Re Mohamed
[2019] VSC 83
•20 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0008
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Joseph MOHAMED | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 and 20 February 2019 |
DATE OF JUDGMENT: | 20 February 2019 |
CASE MAY BE CITED AS: | Re Mohamed |
MEDIUM NEUTRAL CITATION: | [2019] VSC 83 |
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CRIMINAL LAW – Bail application – Applicant required to show compelling reason – Charge of armed robbery – Youth – No criminal history – Family support – Employment – Study – Delay – Bail granted with conditions – Applicant allowed to return to Western Australia – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Lawrence | Stary Norton Halphen |
| For the Respondent | Ms G. Coghlan | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 2 January 2019, Joseph Mohamed (‘the applicant’) was arrested and charged with armed robbery in relation to events alleged to have occurred the previous evening.
The applicant has been in custody since the day of his arrest. He has no outstanding matters and was not subject to any court orders at the time of the alleged offending. On 4 January 2019, the applicant was refused bail at the Melbourne Magistrates’ Court. This matter is next listed for committal mention on 28 March 2019 at the Melbourne Magistrates’ Court.
There is one co-accused, Mustafa Mohamed (‘the co-accused’), who was arrested and charged on 1 January 2019 with offences of armed robbery and making a threat to kill. He was granted bail at the Melbourne Magistrates’ Court on 4 January 2019. While the co-accused has no criminal history in Victoria, I note that following the grant of bail, it was found that he has two prior matters from Western Australia relating to the possession of cannabis and common assault, both of which resulted in fines.
The alleged offending
On 1 January 2019, the complainant placed an advertisement on Facebook Marketplace, seeking to sell a new Apple iPhone XS. The complainant was contacted by a Facebook user named ‘Reece Afowji’, and they reached an agreement for sale of the iPhone for $1,800. The Facebook user informed the complainant that her boyfriend would attend the complainant’s residence in Hoppers Crossing to pick up the iPhone.
At approximately 8.40pm that evening, the complainant exited his residence to meet the purchaser of the iPhone in his driveway. He was then approached by two men, allegedly being the applicant and the co-accused.
The prosecution case is that the co-accused began conversing with the complainant and inspecting the iPhone, while the applicant was talking on his mobile phone. The complainant became uncomfortable and retrieved his iPhone from the co‑accused. It is alleged the applicant then unsuccessfully attempted to grab the iPhone. The co-accused allegedly produced a knife and held it towards the complainant’s throat, stating, ‘give me the phone or I’ll kill you’. The complainant surrendered the iPhone.
Following the incident, the applicant and co-accused allegedly ran from the complainant’s address towards a nearby Caltex service station. Shortly after, a silver Ford Focus was observed driving at a high speed out of the service station.
At approximately 10.00pm, a member of the public reported to police that four males were fighting near a car park at the Cherry Lake Reserve in Altona. Police attended and spoke to the men before observing them enter a silver vehicle matching the description of that witnessed driving out of the service station. A search of the vehicle located, inter alia, the stolen iPhone, a meat cleaver, and a knife matching the description of that used in the robbery.
All four males were arrested and conveyed to Werribee Police Station for interview. During a record of interview, the applicant advised police that he had been in the vehicle with the co-accused for the duration of the evening and did not know anything about an armed robbery. The applicant was charged and remanded in custody.
In a record of interview, one of the men, Idris Ali, advised police that earlier in the day, the applicant and co-accused told him to drive to an address in Hoppers Crossing so they could purchase a phone. Mr Ali further stated that at approximately 8.50pm that evening, the four men had attended the address and the applicant and the co-accused got out of the vehicle, before returning shortly with an iPhone box.
On 2 January 2019, the complainant attended Altona North Police Station and identified the applicant on a photo board. The victim also identified the co-accused on a photo board, but stated that he was only ‘fifty per cent sure’ it was the other person involved.
The applicable legislation
The applicant is charged with the Schedule 2 offence of armed robbery.[1] Therefore, pursuant to s 4C(1A) of the Bail Act 1977 (‘the Act’), the Court must refuse bail unless satisfied a compelling reason exists that justifies the grant of bail.
[1]Bail Act 1977 (Vic) sch 2 item 22(a).
The applicant bears the burden of satisfying the Court that a compelling reason exists pursuant to s 4C(2) of the Act.
Pursuant to s 4C(3) in considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’. Section 3AAA of the Act provides this means the Court must take into account all the circumstances that are relevant to the matter including, but not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied a compelling reason exists that justifies the grant of bail, ss 4C(4) and s 4D(1)(b) of the Act provide the Court must apply the ‘unacceptable risk test’.
Pursuant to s 4E(1) of the Act, the Court must refuse bail if satisfied that
(a)there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) that risk is an unacceptable risk.
In applying this test, s 4E(3) of the Act provides 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 the risk so that it is not unacceptable.
Pursuant to s 5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is a Family Violence Intervention Order, or any other family violence safety notice or domestic violence order in force against the applicant. I note there are no such orders in force against the applicant in this matter.
Finally, when interpreting the Act, the Court is required by s 1B of the Act to take into account, inter alia, that:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty;
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Meaning of compelling reason
In Re Ceylan,[2] Beach JA considered the inquiry required under s 4(4) of Authorised Version No. 138 of the Act as to whether an accused shows compelling reason why their detention in custody is not justified. His Honour held:
For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[3]
[2][2018] VSC 361.
[3]Cf s 37(c) of the Interpretation of Legislation Act 1984.
His Honour further determined:
compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary … to show a reason which is irresistible or exceptional … in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.
The statutory provisions which applied in Re Ceylan have since been amended. Beach JA considered the current provisions Re Alsulayhim[4] and held:
The test in Ceylan was whether there was compelling reason why an applicant’s detention in custody was not justified. Section 4C requires a compelling reason ‘that justifies the grant of bail’. While the statutory language is slightly different, the expression ‘compelling reason’ remains. Having considered s 4C in context, there is no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason’. Further, the presence of the indefinite article in s 4C before the words ‘compelling reason’ does not mandate any different approach, to the issue of whether bail should be granted, from that described in Ceylan.[5]
[4][2018] VSC 570.
[5]Ibid [28].
The applicant
The applicant is 20 years old. Prior to being on remand, he was residing with his mother and siblings in Maddington, Western Australia. At the time of the alleged offending, the applicant was visiting Melbourne for a basketball tournament as part of a Somali Week festival.
In early 2018, the applicant engaged in a pre‑apprenticeship in diesel mechanics and has partially completed the apprenticeship component. He also has a part time job at Kmart and has saved money in the hope of purchasing a car.
The applicant submits he has no issues with drug and alcohol use.
The applicant’s contentions
The applicant contends the following matters are established by evidence and in combination, demonstrate a compelling reason that justifies the grant of bail.
Age and lack of criminal history
The applicant is a young person, being 20 years old. He has no criminal history in Victoria or interstate and is currently in custody for the first time. Aside from the present charge, there are no outstanding matters involving the applicant.
Accommodation, employment and study
It is submitted that the applicant is supported by his family and is able to reside with his aunt, Faiza Ibrahim, and her children in Tarneit in Victoria. Ms Ibrahim gave evidence before me, confirming that the applicant could reside with her.
However, the applicant submits it would be preferable that he return to his family home in Western Australia, allowing him to resume employment and continue his apprenticeship. At the hearing, the applicant gave viva voce evidence that if granted bail, that was his intention and he would be able to re-enrol in his apprenticeship until March 2018. Counsel for the applicant submits this is preferred to him living with his aunt in Victoria.
Nature of the alleged offending
The applicant acknowledges that armed robbery is a serious charge, but submits the alleged offending is not a serious example of the offence. In this regard, the applicant notes the absence of firearms, the brief duration of the incident and the absence of physical injury caused. The applicant also submits that his alleged role in the incident was lesser than that of his co-accused.
Strength of the prosecution case
Additionally, the applicant submits he has an ‘arguable case’ that he is not guilty of the present charge. It is submitted that the prosecution case relies on complicity and that faces challenges establishing the applicant had knowledge of the knife or of a pre‑existing plan to commit an armed robbery, as opposed to a robbery.
Delay and likely sentence
It is submitted that if this matter remains contested, the applicant faces up to 18 months in custody before it is finalised. The applicant submits that if he is found guilty of this charge, it is unlikely he will receive a custodial sentence. Further, it is submitted that if he does receive a custodial sentence, it would be of a lesser duration than the time he will spend on remand if refused bail.
Unacceptable risk
The applicant submits that given he has no criminal history and the nature of his alleged involvement this incident, he does not pose a risk to the safety or welfare of any person. It is also submitted that any risk of the applicant failing to surrender into custody can be adequately addressed by reporting conditions, the surrender of any passport or travel documents, and by the applicant living at home in Western Australia.
The respondent’s contentions
The respondent opposes bail, submitting the applicant has failed to show a compelling reason that justifies the grant of bail. The respondent also submits the applicant is an unacceptable risk of endangering the safety and welfare of any person and failing to surrender into custody in accordance with bail conditions.
The informant, Senior Constable Anna Steele, gave viva voce evidence expressing concerns as to the applicant’s proposed address in Tarneit. Senior Constable Steele gave evidence that two individuals living at that address have pending court matters, involving charges of burglary, armed robbery and a drug related offence. There were no concerns expressed as to the character of the applicant’s aunt, Ms Faiza.
Further, the respondent submits that if the applicant was granted bail and allowed to return to Western Australia, there is an unacceptable risk that he would fail to answer bail when called upon in Victoria.
The respondent also notes that the complainant has expressed fears for his safety due to the fact that his address is known to the applicant and co-accused. This fear is exacerbated by the fact that the complainant’s elderly parents also reside there.
Finally, the respondent concedes the applicant has cooperated with police, however, submits he attempted to minimise his role in the alleged offending, when he was in fact an active participant.
Analysis
Considering the material before me and the relevant surrounding circumstances, I have determined that the applicant has established a compelling reason justifying the grant of bail, through a combination of factors.
On the limited evidence available for my consideration in respect to the present charge, I am unable to make conclusive findings as to the strength of the prosecution case. I acknowledge that the complainant gave a strong identification of the applicant from a photo board and the relevance of Mr Ali’s statement and CCTV footage. However, there appears to be little evidence demonstrating the applicant’s knowledge of the knife, nor a plan that involved its possible use or issuing a threat to kill. The complainant’s description of the applicant’s clothing also differs from what he was wearing when arrested. Ultimately, I cannot describe the prosecution case as to the applicant’s presence at the scene of events as weak. It remains to be seen whether the applicant’s knowledge of his participation in an armed robbery can be proven to a sufficient standard.
In finding compelling reason has been proven, I have noted the applicant’s youth and lack of prior convictions or dealings with the criminal justice system. It is also significant that the applicant has been engaged in study and employment, and has given evidence that this would continue if bailed to Western Australia.
Further, the delay that would be experienced if the applicant is refused bail is highly undesirable. It is accepted by parties that if contested, this matter may not finalise until mid-2020. This would result in the applicant being on remand for a significant period of time, while also remaining isolated from his family in Western Australia.
In terms of unacceptable risk, it appears the respondent’s primary concern is the risk of the applicant failing to surrender to the court in Victoria when required, if allowed to return to Western Australia. In this regard, I have considered the option of the applicant residing with his aunt, Ms Ibrahim, and her five children, in Tarneit. However, I am concerned that as demonstrated in the viva voce evidence of Ms Ibrahim, she appears unaware that two of her sons have ongoing criminal matters. These two men also live at her premises. Moreover, Ms Ibrahim gave evidence that she runs a childcare business from the address to which the applicant would be bailed. In all of these circumstances, I am left unsatisfied that this address is suitable for the applicant to live at and to be supervised to a practical degree.
Accordingly, I have determined that the applicant should be allowed to return to Western Australia. Given all of the circumstances and evidence, I have concluded that this is the most appropriate solution as it would allow the applicant to resume living with his immediate family and continue his study and employment. I was impressed by the evidence of the applicant’s mother, Kaltun Evren Kucha, as to the assistance she would provide to ensure the applicant returned to Melbourne when required for this matter. In my opinion, appropriate conditions can be imposed to ameliorate the risk of the applicant returning interstate to an acceptable level.
Therefore, the applicant will be granted bail on several conditions, including that he:
(a) reside at his specified home address in Western Australia, and not change that address without leave of the Court;
(b) not leave the State of Western Australia unless for the purpose of attending court in Victoria and in the company of Khadar Mohamed and/or Kaltun Mohamed;
(c) remain at the specified premises between the hours of 9.00pm and 6.00am each day for the duration of bail, unless in Victoria for the purposes of attending court;
(d) from 25 February 2019, report Monday, Wednesday and Friday to the Gosnells Police Station in Western Australia;
(e) while in Victoria for the purpose of attending court, remain in the company of Khadar Mohamed and/or Kaltun Mohamed; and
(f) not contact, directly or indirectly, the co-accused.
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