Re Mallouk - [2019] VSC 661

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0189

IN THE MATTER of the Bail Act 1977 (Vic)
- and -
IN THE MATTER of an application for bail by SHADDY MALLOUK

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2019
DATE OF JUDGMENT:	26 September 2019
CASE MAY BE CITED AS:	Re Mallouk
MEDIUM NEUTRAL CITATION:	[2019] VSC 661

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CRIMINAL LAW — Bail — Charges of burglary, attempted burglary, theft, arson and dealing with proceeds of crime — Community Corrections Order in force at the time of offending — Whether compelling reason established — Substantial offending over a 5 month period — Applicant aged 23 — Delay of 17 months before trial — Supportive family and accommodation — Compelling reason established — Risk ameliorated by strict conditions – Bail granted — Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4C, 4D, 4E— Re Ceylan [2018] VSC 361; Re Alsulayhim [2018] VSC 570 confirmed — Re Gaylor [2019] VSC 46 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Hannebery QC	Michael Gleeson & Associates
For the Respondent	Mr S Devlin	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Shaddy Mallouk (the ‘applicant’). He is charged with a total of 33 offences, including attempted burglary (7 counts), burglary (14 counts), theft (9 counts), arson (2 counts) and dealing with property suspected of being the proceeds of crime. The charges relate to a series of attempted burglaries, burglaries and thefts on commercial premises between 14 January 2019 and 4 June 2019 — the day on which the applicant was apprehended.

Significantly, during part of this period of offending, the applicant was subject to an 18-month Community Corrections Order (‘CCO’). The CCO was imposed following a conviction for burglary on 1 September 2017 and expired on 1 March 2019.

The applicant is alleged to have committed a number of indictable offences whilst subject to a CCO for indictable offence, which is a Schedule 2 offence within the meaning of the Bail Act 1977 (Vic) (the ‘Act’). He is therefore required to demonstrate a compelling reason that justifies the grant of bail.[1]
[1]See Bail Act 1977 (Vic) ss 4AA(3) and 4C (‘Bail Act’).

Procedural history

The applicant has been in custody since 4 June 2019. A previous application for bail before the Melbourne Magistrates' Court on 1 July 2019 was refused on the basis that he had failed to demonstrate a compelling reason. The present application for bail was filed on 5 September 2019.

The committal in this matter proceeded by way of a straight hand-up brief and is now listed for a trial in the County Court on 5 October 2020.

In addition to the matters outlined above, the applicant is also charged on summons with contravening the CCO imposed on 1 September 2017. That matter is next listed for hearing on 26 November 2019 at the Werribee Magistrates' Court.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Mallouk

Details

AGLC: Re Mallouk [2019] VSC 661
Case: [2019] VSC 661
Decision Date: 26 September 2019

CaseChat Overview and Summary

The case of Re Mallouk involved the defendant, aged 23, who was applying for bail while facing multiple serious charges including burglary, attempted burglary, theft, arson, and dealing with the proceeds of crime. The defendant had a Community Corrections Order in place at the time of the alleged offending, which spanned a five-month period. The matter was heard in the County Court of Victoria.

The central legal issue before the court was whether a compelling reason existed to grant bail to the defendant. Factors considered included the severity and frequency of the offences, the defendant's age, the significant delay of 17 months before the trial, the support of the defendant's family, and the availability of suitable accommodation. The court also needed to weigh these factors against the risk to the community and the defendant's likelihood of attending court.

The court found that a compelling reason was indeed established, primarily due to the 17-month delay before the trial and the defendant's supportive family environment. The court recognised that the risk posed by the defendant could be mitigated by imposing strict bail conditions. It was noted that the defendant had been compliant with the Community Corrections Order prior to the current charges, and there was no evidence suggesting a high risk of reoffending if granted bail. The court referenced previous cases such as Re Ceylan and Re Alsulayhim to support its decision. Ultimately, the court concluded that the benefits of granting bail outweighed the risks, and bail was granted subject to stringent conditions.

The final orders of the court included the defendant being granted bail, with conditions such as regular check-ins with a supervising officer, adherence to a curfew, and restrictions on travel and contact with certain individuals. The court also ordered that the defendant must reside at a specified address and refrain from any criminal activity.

Orders