Re Rizakis
[2021] VSC 550
•26 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0212
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by NICK RIZAKIS |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 August 2021 |
DATE OF JUDGMENT: | 26 August 2021 |
DATE OF REVISED REASONS: | 3 September 2021 |
CASE MAY BE CITED AS: | Re Rizakis |
MEDIUM NEUTRAL CITATION: | [2021] VSC 550 |
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CRIMINAL LAW — Application for bail — Charges of intimidating a person involved in a criminal proceeding, harassing a witness, unlawful assault and contravening a conduct condition of bail — Seriousness of the offending — Limited prior criminal history — Impact of the COVID-19 pandemic on people in custody — Likely that pre-sentence detention would exceed any custodial sentence imposed — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Shaun Ginsbourg | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Ms Ruth Champion | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Nick Rizakis (the ‘applicant’). On 11 August 2021, the applicant was charged by Detective Senior Constable Michael Beilken and remanded in custody on the following offences (the ‘Beilken matter’):
(a) use intimidation towards a person involved in a criminal proceeding;[1]
[1]Contrary to s 257 of the Crimes Act 1958 (Vic).
(b) harassing a witness;[2]
(c) unlawful assault;[3] and
(d) contravening a conduct condition of bail.[4]
[2]Contrary to s 52A of the Summary Offences Act 1966 (Vic).
[3]Contrary to s 23 of the Summary Offences Act 1966 (Vic).
[4]Contrary to s 30A of the Bail Act 1977 (Vic).
The applicant was refused bail on the same date at the Melbourne Magistrates’ Court on the basis that he failed to demonstrate exceptional circumstances, and there was an unacceptable risk that he would commit an offence while on bail, endanger the safety or welfare of any person or interfere with a witness or otherwise obstruct the course of justice in any matter. Given it was held that the applicant had failed to establish exceptional circumstances justifying a grant of bail, the finding in relation to unacceptable risk would appear to be unnecessary. By notice filed on 17 August 2021, the applicant now seeks a grant of bail in this Court.
The Beilken matter is next listed on 3 November 2021 at the Melbourne Magistrates’ Court for committal mention. The prosecution have indicated an intention to withdraw two of the charges, proceeding only with the charges of harassing a witness and contravening a conduct condition of bail, meaning that the matter will remitted to the summary jurisdiction. This will significantly reduce the likely delay in the matter finalising and effect the likely sentence that will be imposed should the applicant be found guilty.
Procedural history
At the time of the alleged offending in the Beilken matter, the applicant was on bail for four matters where the informants are Mills, McCann and Douglas. Three of those matters relate to alleged family violence offending perpetrated against the applicant’s ex-partner. The fourth matter relates to dishonesty offending.
The informant in the first outstanding matter is Senior Constable Varri Mills (the ‘first Mills matter’). The charges arise from an alleged assault against the applicant’s ex-partner on 1 July 2018. The applicant was charged and bailed on the same date. Following this incident, the applicant’s ex-partner and their two young daughters moved out of the family home, and Family Violence Intervention Orders (‘FVIO’) were made against the applicant to protect them.
The informant in the second matter is Sergeant David McCann (the ‘McCann matter’). The applicant was charged on 3 April 2019 with stalking his ex-partner between July 2018 and March 2019, persistently contravening the FVIO, committing an indictable offence whilst on bail and attempting to pervert the course of justice. The applicant was granted conditional bail on 3 April 2019 at the Melbourne Magistrates’ Court. In summary, the allegations are the applicant accessed his ex-partner’s email account and read her private emails (some of which contained her new address) on many occasions; remained nearby a premises where his ex-partner was present; directed his cousin and his friend to contact her on his behalf; and harassed his ex-partner during video calls that he was permitted to make to his daughters under a Family Law Act order.
The informant in the third matter is Leading Senior Constable Elise Douglas (the ‘Douglas matter’). The applicant was charged on 12 April 2019 with historical family violence allegations from 2008 to 2018 perpetrated against his ex-partner. The applicant was granted conditional bail on 17 April 2019 at the Melbourne Magistrates’ Court. The allegations involve family violence spanning the course of the applicant and his ex-partner’s relationship, including many instances of physical violence, making threats to harm or kill her, procuring sexual penetration by threat or intimidation and rape. It is also alleged that the applicant perverted (or attempted to pervert) the course of justice by pressuring his ex-partner to withdraw her statements against him in 2015 for an assault and contravening a Family Violence Safety Notice.
The informant in the fourth matter is Senior Constable Varri Mills (the ‘second Mills matter’). The applicant was charged on summons on 8 August 2019 with dishonesty offending allegedly committed between 2008 and 2017. It is alleged that the applicant assumed control of a driver’s licence in another person’s name, and falsely attributed traffic infringement notices that he received to the other person.
A committal hearing for the Mills, McCann and Douglas matters proceeded at the Melbourne Magistrates’ Court between 21 and 25 June 2021. The complainant in the Beilken matter is the applicant’s long-standing neighbour. He provided a statement to the police on 9 May 2019 which was included in the brief of evidence for the Douglas and McCann matters. The complainant’s ex-partner also provided a statement. Both of them gave evidence at the committal hearing in accordance with their statements.
At the completion of the committal hearing, the applicant was committed to stand trial at the County Court. He was admitted to trial bail with a surety in the amount of $20,000 provided by his father and with the following conditions:
(a) The applicant report to Oakleigh Police Station every Monday;
(b) The applicant reside at [redacted];
(c) The applicant surrender valid passports or any other valid travel documents held within 24 hours of release to the informant and not apply for any other;
(d) The applicant not attend any points of international departure;
(e) The applicant not to leave Australia;
(f) The applicant not to leave the State of Victoria;
(g) The applicant not contact witnesses for the prosecution save for the informant;
(h) The applicant not contact or attempt to contact [redacted], [redacted] or [redacted].
(i) Notwithstanding the above, [the applicant] may have contact with [his daughters] in accordance with any Family Court Order as to child contact as may be in existence from time to time. If there is no such order in existence, then there is to be no contact with the children;
(j) The applicant must provide the informant with a list of all mobile phone numbers registered to [the applicant] and in [his] possession and advise the informant within 24 hours of any other phone registered to [him] and in [his] possession together with PIN codes to open those phones;
(k) Upon request by any member of Victoria Police [the applicant] must hand over each mobile phone to allow police to peruse communications on such phones; and
(l) The applicant must not commit family violence and must comply with any intervention order to which [he is] the respondent.
The Mills, McCann and Douglas matters are next listed on 30 August 2021 at the County Court at Melbourne for directions hearing. I have been informed that an application to revoke the applicant’s bail in relation to the Mills, McCann and Douglas matters has been filed in the County Court, to proceed on a date to be confirmed. I make clear that were I to grant the applicant bail for the Beilken matter, such a grant of bail would not in any way bind a judge of the County Court in relation to the charges before that court. As counsel for the applicant Mr Ginsbourg correctly submitted, the application before me is not a review of the grants of bail in the Mills, McCann and Douglas matters. Any application to revoke the applicant’s bail in relation to those matters is entirely a matter for a judge of the County Court.
The alleged offending
The complainant is the applicant’s neighbour and a witness for the prosecution in the ongoing criminal proceedings where the applicant is the accused. The complainant and applicant have been neighbours for some 15 years. At the time of the alleged offending, the applicant was on bail with a condition not to contact any witnesses for the prosecution save for the informant.
On 2 August 2021, it is alleged that the applicant was walking down Jordan Street in Clayton South. The applicant approached the complainant, who was sitting in his vehicle parked on the street and speaking to a friend on his mobile phone. The complainant relayed this information before ending the call. The applicant said ‘Mark my words, I’m going to fuck you’, and continued walking.
The complainant got out of his vehicle and walked towards his house. The applicant allegedly twice more repeated ‘Mark my words, I’m going to fuck you’ and made an offensive gesture with his hands. The complainant entered his house and spoke to his wife. They reported the incident to the police. The complainant said he felt concerned for his safety and harassed. It is important to note that the applicant is not alleged to have inflicted or immediately threatened physical violence against the complainant during the incident.
On 5 August 2021, the police attempted to arrest the applicant but were unable to locate him. On 11 August 2021, the applicant attended the Moorabbin Police Station by appointment. In his record of interview, the applicant gave an account of the incident on 2 August 2021. The applicant said he was walking on the street and the complainant approached him, slowing his vehicle to a stop. The complainant then motioned with his hands to signify somebody wearing handcuffs. The applicant did not react, and the complainant stated, ‘Not long now’. In response, the applicant told the complainant to ‘fuck off’ and leave him alone. The applicant denied intimidating the complainant. The applicant explained that the complainant had confronted him on three previous occasions. The applicant was charged and remanded in custody.
Personal Safety Intervention Order
On 11 August 2021, interim Personal Safety Intervention Orders (‘PSIO’) were made against the applicant naming the complainant and his wife as the protected persons. The applicant consented to the making of interim PSIOs without any admission. The PSIOs contain full conditions including not to contact or communicate with the protected persons, approach or remain within five metres of them or go to or remain within 5 metres of [redacted]. The PSIOs are next listed for hearing on 3 November 2021.
The applicable legislation
In determining this application for bail, I am required to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’).[5]
[5]Bail Act 1977 (Vic) s 1B(2).
The applicant is accused of a Schedule 2 offence within the meaning of the Act.[6] At the time of committing this alleged offence, the applicant was on bail for various Schedule 2 offences in the informant Douglas and McCann matters. Bail must therefore be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.[7] In determining this, I am obliged to take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[8]
[6]Ibid, item 30 schedule 2 (contravene a conduct condition of bail).
[7]Ibid, ss 4AA(2)(c)(i), 4A(1A) and 4A(2).
[8]Ibid, s 4A(3).
If I am satisfied exceptional circumstances exist justifying a grant of bail, I must still refuse bail if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[9] In determining that issue, I must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate risk so that it is not unacceptable.[10]
[9]Ibid, ss E(1) and 4D(1)(a).
[10]Ibid, s 4E(3).
Finally, I am required to make inquiries of the respondent as to whether there is in force against the applicant a FVIO, a family violence safety notice or another recognised domestic violence order.[11] The respondent has confirmed that the applicant is currently subject to a final FVIO, which lists his ex-partner and two daughters as the protected persons. The FVIO was made on 25 June 2021 and is due to expire on 25 June 2026. The order includes full conditions with exemptions allowing communication in regard to negotiating childcare arrangements or as permitted by a Family Law Act order, communicating through a lawyer or police, or participating in counselling or mediation.
[11]Above n 5, s 5AAAA.
The applicant’s personal circumstances
The applicant is 58 years old. The applicant is employed full time as a customer representative officer. The applicant enjoys the support of his parents.
The applicant was fined in 1984 for theft from a motor vehicle, prior criminal offending which has little significance for this application.
The applicant’s contentions
On behalf of the applicant, Mr Ginsbourg of counsel submitted that a number of matters establish exceptional circumstances justifying a grant of bail and that the risk of releasing the applicant on bail is not unacceptable.
Nature and seriousness of the alleged offending
It was noted that the maximum penalties for the charges that the prosecution indicate will proceed are 12 months’ imprisonment for harassing a witness and three months’ imprisonment for contravening a conduct condition of bail.
The applicant characterised the alleged offending as a spontaneous verbal outburst arising from a chance encounter with the complainant. It was submitted that this encounter stands in significant contrast to the preceding period of more than two years during which the applicant has lived next to the complainant while on bail without any incident between them.
Strength of the prosecution case
There are significant factual issues in contention. It was submitted that the applicant’s account of the incident in his record of interview is consistent with innocence. That is, the complainant initiated the incident by taunting the applicant. The applicant states he did not react to the complainant taunting him on three previous occasions.
It was also noted that the complainant had PSIOs made against him in 2012 and 2015 to protect the applicant.
The applicant’s friend Ms Milardovic gave evidence on this application. She said in her evidence that she visited the applicant one to three times per week over the previous 12 months; that she has observed the applicant trying to avoid the complainant; and that she observed the complainant slowly drive his car by the applicant and herself on 5 August 2021. Ms Milardovic also gave an undertaking that she would report any breaches by the applicant of any order of this Court granting bail, however I am not entirely sure that she understood the implications of making such an undertaking or what the likely conditions of bail might be.
Criminal history
It was submitted that the applicant has a lack of relevant criminal history.
Compliance with the conditions of earlier grants of bail
The applicant is charged in the informant McCann matter with committing an indictable offence whilst on bail. These relate to the grant of police bail on 1 July 2018 in the first Mills matter.
The present period represents the applicant’s second time in custody, with his first experience being between 12 April 2019 when he was charged in the Douglas matter and 17 April 2019 when he was granted bail. Since that date, it was put on the applicant’s behalf that he has abided by strict conditions of bail for a period of approximately 28 months.
Personal circumstances
It was submitted that the applicant has full time employment as a customer representative officer, an assertion the respondent did not take issue with.
The applicant enjoys the support of his family, particularly his parents, with his father being surety for bail granted in the Douglas matter.
The applicant resides alone at [redacted], and proposes to return to this address if bailed. There is clearly an issue with the applicant living at this address from the respondent’s perspective as he and the complainant are neighbours.
Delay and likely sentence
The applicant has been in custody for some 15 days since 11 August 2021. The Beilken matter is next listed on 3 November 2021. If the applicant were to remain in custody between now and then, he will have served a period of 84 days in pre-sentence detention.
It was submitted on the applicant’s behalf that, if the Beilken matter proceeds summarily on 3 November 2021 and the applicant is found guilty, he is most unlikely to receive a custodial sentence for the offending. Counsel for the respondent, Ms Champion, did not concede that this would be so. It seems to me highly unlikely that the applicant would be sentenced to a term of imprisonment for the offending in the Beilken matter, subject of course to those charges being proven at a contested hearing.
Pandemic and onerous conditions of custody
Finally, the applicant relies, as all applicant’s do and appropriately so, on the COVID-19 pandemic and the onerous conditions of custody. It does appear the pandemic is becoming worse, as I have observed in earlier rulings on this topic. The New South Wales government appear to have completely lost control of the virus in that State, and, at least as at the date of the hearing for this matter, the case numbers in Victoria are increasing. For those in custody, this creates significant difficulties including periods of quarantine, the absence of appropriate activities, suspension of personal visits, and an inability to access the outside world otherwise than by telephone or video calls. There is also a risk that if COVID-19 enters the prison system in Victoria, as has occurred in New South Wales, a potential medical disaster will occur.
Unacceptable risk
The applicant submitted that bail conditions can ameliorate risk to an acceptable level, having regard to:
(a) the alleged risk factors substantially relate to the matters for which the applicant is currently on bail;
(b) aside from the Beilken matter, there has been no alleged offending since March 2019, and further, there are no additional allegations from the nine days between the incident and the applicant’s arrest;
(c) the alleged offending in the Beilken matter does not alter the risk analysis pertaining to the applicant considering the strength of the case and the isolated nature of the incident;
(d) the applicant complied with strict bail conditions for approximately 28 months without issue;
(e) the applicant does not have any proven criminal history for contravening bail or other court orders; and
(f) there is now a PSIO in force to protect the complainant.
The applicant proposed to be bailed on the same conditions to which he is otherwise subject.
The respondent’s contentions
The respondent opposed the application for bail. Ms Champion submitted on behalf of the respondent that the applicant had not discharged the burden of satisfying the Court that exceptional circumstances exist that justify a grant of bail. It was further submitted on behalf of the respondent that, even if the applicant were to establish exceptional circumstances, the applicant would pose an unacceptable risk of endangering the safety or welfare of another person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
Nature and seriousness of the alleged offending
It was submitted that the allegations against the applicant are serious, particularly the allegation of attempting to interfere with a prosecution witness pending trial in the County Court. Further, it was put that the allegations occurred proximate to the committal hearing where the complainant gave evidence and the applicant entered into undertakings for trial bail with conditions not to contact witnesses for the prosecution.
Strength of the prosecution case
Ms Champion argued that the case against the applicant is strong and the factual issues are likely to be resolved in favour of the prosecution. Ms Champion relied upon the proximity of the incident to the complainant giving evidence, the witness’s evidence of the complainant’s distress at the time, the complainant’s timely report to the police and what she described as the applicant’s admissions in his record of interview to there being an altercation.
There is CCTV footage of the incident which captures part of the altercation. I have viewed that footage. Clearly, there was an exchange between the two men. Beyond that, given the factual issues Mr Ginsbourg raised on behalf of the applicant, I can say little further except there is obviously a case against the applicant and there are triable issues which may or may not result in his acquittal.
Criminal history
Ms Champion accepted that the applicant’s criminal history is brief and of limited relevance. She noted, however, that the applicant is charged with committing an indictable offence on bail in the McCann matter and the applicant is alleged to have committed the offending for which he seeks bail whilst on bail awaiting trial for the Mills, McCann and Douglas matters.
Personal circumstances
Ms Champion submitted that there is nothing remarkable about the applicant’s personal circumstances and noted the issue of the applicant’s proposed bail address given that he and the complainant are neighbours. Whilst I acknowledge that the applicant and complainant being neighbours is obviously problematic, I suspect the applicant has no option but to live at that address.
Delay and likely sentence
Ms Champion did not altogether concede that a custodial disposition would not be imposed for the offending in the Beilken matter, although she accepted any period of imprisonment would likely be brief.
Complainants’ views
The respondent submitted that the complainant is in fear of the applicant and I assume that the complainant would not be in favour of a grant of bail.
Unacceptable risk
It was submitted that, if granted bail, the applicant will pose an unacceptable risk of endangering the safety or welfare of another person, committing an offence whilst on bail and interfering with a witness or otherwise obstructing the course of justice.
The respondent relied on the instant alleged offending which made witnesses in a criminal proceeding fearful for their safety and feel harassed. The respondent also relied on the applicant’s outstanding perverting the course of justice charges in the Douglas and McCann matters. Further, the alleged offending occurred proximate to the applicant signing new bail undertakings when he was aware that he must not contact witnesses for the prosecution.
Conclusion
As I earlier indicated, I do not propose to review the grants of bail in the Mills, McCann and Douglas matters. Those matters will come before a County Court judge on an application to revoke those grants of bail, and nothing that I say in relation to a grant of bail in the Beilken matter is in any sense intended to bind, nor would it bind, a County Court judge in dealing with the Mills, McCann and Douglas matters.
Turning first to the issue of whether the applicant has established exceptional circumstances justifying a grant of bail. Considering the Beilken matter as discreet offending in isolation from the Mills, McCann and Douglas matters, as I indicated I would, I think it is most unlikely that the applicant would be sentenced to a period of imprisonment upon a finding of guilt.
There are a number of matters which are able to be put that would suggest the applicant would not be likely to be sentenced to a period of custody for this offending. Should the charges be proven, the incident can be described as brief and spontaneous. The applicant has a limited criminal history and has otherwise complied with grants of bail for a significant period of time. I am satisfied that, if the applicant were not granted bail, it is likely that the period of pre-sentence detention he would serve prior to the matter finalising would exceed any term of imprisonment to which he would be sentenced upon a finding of guilt. I am of the view that this is itself capable of amounting to exceptional circumstances.
Turning next to the question of risk, given the nature of the offending I am persuaded that risk can be ameliorated to an acceptable level by the imposition of appropriate conditions of bail. The alleged offending is limited to a verbal exchange with the complainant and did not involve physical violence. To the extent that the applicant’s alleged conduct involved any form of unlawful assault, the prosecution have indicated an intention to withdraw that charge. In my view, a set of conditions of bail appropriately directed towards the relationship between the applicant and complainant can mitigate such risk that exists to an acceptable level.
I therefore propose that the applicant be admitted to bail on his own undertaking and with conditions. All the conditions of bail in the earlier grants of bail for the Mills, McCann and Douglas matters remain in place. As such, I will only add conditions which seem to be to be necessary in relation to the Beilken matter.
I grant bail and make the following orders:
1.The said Nick Rizakis (‘the applicant’) be admitted to bail upon his own undertaking and with the following conditions:
(a)The applicant reside at [redacted] in the state of Victoria (‘place of residence’), and in residing at those premises, have no contact with [redacted] (‘the complainant’) and not go within 5 metres of the complainant’s residence;
(b)The applicant must notify the informant Detective Senior Constable Michael Beilken or his nominee, being an authorised member of Victoria Police, at least 7 days in advance of any proposal to change to his place of residence;
(c)The applicant is to report to the Officer in Charge of Oakleigh Police Station, or their nominee, every Monday, Wednesday and Friday between the hours of 12:00a.m. and 11:59p.m.;
(d)The applicant not contact or attempt to contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, specifically, the applicant is not to contact or attempt to contact, whether directly or indirectly, the complainant or [redacted];
(e)The applicant not commit ‘family violence’ within the meaning of the Family Violence Protection Act 2008 (Vic);
(f)The applicant comply with all current Family Violence Intervention Orders in which he is the respondent;
(g)The applicant comply with all current Personal Safety Intervention Orders in which he is the respondent;
(h)The applicant is to appear:
(i)at the County Court at Melbourne on 30 August 2021 or such other date thereafter as directed by that Court; and
(ii)at the Magistrates’ Court at Melbourne on 3 November 2021 or such other date thereafter as directed by that Court.
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