Re Macri
[2021] VSC 111
•9 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0013
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Massimiliano MACRI |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2021 |
DATE OF JUDGMENT: | 9 March 2021 |
CASE MAY BE CITED AS: | Re Macri |
MEDIUM NEUTRAL CITATION: | [2021] VSC 111 |
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CRIMINAL LAW – Application for bail – Armed robbery – Compelling reasons established – No unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Portelli | James Dowsley & Associates |
| For the Respondent | Ms K Farrell | Ms A Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
Massimiliano Macri (‘the applicant’) makes application to this Court for bail. He has been on remand since 17 September 2020 when he was charged with armed robbery, false imprisonment, making a threat to kill (two charges) and making a threat to inflict serious injury (two charges). The charges arise from an incident on 20 December 2019 in the Melbourne CBD.
These matters are next listed for committal hearing on 25 March 2021 at the Melbourne Magistrates’ Court. The applicant has made a previous application for bail to the Melbourne Magistrates’ Court on 16 December 2020 which was refused. On 23 February 2021 the matter came before me as an application for bail. I granted the application and indicated that I would provide my reasons. These are those reasons.
In the background to the current matters, the applicant has also been charged with offences said to have been committed on 6 July 2019, involving possession of a drug of dependence, aggravated burglary, common assault, theft and robbery. He is presently on bail for those matters, although there is an application for the revocation bail due to be heard in the Melbourne Magistrates’ Court on 14 April 2021. It had been hoped that that matter would be disposed of before the hearing of this application so I could consider whether or not I had to consider both matters – that did not come about and the applicant pressed me to continue with the hearing of this matter, and I did so.
The alleged offending
The alleged offending occurred at Cecconi’s Restaurant located in Flinders Lane in the Melbourne CBD. The applicant is a former employee of that restaurant.
At 7.00am on 20 December 2019, a Director of Cecconi’s Restaurant, Olimpia Bortolotto, was counting cash from the previous day’s trading in the rear office. She left the office momentarily, estimating that she left $2132.40 in cash on the desk. At the same time, a contracted stock auditor, Mark O’Sullivan, was in the wine cellar conducting a stocktake.
At 7.13am, the applicant and co-accused, John Lindrea, walked down Sargood Lane which leads to the rear locked entrance of the restaurant and pressed the intercom button. An employee of the restaurant heard a male voice say ‘delivery’ so unlocked the door via a remote panel. The two men, it is alleged, then proceeded through the restaurant to the wine cellar with their faces covered. While working in the wine cellar, Mr O’Sullivan turned around and allegedly observed Mr Lindrea pointing a handgun at him. Mr Lindrea asked him where the safe was, to which Mr O’Sullivan replied that he did not work at the restaurant.
Mr Lindrea then ordered him to exit the wine cellar, and Mr O’Sullivan complied. He observed the applicant standing at the door to the office, before Mr Lindrea asked Mr O’Sullivan where the manager and ‘Olimpia’ were. Mr Lindrea directed Mr O’Sullivan to return to the wine cellar while continuing to point the handgun at him. Mr Lindrea allegedly said ‘[j]ust do what you’re told and you won’t get hurt’, while Mr O’Sullivan knelt on the floor and faced the wall. Mr Lindrea left the wine cellar and closed the door, allegedly taking with him Mr O’Sullivan’s mobile phone and Ms Bortolotto’s handbag. The applicant then allegedly latched the door to the wine cellar with a padlock, locking Mr O’Sullivan inside.
Mr Lindrea, after a conversation with the applicant, returned to the wine cellar while the applicant allegedly searched the office and filing cabinet. After the applicant knocked on the wine cellar door, Mr Lindrea exited, and again the door was latched by the applicant with a padlock.
Leaving Mr O’Sullivan in the wine cellar, it is alleged that both of men went to the rear office and located the unlocked safe. Mr Lindrea allegedly collected envelopes containing $33,981.90 in cash intended for the employees’ Christmas bonuses and tips. At the same time, Ms Bortolotto returned to the office and observed the two men. She yelled at them to ‘get out’ and tried to push them out of the office, while calling for help. Ms Bortolotto managed to remove the applicant from the office by pulling him by the back of his hooded jumper. However, a scuffle ensued between Mr Lindrea and Ms Bortolotto, during which she pulled down the bandana covering his face. Mr Lindrea then allegedly pointed the handgun in her face and said ‘if you don’t fucking shut up I’ll blow your head off’, before demanding that she open the safe, again threatening to ‘blow’ her head off if she did not comply. At this point, Mr Lindrea allegedly took Ms Bortolotto in a headlock and pulled her to the ground, while still pointing the handgun in her face. He then removed all of the contents from the safe and handed them to the applicant who put them into a bag.
The two men left the premises through the rear entrance, but appear to have dropped some envelopes containing $15,000 in cash along the way, which were later found by the chef upon his arrival at the restaurant. The total amount of money alleged to have been stolen during the incident was therefore $18,891.90.
On 1 April 2020, Mr Lindrea was arrested in this matter following the execution of a search warrant at his residence.
The prosecution case relies on CCTV and dashcam footage which is alleged to identify the applicant and Mr Lindrea, and place them in the area of the restaurant around the time of the incident, as well as CCTV from within the restaurant at the time of the incident.
On 17 September 2020, a search warrant was executed at the applicant’s residence at 6 Bent Street, Westmeadows. He was later located and arrested at 20 Ninnis Street, Roxburgh Park, which belonged to a witness, Stephanie Spyrou. The witness was shown a still image from CCTV footage from 31 Spring Street. She made an initial statement that she was ‘90 percent sure’ that the persons depicted in the CCTV were the applicant and Mr Lindrea, but later said in a further statement that she was ‘40 percent sure’ that one of the persons was the applicant.
The applicant made no comment in his record of interview.
The applicable legislation
First step – compelling reason
The applicant is accused of committing Schedule 2 offences within the meaning of the Bail Act 1977 (Vic) (‘the Act’). As such, the Court must refuse bail unless satisfied by the applicant that a compelling reason exists justifying the grant of bail.
In determining whether a compelling reason exists, the Court must take into account the relevant surrounding circumstances, including, but not limited to, those delineated in s 3AAA(1) of the Act.
Second step - unacceptable risk
If satisfied that a compelling reason exists, the Court must apply the unacceptable risk test. Bail must be refused if the Court is satisfied by the respondent 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 the risk is an unacceptable one.
In applying this test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Analysis
It was submitted on behalf of the applicant that compelling reason can be shown because of the weakness of the Crown case and delay, coupled together with the fact that he has accommodation available and work to go to. Further, it was advanced that the applicant has no criminal history and therefore has a clear record as it relates to the question of bail.
The prosecution do not concede that the case is weak and submit that it is a relatively strong case when all the features of the case are taken together. I perhaps would not go so far as saying that it was a strong case, but I do not accept that it is a weak case.
For completeness, the prosecution submit that the applicant would be an unacceptable risk of endangering the safety and welfare of any person committing an offence whilst on bail or interfering with any witnesses. They concentrate in relation to that consideration on the possibility of interfering with witnesses because two of the witnesses know the applicant personally and have worked with him in the past. Both witnesses have both expressed concern about their welfare which, of course, is a matter that I am obliged to take into account pursuant to s 3AAA of the Act.
As I indicated to the parties in argument, this case seems to me to turn largely on the question of whether or not a delay that would exist in this case does amount to compelling reason. It is likely that whether the application remained in custody or not, this matter could not be heard in the County Court prior to at least the second half of 2022 and perhaps later than that.
I accept that what has been done in the case thus far has been done promptly and, in the present circumstances, quite quickly. I make it absolutely clear that the decision I have made in relation to this application should not in any way influence any decision to be made in relation to the revocation of bail in the matter which is still before the Magistrates’ Court.
Ruling
This is a case which reflects the difficulty that the criminal justice system finds itself in. If this matter could proceed in a reasonably prompt way, I would not find that compelling reason had been made out and I would not grant bail. I am satisfied, however, that based on the question of delay, taken together with the absence of prior convictions and therefore the absence of any prior adverse bail history, that compelling reasons have been made out.
Although I understand the concerns that the informant and the prosecution have about the possibility of the applicant interfering with witnesses if he was released on bail, I am not satisfied that there is sufficient objective material available to me to actually make the judgment that he does represent such a risk. I have, however, taken into account the view expressed by the victims.
The evidence to be given by the witnesses, although significant, is not evidence that will determine whether a conviction can be secured by the prosecution. The applicant needs to understand that any approach by him or by anyone on his behalf to any witness will, insofar as this case is concerned, have profound consequences because, among other things, it will substantially strengthen the prosecution case against him.
I am therefore not satisfied that the applicant is an unacceptable risk. It should be understood that is not to say that I do not regard him as being a risk, but in the circumstances, I am not satisfied that it is an unacceptable risk.
The applicant will be admitted to bail on his own undertaking on the following special conditions:
(a) He attend the Melbourne Magistrates’ Court on 25 March 2021 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 to again surrender himself into custody.
(b) He reside at an address known to police and not change that address without the leave of the court.
(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail, except in the company of Mr Graham Brady. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of the Victoria Police Force to do so.
(d) He report each Monday, Wednesday and Friday to the officer in charge of the police station at Broadmeadows or his or her nominee between the hours of 7.00am and 7.00pm when notified by the informant that reporting has recommenced.
(e) That he abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act without lawful authorisation under that Act.
(f) He provide a sample of his breath or oral fluid for testing if required to do so by any member of the Victoria Police.
(g) He not contact directly or indirectly the co-accused, being John Lindrea, for the duration of the bail period.
(h) He not contact directly or indirectly any witness for the prosecution except the informant.
(i) He not leave the state of Victoria, he surrender any passport he may have to the informant within 24 hours.
(j) He not attend any points of international departure.
(k) That he not attend or be within the Melbourne central business district bounded by Latrobe Street, Spencer Street, Flinders Street and Spring Street except to attend court or meet his lawyer or lawyers for the duration of the bail period.
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