Re Mirkovic
[2023] VSC 27
•25 January 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0006
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER OF an Application for Bail by DAMON MIRKOVIC |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2023 |
DATE OF RULING: | 25 January 2023 |
CASE MAY BE CITED AS: | Re Mirkovic |
MEDIUM NEUTRAL CITATION: | [2023] VSC 27 |
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CRIMINAL LAW – Application for bail – Applicant charged with aggravated burglary, theft, obtaining property by deception, dishonestly receiving stolen goods, possessing a drug of dependence – Criminal history – Applicant subject to outstanding bench warrants in New South Wales – History of non-compliance with CCO – Availability of bail support – Delay not considered to be significant – Strength of prosecution case – Exceptional circumstances not found – Unacceptable risk – Bail refused - Bail Act 1977 (Vic) ss 1B, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Clamart | Matthew White & Associates |
| For the Respondent | Mr S McGinness | Victoria Police |
HIS HONOUR:
By application dated 10 January 2023, Damon Mirkovic (‘the applicant’) seeks a grant of bail in respect of the following charges laid by Detective Senior Constable Magnus Vaisnys on 26 August 2022:
· Obtaining property by deception;
· Dishonestly receiving stolen goods;
· Aggravated burglary;
· Theft (three charges); and
· Possessing a drug of dependence.
The applicant has been on remand since he was charged. He applied for bail on 16 September 2022, and for a second time on 12 December 2022, at the Sunshine Magistrates’ Court. Both applications were refused, first on the basis that the applicant had not demonstrated exceptional circumstances, and second on the basis that he had not shown new facts or circumstances.
The matter is next listed at the Melbourne Magistrates’ Court on 22 February 2023 for a summary contest hearing.
The circumstances of the alleged offending in the informant Vaisnys matter are as follows.
Background
Thefts
On 25 August 2022 at around 3:00am, four people went to a residential property in Hillsdale Avenue in Maribyrnong. Two of them entered the house and stole the keys to two cars – a BMW and a Mercedes Benz, which was a rental car. The offenders then stole the Mercedes Benz in which there was a wallet containing some credit cards.
Obtaining property by deception and dishonestly receiving stolen goods
Three transactions were subsequently made using one of the stolen cards at a petrol station in Braybrook totalling $86.94. It is alleged that CCTV footage depicts the applicant making the purchases with the stolen card.
Aggravated burglary and thefts
The following day, 26 August 2022, at around 12:31am, three men were observed loitering near a car parked outside the same property in Hillsdale Avenue as before. Police allege that members of the group, including the applicant, returned to steal the BMW for which they had taken the keys the previous day. The car was not there, however, and the group left.
The applicant and the other two men then went to an address in Woodruff Avenue in Maribyrnong, where they forced open a garage door to gain entry, while the residents were asleep upstairs.[1]
[1]Exhibit NPW-1 of the affidavit in response, informant’s report [21].
Once inside, the applicant and other offenders stole the following items:[2]
· A Dyson vacuum cleaner;
· A Makita tool box; and
· A golf club.
[2]Note that the charge sheets give this individual as the complainant, while the summary in the brief also refers to Nhu Pham. Nhu Pham’s statement in the brief of evidence states that Tranh Ta is their partner and they live together.
CCTV footage from the neighbour’s property allegedly shows the three carrying property away, with police later locating some stolen items that had been dropped in a neighbour’s driveway.
Police were called by a witness and arrived to see two of the men fleeing the scene. They were followed, and a co-accused Luke Knight was arrested nearby. The applicant fled on foot and CCTV allegedly depicts him in nearby Shearwater Crescent. According to the brief of evidence, Tremain Edwards is believed to have then returned to the address and stolen a Kia Carnival motor car, though no charges have been laid in respect of this.
Police analysed the contents of Luke Knight’s phone which led them to believe that other suspects were living at the Discovery Caravan Park in Braybrook.
On 26 August at around 9:00am, police went to the caravan park and observed the stolen Kia parked at the front entrance. Police attended unit 203 and the applicant answered the door.
Police subsequently executed a search warrant on the unit, and arrested the applicant. Some of the stolen credit cards were found amongst co-accused Knight’s possessions. The applicant was found in possession of 0.15 grams of methylamphetamine.
During the course of the police interview, the applicant admitted to having drugs in his possession, but the summary in the brief of evidence states that he made no other admissions.
At the time of his arrest the applicant had four outstanding bench warrants in New South Wales. These are addressed in the section below regarding the applicant’s criminal history.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).
The parties agree that, in order to be granted bail, the applicant needs to satisfy the Court of exceptional circumstances that justify the grant of bail. This is put on the basis that the applicant is accused of a Schedule 2 offence (e.g. aggravated burglary) alleged to have been committed during the period of a Community Corrections Order (CCO) made in respect of the applicant for a Schedule 2 offence (aggravated burglary).[3] The burden of demonstrating that exceptional circumstances exist is on the applicant.[4] In considering whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[5]
[3]Sch 2, item 22(b); ss 4AA(2)(c)(iv) and 4A(1)-(1A) of the Act. The CCO was imposed on 19 December 2019 by the County Court at Melbourne for a period of four years.
[4]Ibid s 4A(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must then move to consider the unacceptable risk test.[6] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[7] In considering whether a risk is unacceptable, the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[8]
[6]Ibid ss 4A(4), 4D(1)(a).
[7]Ibid ss 4D(2)-(3), 4E.
[8]Ibid s 4E(3).
Co-accused
Luke Knight (DOB: 17 September 1994) is the only co-accused in this matter. Knight was charged on 26 August 2022 with:
· Aggravated burglary (two charges); and
· Theft (four charges).
He was bailed on 23 November 2022 in the Sunshine Magistrates’ Court with conditions.
He has one without conviction disposition on his criminal history. In August 2016, he was placed on a good behaviour bond and ordered to pay a donation for charges of theft of a motor vehicle, fail to answer bail, and driving offences.
The applicant’s personal circumstances
The applicant is 25 years old.
According to the CISP reports exhibited to the affidavit in support:
(a) The applicant has a history of illicit substance use and episodes of problematic alcohol consumption. He began consuming cannabis at 16, progressing to regular use of methylamphetamine at age 19. He maintained sobriety for a period, however by May 2022, the applicant reports he was excessively using GHB and methylamphetamine, at which time his relationship with his fiancée, with whom he has two young sons, ended.
(b) The applicant struggles to regulate his emotions, and his mental health has deteriorated following the breakdown of his relationship.
(c) Finally, the applicant has acknowledged that he has a gambling problem – stating that he has lost millions on betting and has spent around $80,000 on gambling this year alone, resulting in considerable debts. The applicant reports that he has been linked with gambler’s help in custody, which he wishes to continue in the community, as well as seeking financial counselling.
Criminal history
The applicant has a criminal history.
His only Victorian matter was dealt with by the Melbourne County Court on 19 December 2019 in relation to an aggravated burglary charge. He was given a CCO for four years which included 400 hours of unpaid community work along with supervision and assessment conditions. The respondent reports that the Wodonga Department of Justice has indicated that the applicant has been non-compliant with this CCO, and 376 work hours remain outstanding. The applicant has accrued five unacceptable absences.
In the course of the hearing of the application, Mr Clamart put forward his client’s instructions that there was a time during COVID when the CCO was suspended for a period of time. Also noted was that there may be contravention proceedings on foot in relation to that particular matter.
Furthermore, the applicant was convicted by the Albury Local Court in New South Wales in absentia on 17 June 2022 in relation to 29 charges of dishonesty offences. He was also convicted on 21 June 2022 of install/use optical device without consent, in the same court. Warrants for his arrest were issued following these convictions, which remain unexecuted, for the purpose of having the applicant brought before the court for sentencing. Further, on 11 July and 29 July 2022, bench warrants were issued in New South Wales for the applicant’s arrest, in relation to allegations of an assault and “judicial offences”.
Further information was provided to the Court at the hearing of this application which appears to confirm that the applicant has four different outstanding matters in New South Wales, two of which involve matters awaiting sentence, and also two outstanding matters that have not yet been dealt with. In the circumstances, it is clear that the applicant has a number of warrants that have been issued for his arrest in New South Wales, and that appears to be at this point beyond dispute. There appears to have been no dispute about this.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
The applicant submits that the prosecution case for the charges relating to the stolen credit card relies primarily on CCTV footage of the individual in question making the transactions. It is submitted that identity is a triable issue as the person depicted is wearing a hat, face mask and has no distinctive marks or tattoos. While the prosecution also rely on the credit card being found in the premises where the applicant was arrested, the applicant notes that it was found amongst co-accused Knight’s belongings.
The applicant submits that the case for the aggravated burglary and theft charges is weak and circumstantial. No witnesses have identified the applicant, nor was a photoboard or parade used to confirm his identity. It is also submitted that the CCTV footage is unclear and does not assist the prosecution case in proving identity. The applicant submits that the thrust of the prosecution case is the fact that the applicant was found at the Discovery Caravan Park, which is connected to co-accused Knight. However, the applicant was found at this address some eight and a half hours following the alleged offending. The applicant notes that he made no admissions and submits that the prosecution will be unable to prove the charges beyond reasonable doubt.
The applicant acknowledges that the case in relation to the drug possession charge is strong.
Family support and stable accommodation
The applicant submits that his mother, Sofia Mirkovic, is able to offer her home address in Wodonga, as a bail address.
At the hearing of the application, the applicant called evidence from Mrs Mirkovic, who indicated that she was aware of all of the outstanding matters facing the applicant, but nevertheless confirmed she is willing to offer her house as a bail address, and that she will provide ongoing support and will further contact police in the event of non-compliance should the applicant be granted bail.
First time in custody
The applicant states that this is his first time in custody and submits that this makes him inherently more vulnerable.
Availability of treatment or bail support services
The applicant seeks the support of CISP. On both 15 September 2022 and 9 December 2022, the applicant was recommended for case management by CISP ahead of his bail applications in the Magistrates’ Court. On 24 January 2023, the applicant filed an updated CISP report which confirms again that the applicant is recommended for support by CROP.
The applicant submits that CISP support is significant, as it will assist him to address his various issues. While the applicant is still on the CCO imposed in 2019, CISP is submitted to be a more intensive program where the Court is directly involved in supervising compliance with bail on a monthly basis.
At the hearing of the application, evidence was called from Fiona Devlin, author of the CISP report filed on 24 January 2023. In the course of her evidence, Ms Devlin had put to her a more full explanation of the outstanding matters in New South Wales, and reference was made to the CCO and that was explained. She indicated nevertheless that she would not alter the recommendations put forward in her report.
Delay and likely sentence
The applicant submits, with reference to various authorities, that delay can amount to exceptional circumstances in and of itself. This, it is submitted, can be so regardless of whether time on remand is likely to exceed that of sentence or not.
The applicant notes that the matter is listed for summary hearing commencing on 22 February 2023. This delay, it is conceded, is not inordinate, however, the applicant has a ‘very limited’ criminal history in Victoria, and the applicant states that the respondent is not alleging any interstate criminal history. It is submitted that the applicant is unlikely to be found guilty of the aggravated burglary and theft charges, and as such, it is likely that time on remand will exceed any likely sentence.
Parity
The applicant submits that the fact that co-accused Knight has been granted bail is a relevant consideration, particularly as the case against Knight is much stronger than against the applicant.[9]
[9]The applicant cites Re Application for Bail by CO and Anor [2022] VSC 138, [90] as authority for this proposition.
Unacceptable risk
The applicant submits that, with the imposition of conditions, the risk he poses is not an unacceptable one. The proposed bail conditions are that the applicant:
(a) Reside at [redacted address], in Wodonga;
(b) Not to associate with any of the co-accused;
(c) Report daily to the Wodonga police station between 6:00am and 10:00pm;
(d) Not to leave his bail address between the hours of 10:00pm and 6:00am unless accompanied by his mother or as directed by CISP or a police officer;
(e) Present at the front door of the bail address between the curfew hours if and when requested to do so by a police officer; and
(f) Comply with the lawful directions of CISP.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of demonstrating exceptional circumstances to justify the grant of bail, and further, there is submitted to be an unacceptable risk of the applicant endangering the safety or welfare of any person, committing an offence whilst on bail and/or failing to surrender into custody in accordance with the conditions of bail.
Strength of the prosecution case
The informant has provided a compilation of CCTV footage, and a PowerPoint aid which depicts the location and movement of the offenders, and relevant features of interest as to the applicant’s identification.
The respondent submits that the prosecution case is ‘not entirely weak’ and that the cumulative evidence against the applicant makes the case stronger.
With respect to the charges relating to the stolen credit card, the respondent submits that the CCTV footage at the service station is of high quality and depicts a man with ear studs that match the applicant’s arrest photographs, similarly he is wearing a Collingwood Magpies scarf and Nike TN shoes, both of which were found in his suitcase on his arrest. In addition, the relevant card was found among co-accused Knight’s possession in the same unit occupied by the applicant on his arrest. This, the respondent submits, makes it open to a trier of fact to determine that the applicant is the one seen in the CCTV.
For the balance of the charges, the respondent submits that upon viewing the CCTV footage from multiple locations in Maribyrnong it would also be open to a trier of fact to conclude that the applicant is depicted. The respondent submits that the circumstances surrounding his arrest and the footage – including the time and close proximity to the alleged offending – give rise to a prima facie case against the applicant.
For example, the person alleged to be the applicant in the CCTV footage from the Woodruff Avenue incident was wearing a T-shirt tied around his head and a satchel bag. The respondent submits that a person in subsequent CCTV footage obtained 130 metres away in Shearwater Avenue removes their T-shirt, and when this occurs the person bears a strong resemblance to the applicant – having a similar nose and hair shape including sideburns.
While co-accused Knight nominated another person as responsible, police allege that this person is clearly not depicted in the CCTV, and that Knight was trying to protect the applicant, who is his friend.
The respondent also submits that the applicant made admissions to the charges relating to the credit cards.
Criminal history
The respondent submits that, contrary to the applicant’s submissions, his criminal history is not limited. Rather, the applicant has a prior history in both New South Wales and Victoria – including having been convicted last year in absentia in New South Wales for various offences. He is pending sentence in those matters.
The respondent submits that contrary to the applicant’s submissions otherwise, the respondent does seek to have the New South Wales convictions and outstanding warrants taken into account in determining bail.
Complainant’s views on bail
The complainant in the aggravated burglary matter was contacted and is not concerned with the applicant being granted bail.
Unacceptable risk
Endangering the safety or welfare of any person
The respondent relies on the nature of the alleged aggravated burglary, which occurred when people were present.
Committing an offence whilst on bail
The respondent submits that the alleged offending took place while the applicant was subject to a CCO, which demonstrates his unwillingness to comply with court orders. Further, the applicant has shown an inability to comply with the terms of the CCO.
The respondent notes that the applicant’s alleged offending took place while subject to outstanding warrants for his arrest in New South Wales. In relation to the applicant’s previous aggravated burglary matter in 2019 in Victoria, he was also arrested on a warrant in New South Wales for the purpose of extradition, and he was bailed by the Albury Magistrates’ Court on 22 August 2018 to appear at the Wodonga Magistrates’ Court.[10]
[10]Note the respondent stated via email that the applicant was ‘not extradited’ in response to a query from the Court. This response may mean that he was not extradited in custody, and rather he was still extradited but on bail to appear in Victoria: Service and Execution of Process Act 1992 (Cth), s 83(8) provides the option for a court to extradite someone on bail or in custody.
Failing to surrender into custody in accordance with the conditions of bail
As the applicant has matters to be finalised in both Victoria and New South Wales, the respondent submits that accordingly he poses a flight risk.
Analysis and conclusions
Exceptional circumstances
It is common ground that the exceptional circumstances test applies to this application. As such, the burden of establishing exceptional circumstances remains on the applicant. In making an assessment of whether the applicant has met the exceptional circumstances test I have had regard to the relevant provisions of the Act, as have been set out above.
The applicant relies on a combination of factors to satisfy the exceptional circumstances test, which I will deal with in turn.
With respect to the strength of the prosecution case, in my opinion the case against the applicant cannot be regarded as inherently weak. There may well be triable issues, as submitted by the applicant, but that does not mean the case is weak. It is not the role of this Court to determine the likelihood of the applicant being found guilty or acquitted of the charges, but rather to make a general assessment of the strength or otherwise of the prosecution case.
Delay in my opinion is not a factor that weighs heavily in the determination of this application. Delay and the extent of a possible sentence that might be imposed on an applicant is very often a strong factor in favour of a grant of bail, but it seems to me that is not the case here. The applicant was arrested in late August of 2022 on a charge of having committed an aggravated burglary, amongst other matters, and these matters are listed for a summary contested hearing, on 22 February 2023, a little under a month from the date of this application.
In effect, the applicant is asking for a grant of bail for a period of less than one month before his case is heard, and I must assume and act on the assumption that the matter is listed and the matter will likely proceed on that day. A sentence of imprisonment following the conviction of these allegations is quite reasonably open in my opinion, to the point where it may well exceed his time on remand.
I have given thought to the question of parity, however I consider that the situation with the co-offender Knight can be distinguished in this case.
With respect to the supervision offered by CISP, I note that there are a series of CISP reports that have been written over the past months, each time assessing the applicant as recommended for case management.
That being the case I have observed that none of the CISP reports noted the applicant’s CCO imposed by the Victorian County Court in December 2019, and the level of the applicant’s engagement with that order. And further, the CISP reports have not mentioned the fact of the outstanding New South Wales proceedings, and the unexecuted warrants for the applicant’s arrest. I note that there has been some explanation of those aspects by Ms Devlin during the course of evidence heard in the application, but I remain puzzled as to why these matters would not be mentioned in the course of a CISP report. In the circumstances, however, I do not regard this particular aspect as determinative of this particular application.
It is to be acknowledged that the applicant is supported by his mother, who said she was on leave, and confirmed that she will provide the applicant with a stable address. I have also taken into account there is a family violence order in place, and that matter is required to be raised and considered by the Court because of the provisions of the Act. I have had regard to this as required by the Act.
Having considered all the factors put to the Court in this application I am in the end not satisfied that the applicant has met the exceptional circumstances test. Furthermore, in assessing whether the applicant has satisfied this test I am obliged to take into account the surrounding circumstances, which I have done.
In my opinion there are some significant matters to be considered as surrounding circumstances here, and as above, as I have described, the applicant has a criminal history in New South Wales, but as well as an established history there are outstanding matters not yet dealt with, where the applicant has apparently been convicted and is awaiting sentences to be passed. It appears there are a series of warrants for the arrest of the applicant which have been issued in New South Wales, albeit not yet executed.
These circumstances are relevant in my opinion in the assessment of whether the applicant will be likely to comply with a bail undertaking that would be part of a grant of bail in this Court. I am ultimately left unsatisfied as to the applicant’s approach to these outstanding matters, and as to whether or not he was aware of those proceedings and the reasons why he had not appeared before the court in New South Wales.
I note also that the effect of this application is that he is seeking a grant of bail from a Victorian court when it is known that he has outstanding warrants for his arrest that presently remain unexecuted against him. Was this because he deliberately fled from the New South Wales jurisdiction to Victoria, and did he know of the New South Wales proceedings and their outcomes to a significant extent? I am left with a real sense of unease as to the explanation about this issue. However, as the circumstances are unknown to my satisfaction, I have not taken this particular aspect relating to the applicant’s knowledge, or not, into account adversely against him in the resolution of this application. That observed, it still remains the case that there are outstanding warrants for his arrest issued in New South Wales.
Unacceptable risk
Having concluded that the applicant has not satisfied the exceptional circumstances test, it is not necessary for me to make a finding regarding the unacceptable risk factor. However, in the circumstances I will indicate that had I found that he had satisfied the exceptional circumstances test I would have nevertheless concluded that the respondent has satisfied me that the unacceptable risk test has been made out.
In the circumstances I am quite satisfied that there is a risk that the applicant would either commit further offending while on bail, or that he would fail to appear at his trial when called upon. I am satisfied that these circumstances represent significant and unacceptable risks on both of those matters.
Accordingly, the application for bail is refused.
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