoria Police;
(d)Present at the front door of the bail address at any time between the curfew hours when requested to do so by a member of Victoria Police;
(e)Report to the Officer in Charge at Sunshine Police Station daily between the hours of 7:00am and 9:00pm;
(f)Surrender passports (if any) to the informant within 24 hours of release, and not apply for any other passport;
(g) Not attend any points of international departure;
(h)Not leave the State of Victoria without first obtaining the leave of a court;
(i)Comply with the Family Violence Intervention Order made on 2 December 2021 in the Magistrates’ Court of Victoria at Melbourne (Case No. M12334313);
(j)Engage in treatment with the CISP and comply with the lawful directions of CISP staff whilst engaging in treatment;
(k)Appear before this Court by means of audio-visual link for judicial monitoring to review compliance with bail at 9:30am on Wednesday, 18 May 2022, and thereafter as directed by this Court; and
(l)Attend the Magistrates’ Court of Victoria on 8 June 2022, either in-person or by means of audio-visual link as determined by that Court.
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