Re Mahat
[2024] VSC 140
•21 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0261
IN THE MATTER of the Bail Act 1977
- and -
IN THE MATTER of an Application for Bail by SALIH MAHAT
BETWEEN:
| SALIH MAHAT | Applicant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 December 2023 |
DATE OF JUDGMENT: | 21 December 2023 |
DATE OF REASONS: | 1 February 2024 |
CASE MAY BE CITED AS: | Re Mahat |
MEDIUM NEUTRAL CITATION: | [2024] VSC 140 |
---
CRIMINAL LAW — Application for bail — Charges relating to family violence against former partner including use of weapons, co‑offenders — PSIOs and FVIOs — Family support — No criminal history — Alcohol and other drug use — Mental health diagnoses — AFTR support and GPS monitoring available — Lack of insight into alleged offending — Exceptional circumstances not demonstrated — Unacceptable risk established — Bail refused — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4A, 4AA, 4E, 5AAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L Hocking | SLKQ Lawyers |
| For the Respondent | J McCarthy | Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by 24 year old Salih Mahat [‘the applicant’]. He seeks bail in the following matters:
Informant Cox
Alleged offending on 9 May and 7 June 2023; charged on and held in custody since 8 June 2023
(a) attempted armed robbery;
(b) robbery;
(c) reckless conduct endangering life;
(d) intentionally causing injury;
(e) recklessly causing injury;
(f) making threats to kill;
(g) assault with a weapon (two charges);
(h) using a prohibited weapon without exemption/approval;
(i) contravening a family violence intervention order [‘FVIO’] intending to cause harm or fear;
(j) contravening a final FVIO (two charges);
(k) committing an indictable offence whilst on bail; and
(l) contravening certain bail conduct conditions.
Informant Zalewski
Alleged offending between 20 July and 3 September 2022; charged and granted bail on 9 September 2022; bail revoked on 22 June 2023
(a) intentionally causing injury;
(b) recklessly causing injury;
(c) assault with a weapon;
(d) unlawful assault (three charges);
(e) contravening an interim FVIO intending to cause harm or fear (two charges);
(f) contravening an interim FVIO (ten charges);
(g) intentionally damaging property;
(h) persistent contravention of an FVIO (two charges); and
(i) driving whilst suspended.
The applicant is also subject to a summons in the matter of Informant Laoang for alleged offending between March and April 2022. The applicant asserts the matter has resolved on the basis that he will plead guilty to a single charge of providing a false name to police, with the prosecution to withdraw the remaining charges, namely two charges of unlawful assault and one charge of common law assault.
The applicant’s matters are next listed on:
(a) 14 December 2023 at the Melbourne Magistrates’ Court for a contested committal hearing in the informant Cox matter (noting this has since occurred);[1] and
(b) 25 March 2024 at the Sunshine Magistrates’ Court for a contested hearing in the Informant Zalewski matter and a plea of guilty in the Informant Laoang matter.
[1]At the bail ruling on 21 December 2023, the applicant’s representative indicated that the matters had been uplifted to the County Court on this date, with a mention listed for 2 February 2024.
The application
In support of the application, the applicant’s solicitor, Celine Khoury, prepared and filed an affidavit dated 25 October 2023, attached to which there are a series of exhibits, including:
(a) a diagnostic assessment report dated 20 October 2023 authored by David Millar, and Sophie Russell, of the Melbourne‑based Australian Forensic Treatment Rehabilitation [‘AFTR’]; and,
(b) a letter dated 21 June 2023 authored by Elliott Stock, youth support worker at Yarra Youth services.
In response to the application, the respondent filed an affidavit in response prepared by Michael Robinson, solicitor, dated 9 November 2023, also attaching a series of exhibits including a report prepared by the informant, Senior Constable Bridget Cox, dated 8 November 2023.
Procedural history
A chronology of relevant dates is attached at the end of these reasons.
Previous applications for bail
On 9 September 2022, the applicant was granted bail in the Informant Zalewski matter at the Sunshine Magistrates’ Court.
On 22 June 2023, an application for bail was heard at the Melbourne Magistrates’ Court. The applicant was refused bail in the Informant Cox matter on the basis that exceptional circumstances did not exist to justify the grant of bail and there was an unacceptable risk the applicant would commit an offence while on bail and endanger the safety or welfare of any person. The applicant’s grant of bail in the Informant Zalewski matter was revoked.
On 7 August 2023, an application for bail on the basis of new facts and circumstances was heard at the Melbourne Magistrates’ Court. The applicant was refused bail in both remand matters on the same basis as it was refused on 22 June 2023.
Intervention orders
The applicant is currently subject to two final FVIOs and two final personal safety intervention orders [‘PSIOs’].
PSIOs
According to the respondent, the two final PSIOs protect a father and his son. All criminal charges associated with the matter have been withdrawn. The court was provided with a copy of the order made by the Heidelberg Magistrates’ Court on 8 December 2022 (which expired on 8 December 2023) protecting Farah Dirie.
FVIOs
The first final FVIO protects VT, the applicant’s former partner and a complainant in all matters. The order was made on 20 September 2022 at the Sunshine Magistrates’ Court, served on the applicant on 28 September 2022 and expires on 19 September 2024. The conditions of the order stipulate that the applicant must not:
(a) Commit family violence against the protected person;
(b) Intentionally damage any property of the protected person or threaten to do so;
(c) Attempt to locate, follow the protected person or keep her under surveillance;
(d) Publish on the internet, by email or other electronic communication any material about the protected person;
(e) Contact or communicate with a protected person by any means;
(f) Approach or remain within five metres of a protected person;
(g) Go to or remain within 200 metres of [an address] in Keilor Downs or any other place where a protected person lives, works or attends school/childcare;
(h) Get another person to do anything the respondent (being the applicant here) must not do under this order.
Prior to the making of the final FVIO to protect VT, the applicant was subject to a family violence safety notice served on him on 11 April 2022, and an interim FVIO made at the Sunshine Magistrates’ Court on 19 April 2022.
The second final FVIO protects KT. The order was made on 16 May 2023 at the Sunshine Magistrates’ Court, following the making of an interim order on 9 September 2022. The order expires on 15 May 2024 and has the following conditions:
The applicant must not —
(a) Commit family violence against the protected person;
(b) Intentionally damage any property of the protected person or threaten to do so;
(c) Attempt to locate, follow the protected person or keep him under surveillance;
(d) Publish on the internet, by email or other electronic communication any material about the protected person;
(e) Contact or communicate with a protected person by any means;
(f) Approach or remain within five metres of a protected person;
(g) Go to or remain within 200 metres of [an address] in Keilor Downs or any other place where a protected person lives or works;
(h) Get another person to do anything the respondent (being the applicant here) must not do under this order.
The applicant may —
(i) Communicate with the protected person through a lawyer if he does not commit family violence while doing so.
The alleged offending in chronological order
Background
The complainant in all the matters is VT, who is currently 17 years of age. The applicant and VT were in dating relationship for approximately nine months before separating on 10 April 2022. It is alleged VT was four months pregnant with the applicant’s child at this time.[2] VT’s father, GT, is also a complainant in the Informant Zalewski matter.
[2]It is not clear from the material filed with the Court whether VT was in fact pregnant at this time.
The following discussion sets out the allegations made against the applicant.
Informant Laoang – summons matter
Incident one
During March 2022, VT visited the applicant at the RMIT Melbourne campus. It is alleged that while sitting inside the university, the applicant slapped VT and grabbed her around the neck.
Incident two
On 8 April 2022, VT was waiting to be picked up by her aunt outside her high school. The applicant approached VT, called her a slut and stated she needed to get an abortion. The pair argued and VT threw her phone towards the applicant. In response, the applicant grabbed VT around her throat with both hands.
Incident three
After the applicant and VT separated, VT began receiving phone calls and messages from the applicant, in which he threatened that he and his friends were going to attend her house and harm her.
At 5:00 pm on 11 April 2022, the applicant and five other males banged on the front door of VT’s aunt’s residence in Keilor Downs, where VT was residing. Fearful the applicant would carry out his threats, VT called emergency services. Police attended and spoke with the applicant and five other males who were in a park across road. The applicant provided a false name and address.
The applicant was arrested, interviewed and released pending summons. He was also served a family violence safety notice protecting VT.
Resolution of matter
The applicant asserts the Informant Laoang matter has resolved on the basis of a plea of guilty to a single charge of provide police with a false name. The factual basis of the resolution has not been provided in the filed material.
Informant Zalewski – remand matter
The following incidents are alleged to have occurred while an interim FVIO protecting VT was in force. A copy of the interim FVIO protecting VT was not provided to the court.
Incident one
On 1 September 2022, VT contacted the applicant so her school laptop could be returned to her. At approximately 6:30 pm, the applicant arrived near VT’s residence in Keilor Downs in his Holden Cruze. VT approached the applicant in his car and was told to enter if she wanted her laptop. VT complied and entered the car.
The applicant locked the car doors and drove to a nearby street. He then snatched VT’s phone out of her hand, exited the car and smashed the phone on the ground. The applicant returned VT’s smashed phone to her, commenting she could still fix it, before grabbing the phone again and bending it in half. VT started to cry, turning her head away from the applicant. The applicant grabbed the back of VT’s head and struck her once to the back of the head. VT continued to cry in the car for a short period of time, and left once the applicant unlocked the car. VT reported the incident to police the following day.
Incident two
At approximately 1:15 am on 3 September 2022, the applicant was sitting in his car across the street of VT’s residence in Keilor Downs. The applicant called and messaged VT, requesting she come to see him. VT left her residence and walked towards the applicant’s car.
Having overheard VT speaking to the applicant on the phone, VT’s father, GT was outside. He approached the applicant in his car and demanded he leave, saying he was breaching the interim FVIO. The applicant exited his car and repeatedly punched GT in the face and grabbed at his eyes. VT attempted to intervene but was unsuccessful. The applicant then removed a garden stake from a neighbouring front garden and chased GT while waving the stake. GT’s partner witnessed the incident and called emergency services. By the time police arrived at 1:35 am, the applicant had left on foot. GT sustained injuries to his face and left eye as a result of the incident.
Police investigation and arrest
In the following days, police obtained CCTV footage of the incident and witness statements. Enquiries made with VicRoads identified the applicant had driven his car whilst his learner permit was suspended. The applicant’s phone call records further identified he had contacted VT on 144 occasions between 20 July and 4 September 2022, in contravention of the interim FVIO.
On 9 September 2022, the applicant was arrested, interviewed and charged in respect of the alleged offending. He did a no comment interview. After the interview, he stated another person (who is not on VicRoads or LEAP databases) was driving on 3 September. The applicant was taken to the Sunshine Magistrates’ Court, where he was released on bail.
Informant Cox – remand matters
The following incidents are alleged to have occurred while a final FVIO protecting VT was in force.
Incident one
On 9 May 2023, the applicant sent messages to VT via Snapchat, in contravention of the final FVIO in force. One of the messages was ‘Its fkn Salah you dumb bitch’. The applicant also sent messages to VT’s friend including ‘idgaf she’s a fkn slut I’m gonna kill her just fkn wait’. VT later attended the Caroline Springs police station and reported the incident to police.
Incident two
On 7 June 2023, the applicant called VT via Snapchat using an account called something like ‘yourgonnagetsmoked’, in contravention of the final FVIO in force. Later, VT received a message from a female co‑offender via Snapchat. The message invited VT to join her and her friends at a park in Wyndham Vale. VT accepted the invitation and agreed to be picked up by the female co‑offender.
At approximately 6:00 pm, the female co‑offender arrived in a sedan to pick up VT as arranged. The female co‑offender was wearing a black ski mask, as was the applicant and a male co‑offender sitting in the back seat. VT entered the sedan. As she turned to speak with the male co‑offender, she recognised the applicant. VT queried why the applicant was present, and was informed he just wanted to speak to her and that they could do so when they arrived at their destination. VT remained silent for the rest of the trip in an attempt to not escalate the situation.
The sedan eventually arrived at Wyndham Vale Reserve. The applicant exited, opened the door and dragged VT out of the sedan. The applicant asked VT to walk with him into the parkland area. After she refused, the applicant threatened he and the co‑offenders would ‘drag’ her. The female co‑offender indicated to VT that she wanted to fight her, then proceeded to punch VT in the face multiple times. The applicant pushed VT to the ground, stealing her shoes and attempting to snatch her phone as she picked it up from the ground. The female co‑offender kicked VT to the back and stomach approximately three times while she was on the ground, then continued punching her head. The male co‑offender filmed the incident on his phone.
Next, the applicant placed VT in a headlock and dragged her into the parkland. Her vape fell out of her pocket and was stolen by one of the co‑offenders. The male co‑offender produced and activated a taser, threatening to taser her if she did not unlock her phone. VT attempted to call triple zero, but instead called her stepmother who began recording the phone call and reported the incident to police.
The applicant grabbed the taser from the male co‑offender and tasered VT’s legs five times, resulting in burns. The female co‑offender continued to punch VT’s head. As VT managed to get up off the ground, the applicant again placed her in a headlock and the female co‑offender grabbed her legs. The applicant then produced a 30cm knife from his pants and held it against VT’s throat, threatening that the female co‑offender would stab her if she didn’t give them her phone. The female co‑offender confirmed she would stab VT in the neck.
At this stage, the applicant lost his footing and slipped, providing an opportunity for VT to break free. VT ran towards the nearby soccer field screaming for help. The applicant chased her, yelling that he was going to kill her. He eventually caught up to VT, pushed her onto the ground and tried to take her phone. However, witnesses from the soccer field approached and intervened. One of the witnesses returned VT’s phone to her while another filmed the applicant walking away from VT after her phone was returned. The applicant left the area in an unidentified vehicle.
On 8 June 2023, VT attended the Sunshine hospital to have her injuries assessed. She sustained bruising to her right eye and temple area, burn marks to her legs and an abrasion to her right pinkie finger as a result of the incident.
Arrest and interview
The applicant was arrested, charged and interviewed on 8 June 2023, and remanded at the filing hearing at the Sunshine Magistrates’ Court on 9 June 2023. During his record of interview, the applicant denied all allegations put to him, stating that he was at home at the time of the incident. The male and female co‑offender have not been charged in respect of this incident.
The applicable legislation
Guiding principles
The Bail Act 1977 [‘the Act’] is intended to be applied and interpreted with regard to the guiding principles set out in section 1B(1) of the Act.
Family violence risks
In the present case, the applicant is charged with a family violence offence.[3] The Court must therefore consider whether there would be a risk the applicant would commit family violence if released on bail, and whether that risk could be mitigated by the imposition of a condition or the making of a FVIO.[4]
[3]The Act s 3 defines ‘a family violence offence‘ to include an offence against ss 123(2), 123A(2) and 125A(1) of the Family Violence Protection Act 2008. The applicant is charged with offences under ss 123(2) and 123A(2) in the informant Cox matter and offences under ss 123(2), 123A(2) and 125A(1) in the informant Zalewski matter.
[4]The Act s 5AAAA(2).
The Court also has a duty to make inquiries with the prosecutor as to whether any interventions orders are in force against the applicant.[5]
[5]The Act s 5AAAA(1).
Step 1 – exceptional circumstances test
As the applicant is accused of schedule 2 offences while on bail for other schedule 2 offences,[6] bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justifies the grant of bail.[7] In considering whether this threshold is met, the Court must take into account the surrounding circumstances defined in s 3AAA of the Act.[8]
[6]The applicant is accused of attempted armed robbery and commit an indictable offence on bail while on bail for persistent contravention of a FVIO. See the Act sch 2, items 19, 22(a) and 31.
[7]The Act ss 4AA(2)(c)(i), 4A(1)–(2).
[8]The Act s 4A(3).
Step 2 – unacceptable risk test
If the Court is satisfied exceptional circumstances exist that justifies the grant of bail, bail must still be refused if the respondent satisfies the Court that a risk outlined in s 4E(1)(a) of the Act exists, and that risk is unacceptable.[9] In considering whether the risk is unacceptable, the Court must take into account the surrounding circumstances, and whether any conditions of bail could be imposed to mitigate the risk to an acceptable level.[10]
[9]The Act ss 4A(4), 4D.
[10]The Act s 4E(3).
The applicant’s personal circumstances
The applicant is 24 years of age. The AFTR report relied upon by the applicant provides the following in relation to his background:
(a) He is the sixth eldest child of ten. His parents, Zahara and Muhammad, are married and still together. His parents are devout Muslims.
(b) He was born and raised for the most part in Somalia. Due to armed conflict in the region, he spent his formative years surrounded by instability, uncertainty and inevitably murder, fighting and other atrocities. He reports witnessing killings and people dying around him from as early as he can remember.
(c) The applicant and his family migrated to Australia in 2018 as refugees.
(d) In 2022, his older brother, Khalid was murdered in a group attack in Heidelberg. Khalid was one of his best friends and the sibling he felt closest to. He has struggled to cope and accept the loss.
Criminal history
The applicant does not have any prior criminal convictions or findings of guilt.
The applicant’s contentions
As is entitled to do, the applicant relies the following combination of factors in support of his argument that the court should grant bail.
Strength of the prosecution case
In respect of the Informant Zalewski matter, the applicant denies all allegations in relation to VT, and relies on self‑defence to contest the charges involving GT. The applicant submits the footage capturing the incident is of mediocre quality, but depicts the applicant being taken out of his car and manhandled by GT for some time, before he defends himself.
In respect of the Informant Cox matter, the applicant submits identity is an issue due to the applicant allegedly wearing a face covering. The applicant notes items involved in the incident, including the taser, knife, vape and shoes, have not been located by police. Further, the complainant’s statements provided to police contain numerous contradictions. Finally, the applicant submits it is incredulous to allege the complainant was able to contact her stepmother while being restrained and multiple attempts were being made to obtain her phone.
Bail compliance history
The applicant notes he had been on bail from September 2022, and had not breached his bail conditions, but for the alleged offending in the Informant Cox matter.
Family support and stable accommodation
If released on bail, the applicant proposes to return to live with his parents and siblings at his home address in Thomastown. The applicant submits this is stable accommodation and his parents remain supportive of him.
The applicant’s father, Mohammad Mahat, gave evidence at the hearing. He stated that his son would be able to stay at the family home with him, his wife, two daughters, and other son. Mr Mahat Senior was not aware that his son had used drugs or alcohol in the past but stated that he would report any bail condition breaches to the police. Mr Mahat stated that drugs and alcohol were not allowed in the house.
Mr Mahat stated that he had at times exchanged messages with VT, but did not know her. It was not clear whether Mr Mahat was aware of the full extent of the allegations in relation to his son’s alleged actions against VT.
Employment
The applicant submits he has a strong employment history. Prior to his remand, he was employed in three casual positions in warehousing on a part‑time basis. He intends to work in a similar capacity if released, submitting he has job opportunities at Startrack Tullamarine doing warehouse packing and at Fantastic Furniture in Thomastown. No evidence was called at the hearing in relation to employment, and this submission was not advanced any further.
Education
The AFTR report relied upon by the applicant states he completed the VCE equivalent of years 11 and 12 at TAFE. He has completed the core curriculum of a diploma of Youth Work at RMIT, and only needs to complete a placement to obtain the degree. The AFTR report notes the applicant is determined to complete his studies.
Community involvement
The applicant submits he is involved in community work at Yarra Youth Services. Specifically, he attends several times per week to assist youth in his community in sporting and mentoring roles.
A letter from Elliott Stock of Yarra Youth Services dated 21 June 2023 has been provided in the filed material. The letter confirms the applicant has been consistently engaging with Yarra Youth Services since 2018 as a participant and notes his record as a positive role model in the Yarra community.
Special vulnerability
The applicant submits he has significant mental health and addiction issues, the latter of which escalated after the death of his older brother.
The AFTR report relied upon by the applicant confirms their clinical team have diagnosed him, in accordance with DSM‑5 criteria, with chronic poly‑substance use disorder, anxiety, depression and provisional acute stress disorder (a mild form of post‑traumatic stress disorder).
Availability of treatment or bail support services
The applicant relies on the support of the AFTR program. AFTR describes itself as a specialist outpatient rehabilitation provider founded in 2020 whose clients are in the criminal justice system.
As well as relying on the AFTR report, David Millar, the Chief Administrative Officer and program lead at AFTR, gave evidence at the hearing confirming that there are five full‑time staff members at AFTR and seven part‑time specialists and consultants. Clients of AFTR are treated on a one to one basis by clinicians. Mr Millar gave evidence that whilst it was hard to quantify the success rate of AFTR, of the 28 clients of AFTR this year, 22 are still engaged in treatment and abstinent.
Mr Millar assessed the applicant on two dates in October this year. Mr Millar’s colleagues conducted an alcohol and drug diagnostic assessment and also a psychometric test. On the second day of assessment, another diagnostic tool that tests for mental stability and wellbeing was deployed. Mr Millar gave evidence that in both sessions the applicant impressed upon his assessors a desire to seek a solution for his problems with substance abuse and the trauma following the murder of his brother.
If released on bail, the applicant proposes to immediately commence a 12 week (84 day) intensive outpatient rehabilitation program through AFTR. The program consists of:
(a) completion of a 12 unit course of cognitive behavioural therapy [‘CBT’], cognitive processing therapy [’CPT’] and prolonged exposure therapy;
(b) completion of 24 units of behavioural change treatment;
(c) individual daily AOD check‑in, counselling and activity sessions;
(d) individual daily curriculum;
(e) individual psychology twice a week;
(f) individual CBT, CPT & acceptance and commitment therapy [‘ACT’] three times a week;
(g) daily Alcoholics Anonymous [‘AA’] or Narcotics Anonymous [‘NA’] based recovery meetings;
(h) supervised urine screens three times a week; and
(i) optional fitting of a ‘Tamperproof’ wrist GPS tracker, which looks like a watch and functions like an ankle bracelet. Mr Millar and two other clinicians would receive notifications if the applicant was to enter or leave a geographical area programmed into the tracker. It was proposed that a curfew condition and geographical exclusion zone around VT’s house could be programmed into this device.
The first 28 days of the program would require the applicant to attend at AFTR from 9:00 am until 4:30 pm, with the remainder of the program being mainly online, but still requiring the applicant to attend AFTR around three times weekly. Mr Millar gave evidence that the out‑of‑pocket cost to the applicant for this program would be around $8,000.
Upon completion of the program, AFTR offers a free aftercare program which the applicant can access daily for as long as he needs.
AFTR are willing to provide an undertaking to report any breach of bail or bail conditions, including the provision of positive urine screens.
AFTR consider the applicant to be motivated and in a state of readiness to participate in alcohol and substance misuse rehabilitation, and mental health treatment specifically targeting his diagnosis of provisional acute stress disorder, with the goal of sustainable behavioural change.
The applicant submits treatment and rehabilitation should be a primary consideration in this application.
Delay and eventual sentence
The applicant submits a long delay is expected due to him contesting the charges. A contested committal was listed for hearing on 14 December 2023, with a trial to be listed if the matter cannot be resolved. It was submitted orally that the applicant may not secure a trial date until late 2024.
As at the date of hearing, the applicant had spent 187 days on remand (now 196). The applicant submitted that in 12 months’ time, the applicant may have spent more time on remand than any sentence to be imposed.
Unacceptable risk
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of following conditions of bail:
(a) reside at [an address] with his family in Thomastown in Victoria;
(b) not contact directly or indirectly any prosecution witnesses save for the informant;
(c) immediately commence the AFTR forensic treatment rehabilitation program conducted or managed by David Millar, and while there, comply with all requirements of same, including disclosure, submitting to observation and testing, and commit to attending appointments for drug and alcohol testing as outlined in the AFTR report;
(d) reporting as the court directs;
(e) not apply for any passport or international/interstate travel documents and not attend any points of international departure without leave of the Court;
(f) not leave the state of Victoria.
The applicant additionally relies on the presumption of innocence, noting the charges are contested, and save for the allegations, he does not have a history of family violence. He strenuously denies that he has access to any weapons, noting police have not located any weapons as part of their investigation.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the Court that exceptional circumstances exist that justify the grant of bail and that the applicant is an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail and/or interfering with a witness or otherwise obstructing the course of justice in any matter.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Nature and seriousness of the alleged offending and likely sentence
The respondent notes that the primary offence in the Informant Cox matter involving attempted armed robbery has a maximum penalty of 20 years’ imprisonment. Should the applicant be found guilty of the Informant Cox charges, it is submitted that the non‑parole period will well likely exceed any period of remand.
The respondent submits the element of pre‑planning and pre‑meditation and use of weapons, threats and physical violence against VT in the Informant Cox matter is of significant concern, is an objectively serious example of family violence, and demonstrates an escalation in the way the FVIO is alleged to have been breached.
The respondent similarly submits the Informant Zelewski charges involving VT’s father is serious offending.
Strength of the prosecution case
The respondent submits the strength of the prosecution case is understated in the affidavit in support, however concedes further evidence has since been provided to the applicant. In relation to the Informant Cox matter, the respondent notes the existence of:
(a) a time stamped recorded phone call during the alleged assault which includes audio of a reference to use of a taser, and sounds consistent to a taser being used;
(b) Optus call charge records confirming the complainant made and received a call during the alleged assault;
(c) an expert report establishing the applicant’s phone was detected in the areas alleged at the relevant time (which is inconsistent with the applicant’s record of interview in which he stated he was at home in Broadmeadows);
(d) time stamped phone footage of the incident downloaded from the female co‑offender’s phone (which also included a separate video from the day after the informant Cox offending showing her holding and operating a taser); and
(e) an explanation by VT for contradictions between her statements.
Criminal history
The respondent acknowledges the applicant does not have a criminal history.
Bail compliance history
The respondent notes the Informant Cox charges were allegedly committed while the applicant was subject to a grant of bail and submits that that the fact is alleged to have committed offences while on bail demonstrates a disregard for abiding by bail conditions.
Family violence intervention order in force
The respondent notes that the applicant has been recorded as the respondent in seven family violence reports to police, six of which involved the complainant, VT.
The respondent contests the applicant’s contention that VT would be protected by the existing FVIO, submitting it does not take into account the applicant’s disregard for court orders attempting to restrain his behaviour, particularly as they have related to VT.
The respondent outlines that the FVIO protecting VT has allegedly been breached in 2022 and 2023, with the latter breaches involving further family violence against her. The respondent submits the applicant has demonstrated he is prepared to engage others in breaching the FVIO and assaulting VT.
Complainants’ views on bail
The respondent advises that VT is extremely fearful the applicant will continue to contravene the final FVIO, carry out threats that he has made towards her, cause significant harm to her or kill her, if released from custody.
Bail support services
In cross‑examination, Mr Millar was questioned about whether, in his assessments, the applicant had made links between his offending and his substance use. The respondent noted Mr Millar’s evidence that this was not explored during assessments, but that part of the program offered by AFTR included a component on addressing anger, aggression and impulsiveness.
With respect to the proposed GPS tracker, the respondent notes that in cross‑examination it also emerged that AFTR staff members would generally only check their notifications during business hours or thereabouts, limiting the ability of breaches being promptly reported to the informant.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant has demonstrated that he has no regard for court orders involving the complainant, having breached both bail undertakings and intervention orders related to her. Noting the escalation in the applicant’s offending, the respondent states that police have grave concerns that the applicant will continue to contravene the current FVIO and cause significant harm to VT.
The respondent noted in oral submissions that if bailed, the applicant would be returning to the same situation he was in at the time he is alleged to have committed the alleged offences involving the three briefs of evidence against the complainant. Further, it was submitted that this is not a case where the applicant has demonstrated genuine insight into the alleged family violence, that he considers the relationship to be over, or that he intends to abide by FVIOs. Conversely, it was submitted that the treatment is proposed to focus on the applicant’s drug use, which would not alleviate the risk posed as significantly.
Committing an offence whilst on bail
The respondent similarly relies on the applicant’s disregard of court orders, noting the alleged breaches of bail and the FVIO.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submits the applicant has a strong incentive to interfere with witnesses, particularly VT, given the importance of her evidence and the prospect of a conviction for serious offences. The respondent refers to an attempt by the applicant’s sister to interfere with the complainant, by making a threatening phone call to VT, which has resulted in the applicant’s sister being charged.
Analysis and conclusions
As noted above, the applicant bears the burden of satisfying the Court that exceptional circumstances exist to justify the grant of bail.
If he succeeds in doing so, the onus then falls on the prosecution to satisfy the Court that:
(a) there is a risk that the applicant would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness, obstruct the course of justice in any manner, or fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk, that cannot be mitigated by the imposition of any bail conditions.
The application of these tests to the present matter was not in dispute between the parties. In reaching a conclusion in relation to both tests, the Court must consider the surrounding circumstances. With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
The parties in this matter disagreed on whether the exceptional circumstances test has been met in this case.
The exceptional circumstances test, although not impossible to reach, is a high threshold.[11] The applicant must show there are circumstances that are ‘right out of the ordinary’ to justify his release on bail.[12]
[11]Re Villani [2021] VSC 638, [34] (Tinney J).
[12]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
Nature and seriousness of the allegations
In my opinion, the allegations are serious examples of family violence, particularly given they involve weapons and an apparent escalation in seriousness over a period of time. The alleged use of a knife and a taser is highly concerning. It is apparent that VT sustained injuries during the course of the most recent series of events, such that she had to be assessed at hospital in relation to the Cox matters. The experience would have been painful, both physically and psychologically.
The allegations also involve instances of choking or strangulation, which are commonly accepted to be an indicator of, or risk factor, for homicide.
The allegations also suggest a level of premeditation, particularly regarding the Cox matters. The offenders in this matter picked up VT, and it seems clear they intended to harm or rob her from this point, particularly given they possessed weapons and had obscured their faces with masks and hoods. It is of concern that in the context of family violence allegations, which more frequently involve violent behaviour between two parties as part of a relationship, that the applicant is alleged to have involved other parties in the events that took place in the parkland. The allegation of preplanning and premeditation, the use of the car and the assistance of other individuals, including the filming of the events, aggravate the allegations to a most serious level. Furthermore, the physical events were attended by serious threats, in the context of past threats to kill. In one instance, the applicant is also alleged to have attacked VT’s father.
Further, the allegations demonstrate a disregard for court orders, given the FVIO in place at the time the offences were committed against VT, and a level of persistence in attacking VT. The allegations occurred across a number of dates in relatively quick succession. The applicant is also of course aware of VT’s residential address. In my opinion, there is therefore a significant risk that if bailed, the applicant will again attack VT, alone or in a gang. It does not appear that the applicant presently has any insight into the relationship or the seriousness of family violence orders.
Nature and strength of the prosecution case, delay and possible sentence
Subsequent to the hearing of the matter, the Court was provided additional material from the parties, namely the three statements of the complainant VT, and a series of videos of the alleged attack in the Cox matter, and its aftermath, along with a statement from the informant explaining how these videos were obtained. It is patently clear from these videos that VT was kicked to the head, as well as it being alleged that she was tasered a number of times. The sound of a taser can be heard at two points. At the same time, it is fair to observe that the identity of the offender and co‑offender is somewhat obscured given the clothing worn.
While it is too early and indeed not the role of this court, to form firm conclusions about the strength of the prosecution cases, they do not appear to me to be weak, or foredoomed to fail. In my opinion it is a case that appears quite sustainable from the prosecution’s point of view, given a number of circumstances, particularly the broad consistency in the account of the VT, the Snapchat videos and recordings of bystanders, and cell‑tower evidence. Of course, there are triable issues, particularly in relation to identity, and the applicant denies the allegations presently.
Overall, in my opinion, should the applicant be found guilty of the alleged offending, he likely faces the prospect of a term of imprisonment. I accept the submission that it may not be until late 2024, even at the earliest. The applicant may then have been on remand for 18 months, which is a significant period for a young man with no previous criminal history. Despite this, these are serious family violence allegations and the delay must be seen in that context.
Personal circumstances and criminal history
I accept the applicant is a relatively young man with his life ahead of him. He has no criminal history and has been in custody for six months. He has also faced the traumatic experience of his brother’s murder. I have taken these factors into account.
Bail support proposals
With respect to the bail support proposed to be provided by AFTR, it appears that the program proposed is intensive, and largely designed to address the applicant’s alcohol and potential mental health issues. It appears that the AFTR staff are trained specialists and they appear to have a good success rate in relation to abstinence of clients, despite being a relatively new organisation.
There are however notable limitations on what is proposed. In my opinion it is not sufficiently clear that there is an established link between the applicant’s alcohol use and his alleged family violence offending, such as to say that such treatment may reduce his risk of any further offending.
Further, the GPS tracking proposed may work to ensure that the applicant is not able to approach VT without his clinicians being alerted, however, I note that the informant or her nominees would not be immediately notified of any such breach. Outside of normal business hours, or on busy days, there is a chance that these alerts would go unnoticed for a number of hours. There is little utility to a geographical restriction being imposed on the applicant during curfew hours, if during such hours, those tasked with monitoring his compliance would not be checking the devices.
Family support and special vulnerability
I accept the applicant has supportive family members. Their support appears unwavering, however it must be said that Mr Mahat did not appear fully appraised of the allegations, or have had much knowledge of his son’s relationship with VT. I harbour some concerns that his family would not be able to properly manage or supervise their son. Mr Mahat was adamant that drugs and alcohol would not be used in his house, and that breaches of bail simply would not occur were his son to return to the family home. In my opinion this appears a somewhat unrealistic and overly optimistic view.
I have also taken into account the various diagnoses mentioned in the AFTR report, notably relating to the applicant’s substance use disorder, anxiety, depression and mild PTSD. The applicant is undoubtedly still struggling with the death of his brother. These mental health issues should be addressed, and are naturally compounded by the experience of custody.
Conclusion on exceptional circumstances
All of the above considered, in all the circumstances I am not prepared to accept that the applicant has satisfied the exceptional circumstances test required to grant bail.
As a result, the application must be dismissed.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Notwithstanding the conclusion that the applicant has not satisfied the exceptional circumstances test, I make the following brief comments surrounding the second limb of the inquiry regarding whether the applicant poses an unacceptable risk.
The question to ask is whether any of the risks set out in the Act could be made acceptable by the imposition of conditions. It is not a question of whether risk can be eliminated, but rather whether it can be reduced to an acceptable level.
In all the circumstances, I do consider the applicant poses an unacceptable risk of committing further offences or endangering public safety if granted bail. I do not consider that sufficient conditions could be put in place to ameliorate the risk to an acceptable level, for the following reasons.
In particular, the nature and seriousness of the allegations are extremely concerning. Over a period of time, and on a number of occasions, the violent behaviour of the applicant is alleged to have escalated against the same complainant. It is alleged he appears to have lacked insight into his behaviour, and in my opinion, there is little to suggest that the risk in respect of VT has ameliorated. Furthermore, in respect of the Cox allegations I am particularly concerned that the applicant is alleged to have engaged a number of other people to assist him in the events that involved inviting the complainant to enter a motor vehicle where others were present and disguised, transporting VT to a parkland area, and then all present offenders acting in company to commit violent offending on her, including filming her. In my opinion the engagement of co‑offenders who supported but also engaged in the applicant’s alleged violent behaviour has taken the context of family violence to a higher and new level of aggravated conduct. Also of relevance is that whilst the female co‑offender alleged to have been filming the violence has been identified with the investigation in relation to her being ongoing, the male co‑offender remains at large in the community. The applicant has not identified who these people are.
Second, I am not satisfied that the type and extent of treatment proposed through AFTR is such that it can sufficiently reduce the risk that the applicant will commit further offences against VT himself, or direct others to do so. I am also not satisfied that the applicant’s family would be able to supervise him sufficiently to ameliorate this concern. VT is entitled to live in peace, absent the fear she will be the subject of another attack. In short, I am not satisfied that the risk of further offending, notably the risk of further family violence, can be reduced to an acceptable level.
Accordingly, the respondent has satisfied me that the applicant poses an unacceptable risk that cannot be ameliorated by the imposition of bail conditions, pursuant to the statutory test.
Conclusion
Accordingly, taking all matters into account and weighing them, the application will be refused.
---
0
4
0