Re Lado
[2020] VSC 132
•20 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0043
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Emmanuel LADO |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 March 2020 |
DATE OF JUDGMENT: | 20 March 2020 |
CASE MAY BE CITED AS: | Re Lado |
MEDIUM NEUTRAL CITATION: | [2020] VSC 132 |
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CRIMINAL LAW – Bail – Robbery, intentionally causing injury, and committing indictable offence whilst on bail – 19 year old offender – Prior convictions in Children’s Court for armed robbery, carjacking and affray – Whether exceptional circumstances exist – Availability of CISP support but unfavourable Youth Justice report – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D De Witt | Greg Thomas Barrister & Solicitor |
| For the Respondent | Mr N Moran | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
Introduction
Emmanuel Lado, the applicant, seeks bail in respect of charges of robbery, theft, intentionally causing injury, recklessly causing injury, unlawful assault, assault in company and committing an indictable offence whilst on bail.
Background
The applicant has been in custody since the day of his arrest on 18 February 2020. The charges relate to allegations of events said to have occurred on 25 January 2020. The matter is next listed for mention at the Melbourne Magistrates’ Court on 9 April 2020. I was informed by Mr De Witt for the applicant during the application that enquiries have revealed that a contest mention may be heard on 2 June and a contested hearing should be able to proceed on about 4 August 2020.
At the time of the alleged offending, the applicant was on bail in respect of two separate groups of charges. One group of charges had been laid on 25 December 2019. These were charges of possessing a drug of dependence (two charges), contravening a conduct condition of bail and committing an indictable offence whilst on bail. The applicant was also on bail for charges laid on 23 September 2019, being theft of a motor vehicle, dangerous driving, failing to stop a motor vehicle on request and unlicensed driving .
Those two sets of charges are yet to be finalised.
It is agreed that because the applicant is charged with committing a Schedule 2 offence[1] while on bail for a Schedule 2 offence,[2] bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.
[1]Bail Act 1977 (Vic) (‘Act’), Schedule 2, item 30.
[2]Ibid.
The applicant applied for bail on 5 March 2020 in the Melbourne Magistrates’ Court. That application was refused on the basis that the applicant had failed to demonstrate exceptional circumstances that justify the grant of bail.
The Alleged Offending
At 5.07am on 25 January 2020, CCTV footage depicted three males in a lift and then exiting a building at 95 Napier Street in Fitzroy. It is the prosecution case that those three males were the applicant and the two co-accused in this matter; Dennis Lado (‘Lado’) and Ammer Humed (‘Humed’). Lado is the applicant’s older brother.
In summary, between 5.15am and 5.20am that morning, it is alleged that David Hart was walking south along George Street Fitzroy approaching the intersection of Gertrude Street when he observed three males walking to the east along Gertrude Street approaching the same intersection. Mr Hart crossed Gertrude St and continued along George St towards Victoria Parade. Shortly afterwards, he was approached from behind by a person said by the prosecution to be Lado. Lado is said to have asked the Mr Hart for the time. Mr Hart responded and continued on his way. The indications are that the applicant and Humed were present in George St at this time. There is nothing to suggest they spoke.
As Mr Hart was walking away, it is alleged that Lado called out, ‘Hang on, give us your stuff, I’ve got a knife’. Lado put his hand in his pocket, intimating that he had a knife in his pocket. He did not produce any weapon. Instead, Lado grabbed Mr Harts’ phone from his hand. Mr Hart told Lado to ‘fuck off’.
According to the prosecution case, Lado then punched Mr Hart to the face, knocking him to the ground with a damaged lip, and knocking his glasses from his face. Mr Hart thereafter refused to accede to Lado’s demands to provide his phone password, and was kicked a number of times whilst on the ground. He did not see who was kicking him. The applicant and co-accused are said to have then left the scene in the direction of Gertrude St.
Mr Hart reported the incident to Fitzroy Police Station, and thereafter was taken by ambulance to St Vincent’s Hospital and treated for three fractures to the right cheek bone and a fractured right eye socket. He was noted to have multiple cuts, scrapes and bruises to his elbows and knees. The respondent in giving evidence before me noted that she intended to obtain a statement from the surgeon who performed surgery to repair one or more of the fractures to the face of Mr Hart. I was informed that Mr Hart spent a night in hospital after the attack upon him, then returned for surgery at a later time. The respondent also informed the Court that when she last spoke to Mr Hart on 5 March 2020, he was complaining of ongoing dental issues as a result of the attack.
Relevantly, CCTV footage depicted the same three males from the Napier Street building running in single file along Gertrude Street at approximately 5.15am. This preceded the attack upon Mr Hart, and corresponded with the time it is alleged they followed him into George Street on the southern side of Gertrude St. At 5.19am, the males were seen walking away from George Street, towards Napier Street. Images from the CCTV footage were circulated within Victoria Police and the three males were subsequently identified as the applicant and two co-accused.
On 18 February 2020, a search warrant was executed at the family home of the applicant and Lado. Seized during the search was the mobile phone of Mr Hart which was located in Lado’s bedroom.
The applicant was arrested and provided a ‘no comment’ interview. He was remanded in custody.
Co-accused
On 18 February 2020, Lado was arrested and remanded in custody. He was charged with the same offences as those laid against the applicant. He applied for and was refused bail that same day in the Broadmeadows Magistrates’ Court.
On 27 February 2020, Humed was arrested and charged with the same offences, other than the charge of committing an indictable offence whilst on bail. He was granted bail on 3 March 2020 in the Melbourne Children’s Court. However, Humed was arrested and remanded in relation to further separate offences on 6 March 2020. As it stands, he remains in custody.
The law
Section 1B of the Act sets out the guiding principles of the Act and reads in part as follows:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
…
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 4 of the Act makes plain the fact that there is to be a presumption in favour of the granting of bail.
Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, I must refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, I am required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of exceptional circumstances, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires me to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
i. endanger the safety or welfare of any person; or
ii. commit an offence while on bail; or
iii.interfere with a witness or otherwise obstruct the course of justice in any matter; or
iv. fail to surrender into custody in accordance with the conditions of bail.
The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, I am required to take into account the surrounding circumstances pursuant to s 3AAA. I am also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.
In rehearsing the meaning of exceptional circumstances in the matter of Re Brown,[3] Lasry J observed:
[3][2019] VSC 751 [65]-[66].
… the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be ‘exceptional’, it has been accepted that:
· 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.
· Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
· Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.
As Vincent J said in Moloney:[4]
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is … ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
[4]Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990.
The Applicant
The applicant is a 19-year-old male with a diagnosis of anxiety and depression (presently untreated). He was born in Egypt after his family fled from Sudan. At the age of about 4, the applicant migrated to Australia. He attended seven different schools due to familial relocations, and left school in Year 12. He is said to be strongly supported by his family.
Criminal History
The applicant has no criminal history in the adult jurisdiction. However, he has a criminal history in the Children’s Court, which to my mind is very significant. On 31 May 2017, when he was 16, he was dealt with for armed robbery and damaging property. He received a Youth Supervision Order which he subsequently breached, resulting, on 13 February 2018, in a period of detention in a Youth Justice Centre (YJC) of 12 months. On 4 October 2017, he was dealt with for carjacking. Again, he was released on a Youth Supervision Order for 12 months. This order he also breached, and again, on 13 February 2018, he received a term of detention for the original offence. On 3 July 2019, he was dealt with for affray and resisting an emergency worker as a result of an incident which took place when he was in custody at the Parkville YJC. He received periods of detention of 120 days and 14 days respectively, with declarations made concerning pre-sentence detention which had the effect that he did not spend any further time in custody. Indeed, as I was informed, he had been released in June 2019.
Applicant’s Contentions
The applicant relies upon a combination of matters to establish exceptional circumstances, as follows:
(a) The strength of the prosecution case. On that score, Mr De Witt for the applicant submitted that even taken at its highest, the prosecution case admitted of real issues to be tried at the impending contested hearing. The case is put on a complicity basis and the evidence may fail to establish more than the fact that the applicant was present. There is no evidence he inflicted any blow or was in any discussion with the main offender before the attack. Whilst Mr De Witt did not concede that there will be no issue concerning identity, any problem in the proof of that was not strongly relied upon.
(b) The delay which would occur before the finalisation of the charges. The contest mention is listed for 2 June and a contested hearing will not take place until 4 August 2020. That would be a significant period of time for the applicant to spend on remand in an adult prison for the first time.
(c) The likelihood that the period on remand would exceed any sentence he would receive. On that score, Mr De Witt submitted that there was a very realistic possibility that the applicant would not receive a sentence in an adult prison exceeding the 30 days he has already spent on remand, much less the period from his arrest until 4 August 2020 should he not be bailed. Mr De Witt took me to some of the features of the case including the youth of the applicant in support of the contention that a sentence of time served (as of now) and a community correction order (CCO) would be a likely sentence. He also submitted that a sentence in a YJC may also be open.
(d) The youthfulness and associated vulnerability of the applicant in an adult custodial setting, particularly in view of the fact that this is his first experience of an adult prison. Mr De Witt informed me that the applicant has been much affected by this time in adult custody.
(e)The loss of the opportunity to serve his sentence in a youth facility should the applicant end up receiving a custodial sentence, as he would already have spent a substantial period on remand in an adult gaol.
(f)The availability of the services of Court Integrated Services Program (‘CISP’). Two CISP reports were provided. The applicant has been assessed as suitable for services under the CISP program which would provide supervision and services to him which he has not previously received. A representative of CISP was present in Court and available to give evidence. I indicated I did not require this, and accepted the contents of the CISP reports.
(g)The availability of strong family supports and accommodation. The sister of the applicant gave evidence and indicated that she was prepared to have the applicant live with her in Truganina. She promised to report the applicant to the police should he fail to abide by any bail conditions. Lado would not be welcome at her home. Mr De Witt submitted that the position regarding family support was different from the position in the past. There would, he submitted, be a far greater collection of protective factors. In particular, the applicant would no longer be susceptible to the negative peer influence of his brother.
In respect of unacceptable risks alleged by the respondent, Mr De Witt relied on the above combination of matters, and the availability of an array of strict conditions which, it was submitted, would be such as to ameliorate to an acceptable level any risk of reoffending or endangering the public by the applicant. The applicant has not previously been subject to strict conditions of bail, and despite having prior convictions in the Children’s Court jurisdiction, none of those convictions relate to breaches of bail. Finally, it was noted that the applicant has found his time in adult custody to be difficult and submitted that this will be a significant deterrent against future offending.
The Respondent’s Contentions
The respondent opposes bail on the basis that the applicant has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances. On that score, Mr Moran submitted that none of the individual matters relied upon was exceptional, and nor were they in combination sufficient to reach the high threshold of exceptional circumstances.
In respect of the strength of the prosecution case, Mr Moran disputed that it was weak. In fact, it was a perfectly strong and sufficient case when the evidence as a whole was considered. The offences are charged on a complicity basis and it does not matter than the brother of the applicant was seemingly the ringleader. The applicant was present with his brother and the other alleged offender before, during, and after the offending, and property stolen from Mr Hart was found at the home of the applicant, albeit in his brother’s room.
In respect of the likely sentence upon conviction, Mr Moran submitted that a custodial sentence would be in the contemplation of the court in light of the seriousness of this offending and the history of the applicant for offences of violence. He has had the opportunity for community based dispositions, which he has spurned in the past. The fact that the prior convictions occurred in the Children’s Court does not take away from their seriousness, and their relevance in assessing the risk of the applicant reoffending in future.
The family support available to the applicant was not challenged, but it was submitted that even with strong family support in the past and a stable residence, he had repeatedly offended. The changed level of support now proposed would not alter the risk of his reoffending.
As to the position with CISP, there were, in effect, two contradictory reports. One from CISP, one from Youth Justice. The supervision and support to be provide by CISP could hardly be described as intensive.
In terms of unacceptable risk, should I reach the point of considering that, the focus of the risk was reoffending and endangering the public. These were very legitimate concerns in view of the serious and violent nature of the offending here, the significant record of the applicant for crimes of violence, and the fact that this offending is alleged to have occurred while the applicant was on bail for two other groups of charges.
Analysis
In considering whether exceptional circumstances exist, I am required to take into account the surrounding circumstances as set out in s 3AAA. The first of these is the nature and seriousness of the alleged offending. On that score, to my mind, the offending alleged in this case is exceedingly serious. Three men pursued and confronted a lone man in the early hours of the morning on a public street. The man was robbed of his phone, with the threat of the use of a weapon, albeit that no weapon was produced. Having been relieved of his property, the man was then gratuitously struck with great force, and then further attacked by being kicked more than once to the head while he was lying helpless on the ground. He sustained three fractures of the cheekbone and a fractured eye socket. His injuries were of sufficient severity to require ambulance transportation, an admission to hospital, and later surgery, the details of which have not yet been revealed. Such information as has been provided concerning the injuries would indicate one or more of the facial fractures was a displaced fracture. As recently as 5 March 2020, on speaking to the respondent, Mr Hart indicated that he had some ongoing dental issues following on from the injuries he sustained.
It is a matter for the prosecution what charges are laid and proceeded with. I can only say that on my perception of it, the injuries caused to Mr Hart are very significant ones, and if they do not meet the definition of serious injury contained in section 15 of the Crimes Act 1958, then they would be at the upper end of the range of injury simpliciter.
As I said, the offending alleged here is very serious.
The second matter for consideration under s 3AAA is the strength of the prosecution case. Here, the case was described by Mr Moran as being perfectly strong and sufficient. I must say that on my perception of it on the material available to me at this time, I agree with that description. The events alleged had about them the appearance of a group attack upon an isolated man, preceded by the formation of an agreement on the spur-of-the-moment when the three attackers happened by chance upon their victim.
The third matter for consideration is the criminal history of the applicant. In my view, notwithstanding the fact that that history is all in the Children’s Court jurisdiction, it shows the applicant to have some violent tendencies, and to have exhibited an unwillingness to abide by the requirements of the Children’s Court. That does not augur well for his prospects on bail.
In respect of clauses (d) and (e) of s 3AAA(1), whilst the applicant has not accrued any convictions for failing to comply with the conditions of earlier grants of bail, he is currently facing charges of committing indictable offences on bail. Furthermore and importantly, the offending alleged here occurred at a time when he was subject to not one but two separate bail undertakings. Again, this is a matter which raises serious questions about his willingness to comply with the requirements of bail.
I acknowledge that the applicant has the benefit of a supportive family, and in particular, a sister who is willing to take him in, and to promise to the Court that she will report non-compliance with bail. However, there is nothing to suggest the applicant was lacking in family support in the past when he accrued his prior convictions. That has not stopped him from offending in a serious fashion on more than one occasion.
The applicant does have the support of CISP available to him, but unfortunately, he has shown by his conduct where Youth Justice are concerned that he is unwilling to accept the support of others who seek to assist him to avoid lapsing into criminality. The picture painted in the report of Ms Crehan, an experienced worker in the youth justice field, is of a young person who has simply refused to take heed of the many opportunities extended to him. Ms Crehan very fairly indicated in her evidence before me that Youth Justice would support the applicant should he be released on bail, but it is not the decency and patience of Youth Justice which is in doubt, but rather, the attitude of the applicant.
Turning to (k) and (l), I decide this application on the basis that the charges are currently in, and will remain in, the summary stream. That means that as things presently stand, a contested hearing will likely occur in early August. Therefore, the time spent on remand should bail be refused will be about five and a half months. That is a significant period of time for a young person to be on remand in an adult prison. However, I do not consider that that time would necessarily exceed any period of custody he would receive should he be found guilty of the charges he faces. In the Children’s Court jurisdiction, the applicant was sentenced for offending serious enough to warrant, even for a child of his then age, significant periods of detention in a YJC. The days of him being dealt with in a system in which the welfare of the child is the primary consideration, and in which general deterrence has no part to play, are behind him. He is now an adult. Furthermore, because of his antecedents, his youth, whilst not unimportant, will likely not command the same prominence as it would in the case of a 19 year old offender of good previous character. Should he come to be sentenced for the offending he currently faces, a term of imprisonment exceeding the period of time he would have spent on remand is the likely outcome.
A further matter I have taken into account as part of the surrounding circumstances of the case is the difficult and concerning position in which the whole community finds itself because of the current health crisis faced throughout the world. These events may be said to impose additional stress upon those in custody who are not in a position to control their own destiny. In addition, the current crisis does pose the risk of court dates being postponed, and anticipated periods on remand being extended.
Having considered all of the surrounding circumstances in this case, I am far from satisfied that exceptional circumstances exist that would justify a grant of bail in this case. On the contrary, I consider that it is appropriate and necessary that the applicant remain in custody at this time.
For completeness, I can indicate that even had I considered that exceptional circumstances had been made out, I would have been satisfied that there would be an unacceptable risk of the applicant endangering the safety or welfare of the community or committing offences while on bail, and I would have refused bail for that reason in any event.
Conclusion
For the reasons stated above, this application for bail must be refused.
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