Re Matemberere
[2018] VSC 762
•7 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0303
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for Bail by Allen Matemberere |
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 December 2018 |
DATE OF JUDGMENT: | 7 December 2018 |
CASE MAY BE CITED AS: | Application for Bail by Allen Matemberere |
MEDIUM NEUTRAL CITATION: | [2018] VSC 762 |
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CRIMINAL LAW – Application for bail – Applicant charged with series of offences related to armed robbery – Shortly before offending applicant received 12 month adjourned undertaking without conviction for unrelated offending pursuant to s 75 of the Sentencing Act 1991 – Whether subsequent offending occurred while applicant ‘serving a sentence’ for the purpose of s 4AA(2)(c)(v) of the Bail Act 1977 – Whether exceptional circumstances test applies – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P Smallwood with Ms C Blackeney | Greg Thomas Barristers and Solicitors |
HIS HONOUR:
The applicant, Allen Matemberere, aged 28, was arrested on 5 September 2018 and charged with the following offences: armed robbery, intentionally causing injury, threat to inflict serious injury, assault in company and theft.
These offences arose out of an incident that occurred on the afternoon of that same day, when the applicant and a co-accused entered a residence occupied by the complainant in this matter. The applicant is alleged to have assaulted the complainant by punching him to the left side of his face, and to have threatened to kill or injure him. The applicant and his co-accused are alleged to have stolen the complainant’s rings and watch.
The complainant and the applicant were known to each other. It is alleged that they had conflicts in the past, where the complainant alleges that the applicant had physically assaulted him, and the applicant alleges that the complainant had racially abused him.
The applicant first applied for bail at the Melbourne Magistrates’ Court on 5 October 2018. Bail was refused on the basis that he had not shown exceptional circumstances.
The matter is currently listed for a contested committal hearing on 15 January 2019. The applicant has been in custody since 5 September 2018. He currently has one other matter outstanding, involving the offences of burglary and theft which are alleged to have been committed on 19 July 2018. The applicant has not yet been served with the summons in relation to those matters.
The applicant’s co-accused is facing one charge of armed robbery. On 29 October 2018, he indicated, at a committal mention, his intention to plead guilty. His matter is currently listed for plea on 23 January 2019 in the County Court. He did not apply for bail.
The alleged offending
The prosecution case is that at approximately 1:27 pm on 5 September 2018, the applicant and the co-accused attended the residence of an associate at a unit in South Yarra. The associate, who was in Warrnambool at the time, had given both the applicant and the complainant permission to access his unit while he was away.
The applicant was heard calling out to his associate who resided at the South Yarra unit, and knocking on the door, before entering the premises through the back entrance. He was followed by the co-accused who had picked up a wooden walking stick with a brass ‘pig’s head’ from outside the premises. The complainant was inside the unit at the time.
Once inside, the applicant threatened to kill or injure the complainant. He allegedly punched the complainant with a closed fist to the left side of his face, and forced him back onto the mattress on which he had been lying. The co-accused then struck the complainant to the left side of his head with the brass part of the walking stick, causing him to bleed profusely.
The complainant was further assaulted by the co-accused with the walking stick while curled up in a foetal position on the mattress. He was then told to hand over his rings and his watch to the offenders, and was further assaulted by the co-accused with the walking stick. This caused a pre-existing wound to split open.
While trying to remove his rings from his fingers, the co-accused threatened the complainant to take them off, or have his fingers cut off. The complainant eventually escaped and sought assistance from the office of the Department of Housing located nearby.
Police were called immediately after the incident. The applicant was located at his temporary residence, where police seized a blood-stained jumper which was allegedly worn by the applicant during the incident. The co-accused was found with the complainant’s rings on his finger and watch on his wrist. Both offenders were arrested and transported to Prahran Police Station for an interview.
During the record of interview, the applicant admitted to having hit the complainant twice to his face in order to ‘shut him up’. He stated that it was the co-accused who had assaulted the complainant with the walking stick, and who had demanded property from him. With respect to the blood stains on his clothing, he claimed that his clothes were stained because he was trying to protect the complainant from the co-accused. The applicant denied having made any threats, or having stolen any property, or having kicked the complainant.
The applicant’s background
The applicant was born in Zimbabwe. He moved to New Zealand with his family at the age of five. He then migrated to Australia in 2013 and has lived with his sister in Prahran ‘on and off’. Since the beginning of this year, he has been ‘couch surfing’ with friends and does not have a fixed address.
The applicant has a limited criminal history. On 29 August 2018, he was sentenced, pursuant to s 75 of the Sentencing Act 1991, to a ‘without conviction adjourned undertaking to be of good behaviour for 12 months’. That sentence was imposed for a series of offences, committed on separate occasions. There included criminal damage, theft (three charges), committing an indictable offence whilst on bail and failing to answer bail (two charges).
The applicable legislation
This application was filed on 26 November 2018. Accordingly, it is governed by Authorised Version No 142 of the Bail Act 1977 (‘the Act’).
That reprint contains amendments (which commenced on 1 October 2018). These amendments changed the mechanism by which Schedule 2 offences, under the Act, attract the ‘exceptional circumstances’ test, rather than the somewhat less rigorous ‘compelling reasons’ test.
The current version of the Act relevantly provides as follows:
4AA When 2 step tests apply
(1) The step 1—exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.
(2) The step 1—exceptional circumstances test also applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if—
…
(c) the offence is alleged to have been committed—
…
(v) while the accused was otherwise serving a sentence for any Schedule 1 offence or Schedule 2 offence;
…[1]
[1]Emphasis added.
A preliminary matter raised in this application concerns the interpretation of s 4AA(2)(c)(v) of the Act. There is a dispute between the parties as to whether the applicant was, at the time he allegedly committed these offences, ‘otherwise serving a sentence’ within the meaning of that expression in that particular provision.
As previously indicated, the applicant, having been found guilty of a series of offences on 29 August 2018, was dealt with under s 75 of the Sentencing Act 1991. The Magistrates’ Court, without recording a conviction, ordered that the proceeding against him be adjourned for a period of 12 months upon his giving an undertaking with conditions attached. Those conditions included that he be of good behaviour during the period of the adjournment . In the event that the applicant observed the conditions of the undertaking, the charges brought against him would be dismissed without any further hearing.[2]
[2]Sentencing Act 1991 s 75(6).
The preliminary question to be resolved is whether an order of that kind should be regarded as constituting thereafter the serving of a sentence. If so, the offences allegedly committed a week or so after the order was made automatically require the applicant to demonstrate exceptional circumstances in order to qualify for bail. If not, the lesser hurdle of compelling reasons will apply.
The applicant placed great emphasis upon the word ‘serving’ within the composite phrase ‘serving a sentence’. He submitted that a person on an adjourned bond, subject to conditions, could not, in ordinary parlance, be described as thereby ‘serving a sentence’. He relied on upon two decisions in support of that contention.
The first was R v Kuru.[3] There, the Court of Criminal Appeal had to determine whether an offender who had been released on parole, was still ‘serving’ a sentence with which an actual custodial sentence could be served concurrently. The Court observed that when a prisoner was on parole, he would not, in ordinary parlance, be said to be ‘serving a sentence’.[4]
[3](1995) 78 A Crim R 447 (‘Kuru’).
[4]Ibid 449.
The second case upon which the applicant relied was R v Gorman,[5] in which Kuru was distinguished on the basis that the applicant’s parole had been revoked. The Court of Appeal said that in these circumstances, the prisoner was to be regarded as ‘serving’ the original sentence.
[5]Unreported, Victorian Court of Appeal, Hayne JA, Charles JA and Crockett AJA, 10 August 1995.
In response, the Crown relied upon a decision of Kaye J in WBM v Chief Commissioner of Police,[6] where his Honour held that under s 3 of the Sex Offenders Registration Act 2004, the sentence being served by the particular offender was not the period of imprisonment imposed by the sentence which was suspended, but rather the operation period. The word ‘serving’ was to be construed as applying to a person who was then undergoing, or subject to, a suspended sentence of imprisonment.
[6](2010) 27 VR 469 (‘Gorman’).
Justice Kaye said this:
… it is clear that the word ‘serving’ is intended to bear the meanings referred to in both the Oxford English Dictionary and the Macquarie Dictionary, namely, as a participle of the verb ‘to serve’ in the sense of ‘to go through’ (a term of service, imprisonment etc) or to ‘undergo’ such a term. Thus, it is clear from the context of para (d), and from the whole of the definition of ‘existing controlled registrable offender’, that the word ‘serving’ is to be construed as applying to a person who was then undergoing, or subject to, a suspended sentence of imprisonment.
That construction is fortified by paras (e), (f) and (g) of the definition of ‘existing controlled registrable offender’, in which, respectively, the word “serving” is used in connection with a community service order, a good behaviour bond, or a non-custodial supervision order within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. In that context, it is clear that para (d), like paras (e), (f) and (g), is intended to apply to a person who is subject to a particular sentencing order, the operational period of which has not expired by 1 October 2004.
For those reasons I reject the first submission by Mr Nekvapil, namely, that the plaintiff was not, immediately before 1 October 2004, serving the suspended sentence of imprisonment imposed on him under s 27(1) of the Sentencing Act.[7]
[7]Ibid 475 [22] – [24].
Counsel for the applicant submitted that the earlier decisions of this Court in Kuru and Gorman should be followed. He said that they led to the conclusion that one could not serve a sentence unless it involved actual custody.
Senior counsel for the respondent submitted that this was altogether an erroneous interpretation of the relevant phrase, and that an offender subject to an adjourned bond, under s 75 of the Sentencing Act 1991, was relevantly serving a sentence for the period of that adjournment.
There is no question but that an order under s 75 is relevantly a ‘sentence’ for the purposes of the Criminal Procedure Act 2009. Section 3 of that Act defines ‘sentence’ to include an order made under pt 3BA of the Sentencing Act 1991, and an adjourned bond falls within that part of that Act. Accordingly, there can be an appeal against sentence in relation to such an order. Nonetheless, counsel for the applicant submitted that a different, and narrower, view should be taken when it came to construing the relevant ‘trigger’ provision of the Bail Act 1977.
In my opinion, the entire tenor of the Bail Act 1977, in its present form, manifests a legislative intention to make it significantly more difficult for individuals who allegedly offend again, having previously been dealt with for other offences, to be granted bail. The extrinsic material, to which I was referred, uses the term ‘undergo’ as synonymous with ‘serve’, and it is in that sense that I think s 4AA(2)(c)(v) should be construed.
I accept that this interpretation can give rise to seemingly odd consequences. For example, an offender who is fined is plainly not serving a sentence. That is true, even if he or she is given time to pay, or can pay, by instalments. Yet, an adjourned bond under s 75, which theoretically is more lenient than a fine, produces the paradoxical result that a further offence during the period of that bond triggers the exceptional circumstances requirement for bail, whereas the fine does not. That seems to me to be an inexorable result of the language the legislature has chosen to use.
Accordingly, the applicant must satisfy the exceptional circumstances threshold if he is to be granted bail.
The applicant's contentions in support of bail
It was submitted on behalf of the applicant that the following matters were established by evidence, and satisfied both ‘exceptional circumstances’ and also showed ‘a compelling reason’ for the grant of bail:
(a) the applicant’s limited prior criminal history;
(b) the applicant had been assessed and recommended for brief crisis intervention by CISP;
(c) the applicant had stable accommodation available to him upon release at his sister’s home in Prahran;
(d) the applicant will have been on remand for 132 days by the time that his committal is heard; and
(e) given the applicant's limited criminal history, it would be reasonable to assume that he might receive a community correction order, either alone or in combination with the time he would have spent in custody before being sentenced. There was a real risk, therefore, that he could spend more time on remand if denied bail, than he would ultimately have to serve when sentenced.
The Crown's contentions in opposing bail
Senior counsel for the Crown submitted that on the material before this Court, the applicant had not discharged the burden of demonstrating exceptional circumstances. Indeed, it was submitted that his case fell far short of meeting that standard.
Further, it was submitted that if the Court were to find that exceptional circumstances had been established, there would nonetheless be an unacceptable risk that the applicant would endanger the safety or welfare of persons, commit further offences whilst on bail, and fail to surrender himself into custody in answer to his bail.
It was submitted that the proposed address at which the applicant would live if bail were granted is unsuitable because the applicant’s sister was planning to travel overseas from 17 December to 28 December of this year. She gave evidence that while she was away, her brother-in-law would be present at the house. She said that her brother-in-law would not be working at that time, and thought that he would be there at all times.
Senior counsel referred to the CISP report. The affidavit filed in opposition to bail noted that CISP had only agreed to pay for one night's accommodation at Coburg Motor Inn. After that night, the applicant was encouraged to make contact with Launch Housing to explore longer term options. It was submitted that the Coburg Motor Inn had a reputation as being synonymous with crime, and further submitted that CISP had not offered any long term solution to the applicant’s problems regarding housing.
With respect to the risk of failing to appear, it was submitted that the applicant was not an Australian citizen. He currently holds a New Zealand passport and a special category visa which allows him to remain indefinitely in Australia. However, he has relatives overseas, and could therefore be a flight risk.
Further, it was submitted that the applicant posed an unacceptable risk of endangering the safety or welfare of others, including the complainant. That risk was heightened by the fact that the applicant knows where the complainant lives.
Conclusion
In my opinion, the applicant has failed to demonstrate that there are exceptional circumstances warranting the grant of bail. If I were wrong in requiring that test to be met, he would still fail to show compelling reasons why bail should be granted.
The alleged offending in this case was serious. As senior counsel for the Crown submitted, this particular offence had a number of nasty features associated with it. The threat to cut off the complainant’s fingers if he did not immediately remove his rings, was just one such feature. The actions of the co-accused in repeatedly striking the complainant to the head with a weapon of the kind used in this case were reprehensible. On the prosecution case, the applicant was jointly involved in the commission of that offence. The evidence against the applicant seems, on its face, to be reasonably strong. If convicted, he faces a substantial term of imprisonment.
I am also satisfied that the applicant poses an unacceptable risk of further offending if he were to be granted bail. The alleged offending in this case occurred within a week or so of his having been afforded considerable leniency by being granted an adjourned bond for a series of offences committed over a period of time.
In the circumstances, the order of the Court is that the application for bail is refused.
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