Re Salievski (Bail Application)
[2015] VSC 575
•15 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0141
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by LIRIM SALIEVSKI |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2015 |
DATE OF JUDGMENT: | 15 October 2015 |
CASE MAY BE CITED AS: | Re Salievski (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 575 |
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CRIMINAL LAW – Bail – Handling stolen goods and dealing with the proceeds of crime – Applicant required to ‘show cause’ – Whether detention justified – Whether unacceptable risk –Bail refused – Bail Act 1977 s 4(2)(d)(i), s4(4)(a).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Watt (Solicitor) | Ms Moricia Vrymoet, Australian Legal Practitioner for Victoria Police |
| For the Accused | Mr H M Roberts | Melasecca Kelly & Zayler |
HIS HONOUR:
Lirim Salievski, the applicant, was refused bail in the Magistrates’ Court at Dandenong on 25 August 2015. He now seeks bail from this Court.
The applicant is aged 37 years. He has a long list of prior offences commencing in 1990, mainly for dishonesty, drug and driving offences. His history also includes several instances of failing to answer bail, although the last of those was in 2008. Significantly, on 5 May 2015 the applicant was sentenced to two years and three months’ imprisonment, suspended for three years, on a charge of attempting to pervert the cause of justice, false imprisonment and using a prohibited weapon.
On 12 May 2015 the applicant was charged with one charge of handling stolen goods[1] and one charge of negligently dealing with the proceeds of crime[2] (‘the present offences’).
[1]Crimes Act 1958, s 88(1).
[2]Crimes Act 1958, s 194(4).
The respondent opposes bail. It is submitted, first, that by virtue of s 4(4)(a) of the Bail Act 1977 (‘the Act’), the applicant is required to show cause why his detention in custody is not justified, in that he has been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence; and, secondly, relying on s 4(2)(d)(i), it is submitted that there is an unacceptable risk that if released on bail the applicant would fail to surrender himself into custody to answer bail or would commit an offence whilst on bail.
When charged with the present offences, the applicant was subject to a suspended sentence of imprisonment imposed one week earlier. If found proven, the present offences will breach the suspended sentence, rendering the applicant liable to immediate imprisonment. This consideration, the respondent submits — particularly when viewed against the applicant’s previous bail history — renders the applicant a flight risk.
So far as the present offences are concerned, the prosecution case is that on Tuesday, 12 May 2015, at 10.30am, police attended premises at Unit 3, 5 Keys Street, Dandenong, to arrest a co-accused, Patrick Maher. The applicant was found inside Unit 3, together with Maher and several others. The applicant was searched and found to be in possession of a ‘bum bag’ containing detailed instructions on removing number plates from Ford Mustang motor vehicles, together with tools that could be used to remove the number plates .
Whilst at the premises, police observed a motor vehicle under a protective cover parked between units 1 and 2, in the unit complex private car park. Once the cover was removed the vehicle was identified as a stolen Ford Mustang, which, inquiries revealed, had been stolen during a burglary on Friday, 8 May 2015, at the Monash Car Centre situated at 877 Princes Highway, Springvale. CCTV cameras captured three males use a motor vehicle to ram the roller door at those premises to force entry. Once inside, the burglars stole two Ford Shelby Mustangs — recently imported from USA and valued at $100,000 each — by driving them away.
Occupants of other units told police that only the occupants from Unit 3 use the relevant car space, and that the stolen Ford Mustang had been there for the past few days.
A search warrant was later executed at Unit 3. Police found two sets of Ford Mustang motor vehicle keys; one set of motor vehicle keys belonging to the Ford Mustang motor vehicle located at the premises (the second set of motor vehicle keys belonging to the other Ford Mustang, which has not been recovered); and one Ford Mustang owner’s manual (belonging to the Ford Mustang motor vehicle located at the premises).
A mobile telephone belonging to the applicant was also seized by police. During later analysis of the telephone’s contents, police located and obtained video footage depicting two male occupants in the still missing stolen Ford Mustang driving at excessive speeds.
The applicant disputes essential features of the prosecution case. Through his counsel, he was permitted — without objection — to put his instructions as to what occurred. Of course, compared with the prosecution’s version of events confirmed on affidavit, his unsworn version of events is worthy of little weight. There was no attempt to confirm any aspect of his version by evidence on oath or affirmation.
There are other charges outstanding against the applicant. I need not recount them in detail. In the main, they consist of driving and weapon offences. The applicant is currently on summons for four other matters. He has been charged with offences allegedly committed on 24 August 2014, including possessing a prohibited weapon without exemption; possessing a controlled weapon without exemption; using an unregistered motor vehicle; using a motor vehicle without number plates affixed; fraudulent use of a registration label or plate; and driving a motor vehicle without rear ‘P’ plate displayed. The applicant also faces charges allegedly committed on 7 November 2014, being driving a motor vehicle whilst authorisation suspended; driving a motor vehicle without a rear ‘P’ plate displayed; and using an unregistered motor vehicle. Other charges he faces, allegedly committed 10 November 2014, are possessing a prohibited weapon without exemption; driving a motor vehicle whilst authorisation suspended; and driving a motor vehicle without rear ‘P’ plate displayed.
The offences for which the applicant was on bail at the time of the commission of the present offences were recently determined. A trial commenced in the County Court on 10 August 2015. On 12 August 2015, however, the trial resolved and the applicant pleaded guilty to one charge each of possess cannabis (0.3 grams) and possess methylamphetamine (0.4 grams). He had spent 293 days on remand and was fined a total of $800. His counsel described this as ‘dead time’.
On 25 August 2015, the applicant sought bail from the Magistrates’ Court at Dandenong. The application was refused on 28 August 2015, and the charges were adjourned for mention until today’s date. In refusing bail the Magistrate held that the applicant constituted an unacceptable risk of further offending due to recent prior convictions, and the fact that he had only recently commenced the operational period of a suspended sentence.
Between 26 September 1995 and 8 January 2008, the applicant amassed ten convictions for failing to answer bail. Notwithstanding their relative antiquity, they are of some relevance. Of more significance, on 2 December 2014, he was convicted of contravening a bail conduct condition and of committing an indictable offence whilst on bail. Furthermore, as I have mentioned, if the present offences are proven, the applicant faces a real prospect of immediate imprisonment, having breached a suspended sentence.
The applicant submits that he should be granted bail. He submits that cause is shown why his detention in custody is not justified, and contends that he does not pose an unacceptable risk. It is submitted that cause has been shown why his detention in custody is not justified, since:
· the prosecution case is not strong;
· the indictable offences for which applicant was on bail at the time of the alleged offending resulted in a fine, but the applicant served 293 days on remand;
· the applicant has strong ties to the jurisdiction, including an ex-partner and child with whom he has resided for over three years;
· he was previously granted bail with a condition that he reside at the same residential address where he now resides ‘without complaint’;
· he has employment available to him; and
· there are no allegations of the use of illicit substances.
The applicant also relies on delay, although this aspect was not articulated with any clarity.
As I observed in discussion, the prosecution case does not strike me as weak. To my mind, its strength or weakness will depend on the evidence linking the contents of the ‘bum bag’ to the stolen vehicle; and, in turn, the strength of the evidence linking the applicant to possession of the bum bag. The applicant’s counsel at first conceded that the bum bag was in the applicant’s possession. After a short adjournment so that he could take instructions, counsel’s instructions changed — or, at least, were clarified — concerning the possession of the bum bag and its contents, so that the applicant now eschews any suggestion that the incriminating articles were in his possession. I cannot see, however, that the prosecution case is weak.
The applicant claims to have strong ties to the jurisdiction — including a stable relationship with his ex-partner and child — and an address at which he might reside with his father. Neither his partner nor father were, however, called to give evidence. I was told that the applicant’s father had a ‘specialist appointment’, and that his ex-partner was ‘unavailable’ (no reason being advanced for her unavailability). In the circumstances, I cannot be satisfied of the purported stability of the applicant’s relationship, or the availability of an appropriate residence.
As to the availability of suggested employment, the manner in which it was sought to establish this matter was most unsatisfactory. In the circumstances, I am not prepared to place any weight on the unsigned letter, Exhibit 2, or its unverified contents.
As to the use of illicit substances, no evidence was put before me — as is often the case — to demonstrate abstinence. In the circumstances, I am able to put little weight on assertions from the Bar table about such matters.
Finally, as to delay, no attempt was made to provide any particulars of likely delay. It is not a matter about which I can make a guess, whether educated or otherwise. In the absence of any particulars of alleged delay, it is not a matter capable of being taken into account.
Section 4(2)(d)(i) of the Act provides that a court shall refuse bail if satisfied that there is an unacceptable risk that an accused would, if released on bail, do any of the things enumerated in the subsection. The burden of persuasion as to unacceptable risk does not lie with the applicant. He is not required to show an absence of unacceptable risk. Section 4(4)(a) does, however, place a burden of persuasion on the applicant for bail. The mere fact that s 4(4)(a) is attracted, however, does not necessarily establish that the applicant poses an ‘unacceptable risk’ within the meaning of s 4(2)(d)(i). Whether he does (or does not) pose an unacceptable risk requires an evaluation of the suggested risk (or risks), consistently with the requirements of s 4(3) of the Act.[3] Any grant of bail must carry some risk,[4] although s 4(2)(d)(i) contemplates that there are some risks which are acceptable; and that, in some cases, what might at first be thought to be an unacceptable risk may be rendered acceptable by, for example, the imposition of strict conditions of bail.
[3]Robinson v The Queen [2015] VSCA 161, [62]–[65] (Priest JA); Re Guirgis [2015] VSC 242, [40]–[43] (Priest JA).
[4]Ibid.
The applicant has failed to persuade me that his detention is not justified. Indeed, I am of the view that there is an unacceptable risk that, if granted bail, the applicant will fail to surrender himself or will commit further offences whilst on bail. His history is telling. He was convicted of committing an offence whilst on bail as recently as December 2014, and he allegedly committed the present offences within a week of being placed on a suspended sentence. If he is convicted of the present offences — and, as I say, the prosecution case does not appear to me to be weak — in all likelihood he will immediately be imprisoned. In my view, no putative conditions of bail have been advanced which would render the risks acceptable.
For these reasons, the applicant has failed to show cause why his detention in custody is not justified.
Order
The application for bail is refused.
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