Re Pelle-Lopeti
[2023] VSC 776
•9 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0251
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an application for bail by DENZEL PELLE-LOPETI
BETWEEN:
| DENZEL PELLE-LOPETI | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 October 2023 |
DATE OF JUDGMENT: | 9 November 2023 |
DATE OF REASONS: | 22 December 2023 |
CASE MAY BE CITED AS: | Re Pelle-Lopeti |
MEDIUM NEUTRAL CITATION: | [2023] VSC 776 |
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CRIMINAL LAW — Application for bail — Charges relating to aggravated home invasion, recklessly cause injury, robbery — No criminal history, two prior diversions — Young applicant — Family support — Youth Justice Bail support — Exceptional circumstances satisfied — Unacceptable risk not established — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4E, 18, 18AA, 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L Dogger | Bowler & Co |
| For the Respondent | P Thorp | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Denzel Pelle‑Lopeti [‘the applicant’] is an 18 year old with no previous convictions, who has a significant substance use history and potential mental health issues, and who is remanded in adult custody for the first time.
He seeks bail in the following two matters:
Informant Detective Senior Constable Leigh Scanlon
(a) recklessly cause injury;
(b) attempted robbery;
(c) unlawful assault (two charges); and
(d) resist emergency worker.
Informant Senior Constable Daniel Carr
(a) aggravated home invasion;
(b) robbery;
(c) commit indictable offence whilst on bail (two charges); and
(d) contravene a conduct condition of bail (two charges).
Background
On 13 May 2023, the applicant was charged by Informant Scanlon in relation to offences he allegedly committed earlier that day. He was released on police bail the same day. This grant of bail included conditions, particularly relevant were non‑association conditions in regards to two co‑accused, Haithum Bahamdun and Aris Vervaet.
About two months later, on 15 July 2023, the applicant allegedly committed the offending encompassed in the Informant Carr matter.
On 22 August 2023, the applicant was charged and remanded in custody in relation to the Informant Carr matter.
On 23 August 2023 in the Heidelberg Magistrates’ Court, the applicant was refused bail in relation to the Informant Carr matter[1] and had his bail revoked in the Informant Scanlon matter.
[1]On the basis that he failed to show exceptional circumstances justifying the grant of bail, and that there was an unacceptable risk he would endanger the safety or welfare of any person and commit an offence while on bail.
The applicant’s matters are next listed on:
(a) 2 November 2023 in the Heidelberg Magistrates’ Court for mention (Informant Scanlon matter); and
(b) 14 November 2023 in the Melbourne Magistrates’ Court for committal mention (Informant Carr matter).
The alleged offending
Informant Scanlon matter
At 3:00am on 13 May 2023, TF, SF, CB and AC [‘the complainants’] were approached by three offenders on High Street in Northcote, one of which is alleged to be the applicant. The complainants were members of the public not known to the applicant.
It is alleged that one of the offenders attempted to take clothing items from the complainants, and when unsuccessful, repeatedly punched TF to the head, causing him to fall to the ground and temporarily lose consciousness. The same offender then punched AC and SF to their faces. It is alleged this offender was the applicant.
The complainants ran to the corner of High Street and Mansfield Street, followed by the applicant on a push bike. The applicant stopped in front of TF and kicked him to the face, causing him to fall backwards. He then threw punches towards AC and SF.
The complainants ran away for a second time and called emergency services. Police and ambulance officers attended shortly after, and TF was transported to St Vincent’s Hospital, where he was admitted overnight.
The complainants described the offender who attacked them to police as wearing a puffer jacket and a t‑shirt with ‘Gangsta’ written on it; having dark olive skin; a rats tail/mullet hairstyle and a moustache; and riding a pushbike.
At 3:48am, police went to the corner of High Street and Hutton Street, near to where the complainants were allegedly attacked. Police observed the applicant running from a nearby 7/11 towards a bicycle. The applicant was wearing a singlet and no shoes. A pair of shoes and a t‑shirt with the word ‘Gangsta’ written on it were lying next to the bicycle.
Police attempted to arrest the applicant, but he ran away. Following a chase by police, the applicant was arrested and transported to Mill Park Police Station, where he provided a no comment interview. He was charged and released on police bail the same day.
As a result of the alleged offending, TF suffered significant bruising to his jaw, lacerations to his face requiring stitches, and a chipped tooth.
On an unspecified date, Aris Vervaet and Haithum Bahamdun were arrested by police on suspicion of being the other two offenders present during the assault. They have since been exonerated from having been involved in the offending.
Informant Carr matter
At 7:53pm on 15 July 2023, the applicant and co‑accused, Aris Vervaet, Haithum Bahamdun, and Herran Belachew, arrived at Northland Shopping Centre in a vehicle last registered to the applicant. It is alleged the accused followed three members of the public [‘the complainants’] around the centre and outside. The applicant directed the complainants to walk to an empty carpark nearby, and then demanded that they hand over their mobile phones and items of clothing. The complainants provided the items because they were scared. The accused returned to the applicant’s car, and left the centre at 8:27pm.
At 10:50pm the same evening, an associate of the accused, Gyan Matiu, was involved in a physical altercation at a house party in Eltham North. At 11:50pm, the applicant and co‑accused Vervaet, Bahamdun, Belachew, and Antonio Mandragona arrived at the house party in the applicant’s vehicle. One of the co‑accused, Verveat, was armed with a tomahawk, and Bahamdun and Mandragona were carrying machetes. The group entered the house uninvited, demanded to know who hit their associate, and made threats. It is alleged that Vervaet appeared to walk away and then punched one of the guests to the head by surprise, causing that person to become unconscious. The co‑accused then left in the applicant’s car, five minutes after they had arrived.
The applicant was on bail for the Informant Scanlon matter at the time of the alleged offending. The bail undertaking included the condition that he not associate with Aris Vervaet or Haithum Bahamdun.
On 22 August 2023, police executed search warrants at the homes of the group of alleged offenders and arrested them. During interviews, the accused each stated no comment to the substantive allegations, however the applicant admitted to being the driver of the car at the relevant times after being required to nominate a driver pursuant to section 60 of the Road Safety Act 1986. All accused were remanded in custody.
To establish the applicant’s identity in relation to the alleged offending, the prosecution relies upon CCTV from the Northland Shopping Centre and the Eltham North house; the vehicle used in the commission of the offences being last registered to the applicant; the applicant admitting that he was driving the vehicle at the relevant times; the applicant’s mobile phone location data; and clothing located during the execution of a search warrant at the applicant’s address on 22 August 2023, which reportedly matches the clothing he is alleged to have been wearing at the time of the alleged offending.
The applicable legislation
Guiding principles
In determining an application for bail, the court is required to have regard to the guiding principles as set out in section 1B(1) of the Bail Act 1977 [‘the Act’].[2]
[2]The Act s 1B(2).
Step 1 — exceptional circumstances test
As the applicant is charged with Schedule 1 offending within the meaning of the Act,[3] bail must be refused unless he can satisfy the court that exceptional circumstances exist that justify the grant of bail.[4] In considering whether exceptional circumstances exist, the court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in section 3AAA(1) of the Act.[5]
[3]Namely, one charge against s 77B of the Crimes Act 1958 (aggravated home invasion); see the Act, sch 1, item 4.
[4]The Act ss 4AA(1), 4A(1)–(2).
[5]Ibid s 4A(3).
Step 2 — unacceptable risk test
If satisfied that exceptional circumstances exist, the court must apply the unacceptable risk test.[6] Bail must be refused if the respondent satisfies the court that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[7] In considering whether any relevant risk is unacceptable, the court must again have regard to 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.[8]
[6]Ibid ss 4A(4), 4D(1)(a).
[7]Ibid s 4E(1)–(2).
[8]Ibid s 4E(3).
Determination in relation to an 18 year old
The applicant submits that he is a child for the purposes of the application, and accordingly submits that section 3B of the Act and section 346(6) of the Children, Youth and Families Act 2005 apply to the determination of bail.
The Children, Youth and Families Act 2005 defines a child as ‘a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years’, not including any person who is of or above the age of 19 years when the proceeding for the offence is commenced in court. The Act uses the same definition.
The respondent notes, correctly, that the applicant was 18 years old at the time of the alleged offending in both matters. Therefore, he is not a child for the purposes of the bail application, and the legislative provisions concerning children referred to by the applicant do not apply.
However, that is not to say that the applicant’s relative youth, being only 18 years old, is not a relevant consideration for the court. In Re Application for bail by Zreika,[9] which also involved an 18 year old applicant, this court noted:
Relevant to the circumstances of the present application, this Court has previously held that the youth of an applicant for bail (where not a child) is of some weight in determining whether exceptional circumstances have been made out, in combination with other factors, including weaknesses in the prosecution case, delay, and where the applicant is vulnerable in custody.[10]
[9][2020] VSC 648 (Coghlan J).
[10]See Re Vucak [2009] VSC 167, [22], [29] (Kaye J); Re Scott [2011] VSC 187, [20], [26] (Kaye J); Re Scott [2011] VSC 674, [15] (T Forrest J); Andreevski v The Queen [2009] VSC 115, [10] (Coghlan J); Re Gloury‑Hyde [2018] VSC 393, [34]–[35] (Priest JA). Cf Re Ghanim [2019] VSC 358, [37] (Lasry J); Re Sheen [2015] VSC 486, [20] (Priest JA).
The applicant’s personal circumstances
Family
The applicant is 18 years old. He usually resides in Thornbury with his mother and brother.
The applicant’s parents separated when he was five years old, following family violence perpetuated by his father against his mother. The applicant has some contact with his father, who resides in Thomastown. Both the applicant’s parents attended the hearing of this application.
Education, employment, and interests
The applicant attended Northcote Secondary College until year eight, and then attended St Joseph’s Flexible Learning Centre for three years. He reports that he struggled with schoolwork, and that his attendance was up and down.
He has previously held employment in the demolition and fencing industries.
He enjoys spending time at his local gymnasium, and attended up to six times per week prior to his remand in custody.
Substance use and mental health
The applicant reports a significant substance use history, including the use of alcohol, benzodiazepines, hallucinogens, amphetamines, cannabis and cocaine. In November 2022, he was hospitalised for one week due to experiencing visual hallucinations. He reports that doctors considered diagnosing him with depression.
Further, in May 2023, the applicant was hospitalised following a drug overdose. The applicant states that his substance use decreased following this admission.
The applicant reports no recent substance use prior to his remand in custody, and no current mental health concerns.
Criminal history
The applicant has no prior criminal history, however, as noted later, he has been the subject of two diversion outcomes in the Children’s Court when younger.
The applicant’s contentions
Family support, stable accommodation, employment
If granted bail, the applicant proposes to return to live at his family home in Thornbury.
The applicant submits that his mother, Jenny Pelle, is a strong source of support for him. It is submitted that this is an opinion held by Youth Justice, who report that over their multiple conversations with Ms Pelle, that she presents as a prosocial and concerned mother.
Ms Pelle gave evidence at the hearing. She confirmed she works full time as a primary school teacher and could provide stable accommodation at the family home for the applicant. She said that she was able to provide a good level of supervision over the applicant and was willing to give an undertaking that she would report any breaches of bail she became aware of to the authorities. She also indicated a willingness to provide a $1,500 surety, a significant sum of money for the family. When pressed in cross examination, it emerged that Ms Pelle had not been fully aware of the applicant’s bail conditions in the past, or able to ensure that he did not associate with co‑accused. Ms Pelle did not appear fully informed of the allegations against her son or knowledgeable about the fact that he was allegedly out in the early hours of the morning on the occasions alleged.
Youth Justice propose that, should bail be granted, the applicant will work alongside his brother as a labourer two to five days a week. The applicant has provided a supplementary affidavit in support by Stella Zygouras, dated 26 October 2023, confirming that the applicant is able to return to work as a labourer at Alkiz Pty Ltd. This company is able to offer the applicant transport to and from work.
Andrew Zygouras also gave brief evidence, as the main employee of Alkiz Pty Ltd and brother of Stella Zygouras. He expressed his willingness to have the applicant work in the fencing company, between four to six days a week, where he would be supervised. In cross examination, it became evident that Mr Zygouras was not aware of the allegations against the applicant. Mr Zygouras accepted that the applicant would be potentially working on sites where he would have access to people’s valuables.
Special vulnerability and availability of treatment or bail support services
The applicant has multiple vulnerabilities, namely:
(a) he is a young person of 18 years of age, now held in adult custody for the first time;
(b) he has a history of significant substance use and potential mental health issues, for which he has been hospitalised twice within the last 12 months; and
(c) he has not received any treatment for his substance use and mental health issues, beyond short‑term hospital care.
As noted above, the applicant also relies upon the involvement of Youth Justice. A Youth Justice report dated 19 September 2023 has been received, written by Bridget McGeoch and Kathy Taylor. An updated Youth Justice report dated 26 October 2023 has also been received.
Youth Justice assessed the applicant as suitable for their supervised bail program. The applicant is reported to have expressed willingness to engage with Youth Justice and any support services on bail. It is further noted that, if granted bail, this will be the applicant’s first involvement with Youth Justice.
Accordingly, Youth Justice propose the following supports for the applicant on supervised bail:
(a) Supervision: The applicant will be required to attend at least weekly supervision appointments with Youth Justice. Youth Justice will conduct an ongoing assessment of the applicant’s risk and support needs, including monitoring his substance use and mental health, and will make further referrals and/or increase reporting requirements if required.
(b) Assessment and treatment with Youth Support and Advocacy Service [‘YSAS’]: Youth Justice have referred the applicant to YSAS for assessment and treatment in relation to his substance use and mental health.
(c) Employment with his brother: Youth Justice refers to the applicant having available employment working as a labourer, alongside his brother. Youth Justice proposes that the applicant will attend work for five days per week prior to the commencement of the Hand Brake Turn program, and two days per week after the program commences.
In the earlier September report, Youth Justice also mentioned the following supports:
(a) Work skills training via the Hand Brake Turn program: Youth Justice intend to refer the applicant to Hand Brake Turn, a five week automotive work skills training program for young people. The program will consists of technical skills practice and life skill development in the automotive industry, three days per week. The next course commences on 13 November 2023.
(b) Pre‑apprenticeship in plumbing: Youth Justice notes that the applicant has discussed an interest in plumbing. Youth Justice intends to explore enrolling the applicant in a pre‑apprenticeship plumbing course in early 2024.
Delay and likely sentence
The applicant has been remanded in custody for 65 days as at the date of the bail hearing.
The applicant highlights that he has no criminal history, this is his first time in adult custody, and this is the longest period he has been held on remand.
Should he be convicted of the alleged offending, it is submitted the applicant is unlikely to receive a sentence of immediate detention.
Unacceptable risk
The applicant anticipated that the respondent will allege he is an unacceptable risk of committing an offence whilst on bail. In relation to this, the applicant highlights that he will have access to treatment for substance dependence, should bail be granted.
It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of the following conditions of bail:
(a) the applicant must reside at [an address], Thornbury 3071;
(b) the applicant must not leave his residence between 8:00pm and 6:00am, unless in the company of a parent;
(c) the applicant must present at the front door of [the] residence during curfew hours upon request of any members of Victoria Police;
(d) the applicant must obey all lawful directions of [the] Youth Justice Intensive Bail Support Program; and
(e) the applicant must not to contact the witnesses from prosecution other than the Informant.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not established exceptional circumstances justifying the grant of bail, and is an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail.
Nature and seriousness of the alleged offending
The respondent describes the alleged offending across both matters as serious and violent.
The respondent highlights that the complainant in the Informant Scanlon matter suffered injuries requiring overnight treatment in hospital.
The respondent further notes that the alleged aggravated home invasion appears to be an act of retribution for an earlier incident involving the applicant’s associate.
Criminal history and bail compliance history
The respondent acknowledges that the applicant has no prior convictions. However, the respondent notes that the applicant has previously completed two diversion programs, on 8 September 2021 and 2 March 2023, in relation to a range of offences, including dishonesty offences, committing offences whilst on bail, resisting and assaulting police, possessing drugs of dependence, possessing a weapon, robbery, and affray.
The respondent further notes that the applicant is charged with two charges of committing an indictable offence whilst on bail and one charge of contravening a conduct condition of bail. So the respondent now points to, in this application, a series of four allegations of serious wrongdoing by the age of 18.
Outstanding matters
The respondent submits that the prosecution intends to charge the applicant by way of summons in relation to a further matter, namely a charge of affray. The respondent states that the alleged offending occurred on 17 July 2023 in Coolaroo, and that it involved co‑accused brandishing machetes and firearms. The respondent does not particularise the alleged actions of the applicant during this incident.[11]
[11]As no charges have been laid this allegation has not been taken into account for the purposes of this application.
Family support and stable accommodation
The respondent concedes that the applicant will have the support of his family, if released on bail. Nonetheless, the respondent submits that the applicant residing with his brother will pose a risk, on the basis that:
(a) the applicant’s brother was previously charged alongside the applicant for an alleged theft of a motor vehicle in 2021 (for which the applicant received diversion); and
(b) according to police investigations, the applicant has previously used substances within the family home with his brother.
Availability of treatment or bail support services
The respondent expresses concern that the proposed Youth Justice supervised bail program does not involve a program to address knife related crime. The respondent highlights that the applicant is alleged to have been involved in an aggravated home invasion during which his co‑accused used weapons, and that two machetes were located hidden in the applicant’s room during the execution of a search warrant on 22 August 2023.
Complainants’ views on bail
The respondent submits that the complainants in the Informant Carr matter have been consulted in relation to the possibility of the applicant and co‑accused being granted bail, and that they are all opposed to bail.
Delay and likely sentence
The respondent notes that aggravated home invasion is a category 1 offence, carrying a mandatory minimum non‑parole period of three years’ imprisonment.
The respondent does not accept the applicant’s submission that he is unlikely to receive a sentence of immediate detention if convicted. The respondent submits that the applicant is likely to receive a substantial sentence of imprisonment.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the alleged offending is serious, reiterating that it involves the use of violence.
The respondent further submits that the applicant has access to firearms, and that should he be granted bail, he will be a significant danger to the community. In making this submission, the respondent relies upon:
(a) a video, found within the ‘Snapchat’ application on the applicant’s phone, which reportedly depicts co‑accused Herran Belachew removing a shotgun from co‑accused Aris Vervaet’s bed. The video is date and location stamped 28 July 2023 in Coburg; and
(b) a pending charge of affray against the applicant. The respondent submits that the alleged offending involved co‑accused and that machetes and firearms were brandished; however it is not specified whether the applicant is alleged to have possessed a firearm.
The respondent acknowledges that despite multiple search warrants, no firearms have been located at the applicant’s or the co‑accused’s homes.
Committing an offence whilst on bail
The respondent highlights that the applicant is alleged to have committed the offending in the Informant Carr matter while subject to bail in the Informant Scanlon matter.
The respondent notes that while the applicant has no prior convictions, he has previously completed a diversion program for prior offending which included committing offences whilst on bail.
The respondent submits that the supports available to the applicant via his family and Youth Justice are insufficient to mitigate his risk of further offending on bail.
Analysis and conclusions
Introduction
As discussed 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 shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated to an acceptable level by the imposition of any bail conditions. There is no dispute between the parties that these two tests apply to the application.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant’s surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices. There is also the question of the applicant’s youth, which needs to be taken into account.
As he is entitled to do, the applicant relies on a combination of circumstances in order to satisfy the exceptional circumstances test.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
This application is finely balanced. The exceptional circumstances test, although not impossible to reach, is a high threshold.[12] The applicant must show there are circumstances that are “right out of the ordinary” to justify his release on bail.[13]
[12]Re Villani [2021] VSC 638, [34] (Tinney J).
[13]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).
At the heart of the applicant’s case is that he is a young man, with sufficient supports available, and some notable special vulnerabilities relating to being placed in adult custody for the first time and having a history of drug use and apparent mental health struggles.
I accept that the applicant is a young man, with a supportive family. He has clearly faced some troubles in life, apparently including with his mental health, which does not appear to have been adequately addressed. He has also been hospitalised for a drug overdose in May this year. Being held in a mainstream adult unit is far from ideal for a young man who has not been held in custody before.
Of significance to this application is that Youth Justice is supportive of the applicant. A series of supportive appointments have been put in place by Youth Justice. It also appears that, if released on bail, the applicant will have some structure to adhere to, including labouring work available through the Zygouras family.
I have also taken into account the matter of parity, noting that two of the four co‑accused in the Informant Carr matter have been granted bail, whilst the other two have been remanded. In this application, parity of treatment with other offenders who have been granted bail in respect of one set of alleged offences has only limited application.
Delay is of course a relevant factor in this application, with the proceedings only in their relatively early stages. Given that it is likely that a committal hearing will be held, the applicant might face up to 12 months, if not more, before his trial is resolved, if it proceeds to a contested matter. On the other hand, the aspect of delay is tempered somewhat given the mandatory three year minimum sentence that could be imposed on the charge of aggravated home invasion. These particular factors must be weighed against the applicant being in adult custody for the first time.
Importantly, the nature and seriousness of the allegations is of significant concern. The alleged offending is violent and appears to be opportunistic and senseless in respect of the offending alleged to have been committed in public in the early hours of the morning. That offending appears to have included vicious attacks on unassuming members of the public going about their business, and the use of knives and machetes, and potential access to firearms, is of the utmost concern. Of course, there may be triable issues raised by the applicant in relation to the prosecution cases. Whilst there are matters contested on grounds relating to complicity and identity, the prosecution case in relation to the robbery at the shopping centre appears relatively strong, given CCTV depicts the applicant and the vehicle used was registered in his name. Overall, at this stage, it does not seem that the prosecution cases are inherently weak or foredoomed to fail, though it must also be said that there may be triable issues. At this early stage, little more can be said, but simply to observe that it is not the role of this court to form final conclusions about these matters.
I am concerned about the level of supervision the applicant’s mother can provide. Whilst she has said that she will be at home at night with the applicant and his brother, the applicant has allegedly left his home in the early hours of the morning a number of times without his mother’s knowledge. Whilst the applicant’s family are undoubtedly loving and supportive, in my opinion there appears to exist an element of unrealistic understanding as to the seriousness of the allegations and the trajectory their son appears to be on.
This family needs to take a long, hard look at itself and seek assistance with how they are going to deal with their children. These matters are of real concern, and the applicant, it must be made clear, appears to me at the age of 18 to be at a fork in the road. His life is likely to go in one direction or the other. One direction leads him to a law‑abiding life. The other direction leads him to a life of imprisonment repetitively.
I am also concerned about the applicant’s ability to be trusted on work sites where he is likely to have access to residential homes, or at the least, valuable tools and equipment. Mr Zygouras himself was not aware of the substance of the allegations against the applicant.
The circumstances regarding the evidence of the applicant’s mother and prospective employer presents an opportunity to remark that when witnesses provide supportive evidence on behalf of people accused of criminal activity, the weight attached to the evidence reduces significantly if these people are not apprised to an appropriate degree as to the nature of the matters before the court and relevant circumstances pertaining to the offender.
Whilst the applicant does not have a criminal history, which is in his favour, there have been two diversions, one of which included committing offences whilst on bail. This is also a troubling circumstance.
The above all said, taking all of those things into account, in particular the applicant’s age, and the support offered by Youth Justice, I do consider the exceptional circumstances test has been met in this case. As I remarked, my decision has been finely balanced, but the applicant’s young age has been a significant factor. However, he must recognise that with each passing day as he gets older, his youth is a card that will not be able to be played forever.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
With respect to the risk posed by the applicant, I have considered the submissions of the parties and all the relevant factors. I have considered the respondent’s submission that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, and committing further offences while on bail.
The applicant clearly poses some risk in the categories raised by the respondent. This is particularly so given the frequency and brazen nature of the serious allegations of violence with the use of weapons levelled against him and the other co‑accused. However, a grant of bail almost inevitably involves a degree of risk. The matter for consideration is whether risk can be ameliorated by the imposition of conditions, to a level that becomes acceptable in all the circumstances.
In relation to the risk the applicant allegedly poses to members of the public, this risk is clearly apparent. The applicant may have access to weapons, given machetes have been found during police searches of the home. I do however note that, as submitted by the applicant, it is not alleged that the applicant possessed weapons during the alleged offending, or that he was the instigator of or primary offender with respect to the alleged aggravated home invasion. I also accept that whilst the respondent has raised the applicant’s potential access to firearms, the applicant denies this, and no firearms have been located.
Despite the supervision afforded by his mother, and Youth Justice, there will always be a risk the applicant decides to abscond from his home at night and mix with the same co‑accused involved in a number of the alleged incidents, who appear to be his friends. There is some risk that bail conditions mandating non‑association with these individuals would be unlikely to have a strong deterrent effect on the applicant, given he was on bail in respect to the Informant Scanlon matter at the time he is alleged to have committed the aggravated home invasion. One condition of this bail was that the applicant was not to associate with Vervaet and Bahamdun, and police identified seven occasions in which the applicant has breached this condition. I have taken this into account. I place significant weight on the undertaking provided by the applicant’s mother to inform the authorities of any breaches of the applicant’s bail conditions. It needs to be understood that this undertaking is taken very seriously by the court. I have also placed significant weight on the preparedness of Youth Justice to supervise the applicant, as set out in the report provided.
I have also taken into account the special position young people have in the criminal justice system and the need to place emphasis on the principle of rehabilitation, along with the fact that the applicant is currently in an adult custodial setting.
As to the applicant’s risk of reoffending, for similar reasons, this is a clear and present concern. However, I consider that the factors I have outlined above are capable of reducing to an acceptable level the risk that the applicant will commit further offences. In all the circumstances I am prepared to accept that the degree of risk the applicant poses can be satisfactorily managed with the imposition of strict bail conditions, and that it is therefore not an unacceptable risk pursuant to the statutory test.
In all the circumstances I am not satisfied the respondent has established the applicant represents a risk that is unacceptable. In my opinion, along with the factors discussed above, a set of stringent conditions can reduce the risk to a level that is acceptable.
Conclusion
Accordingly, bail will be granted in the following terms, namely that the applicant:
(a) attend the Melbourne Magistrates’ Court on 14 November 2023 and then surrender himself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody;
(b) reside at [an address] in Thornbury, Victoria, and not change that address without leave of the court;
(c) remain at those premises between the hours of 8:00pm and 6:00am each day for the duration of bail;
(d) present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) notify the informant at least fourteen days in advance of any proposal to change his place of residence;
(f) not possess or use more than one mobile phone;
(g) produce any mobile phone that he possesses or uses for inspection upon the reasonable request of the informant or his or her nominee, and grant access to the full contents of the mobile phone;
(h) report Monday and Friday, or the nearest day thereafter if it falls on a public holiday, to the Officer in Charge of the Police Station at Northcote, or his or her nominee, between the hours of 6:00am to 8:00pm;
(i) report to Bridget McGeoch (or her nominee) at Youth Justice within two working days after this order comes into force;
(j) comply with all lawful directions of the Youth Justice Bail Service Program;
(k) not contact, directly or indirectly, or by any means whatsoever, the co‑accused, being Aris Vervaet, Haithum Bahamdun, Herran Belachew, and Antonio Mandragona, for the duration of the bail period;
(l) not contact any witnesses for the prosecution, with the exception of the informant;
(m) not leave the state of Victoria;
(n) not attend any international point of departure;
(o) reappear before this court for judicial monitoring, to review compliance with the bail orders, at 9:30am on 7 December 2023, and any other further dates that the court appoints during the course of this order.
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