Re Salievski (No 2)
[2015] VSC 753
•18 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0172
| 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: | 18 December 2015 |
DATE OF JUDGMENT: | 18 December 2015 |
CASE MAY BE CITED AS: | Re Salievski (No 2) (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 753 |
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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 – Previous refusal of bail – New facts and circumstances – Bail refused – Bail Act 1977 s 4(2)(d)(i), s4(4)(a), s 18, s 18AA.
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Mr N Watt (Solicitor) | Jodie Dunn, Australian Legal Practitioner for Victoria Police |
| For the Accused | Mr A Dickenson | Melasecca Kelly & Zayler |
HIS HONOUR:
Lirim Salievski, the applicant, seeks bail from this Court. The application is supported by an affidavit of the applicant’s solicitor, Anh Nguyen, affirmed 2 December 2015 (‘the applicant’s affidavit’).
Since the applicant is charged ‘with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence‘, by virtue of s 4(4)(a) of the Bail Act 1977 (‘the Act’), the court must refuse bail unless the applicant shows cause why his detention in custody is not justified. In summary, the applicant relies on the following matters as set out in the applicant’s affidavit in an endeavour to ‘show cause’:
· first, the case against him ‘is defensible’;[1]
[1]In the course of oral submissions, however, counsel for the applicant described the prosecution case as ‘weak’.
· secondly, he has a stable place of residence with his mother and father in Dandenong;
· thirdly, he has employment available;
· fourthly, suggested delay in the disposition of the charges against him;
· fifthly, any time in custody imposed for the commission of the relevant offences ‘could exceed presentence detention’;
· sixthly, the applicant relies on strong ties to the jurisdiction; and
· seventhly, it is claimed that there is uncertainty ‘as to whether or not further time will be imposed for breaching [a] suspended sentence if the applicant is convicted on these charges’.
The respondent opposes bail. Two affidavits are relied upon: first, the affidavit of Sally Spalding, dated 7 October 2015, which was before me on a previous application on 15 October 2015; and, secondly, the affidavit of Senior Constable Lara Murray, sworn 9 December 2015 (‘the Murray affidavit’). It is submitted, first, that by virtue of s 4(4)(a) of 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.
The history of the matter is as follows. On 28 August 2015 the applicant was refused bail in the Magistrates’ Court at Dandenong. The Magistrate refused bail finding that the applicant constituted an unacceptable risk of further offending due to recent prior convictions, and also because the applicant had only recently commenced the operational period of a suspended sentence. The applicant then applied to this Court for bail, which was refused on 15 October 2015.[2] A further application for bail, ostensibly to be based on new facts and circumstances, was listed at the Magistrates’ Court at Dandenong on 25 November 2015. The applicant’s affidavit asserts that ‘the application was struck out as the Magistrate took the view that the proper venue for the application was the Supreme Court’. As a result, the applicant has made another application to this Court.
[2]Re Salievski (Bail Application) [2015] VSC 575.
Before proceeding further, it should be noted that, by virtue of s 18(1) of the Act, a person ‘who has been refused bail and is in custody pending the hearing or trial of a charge may make a further application for bail’. By virtue of s 18AA(1)(a), a court must not hear the application, however, unless ‘the applicant satisfies the court that new facts or circumstances have arisen since the refusal … of bail‘. In cases other than treason or murder, sub-s 18(3)(b) requires any such application to be made ‘to the court to which the person is remanded to appear’; and, by sub-s 18(4), ‘if it is reasonably practicable to do so’, the application ‘is to be heard by a court constituted by the same judge or magistrate who heard the previous application for bail’. According to the applicant’s affidavit, the Magistrate took the view that the proper venue for the application — based though it was on new facts and circumstances — was the Supreme Court. With respect, if the Magistrate held that view — and I do not make a finding about it because of the paucity of material in the applicant’s affidavit — then he misapprehended the effect of ss 18(3) and (4). The fact that this Court had refused bail on 15 October 2015 did not prevent the Magistrates’ Court entertaining a fresh application for bail, so long as the applicant was able to satisfy the Magistrates’ Court that there were new facts and circumstances which had subsequently emerged. Since the matter is now before this Court, however, and since it would be inconvenient to insist on the application first being made to the Magistrates’ Court (if such a course was indeed necessary in the circumstances), I intend to deal with the matter on its merits.[3]
[3]See also s 18AA(2) of the Act.
On 12 May 2015, the applicant was charged with one charge of handling stolen goods[4] and one charge of negligently dealing with the proceeds of crime[5] (‘the present offences’). When I dealt with the applicant’s previous application to this Court for bail, I described the circumstances of the alleged offending as follows:[6]
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.
[4]Crimes Act 1958, s 88(1).
[5]Crimes Act 1958, s 194(4).
[6]Re Salievski (Bail Application) [2015] VSC 575, [6]–[10].
On the previous occasion, I also made the following observations about the applicant’s challenge to the essential facts:[7]
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.
[7]Ibid [11].
Under the heading ‘New facts and circumstances’, the applicant’s affidavit asserts the following (with my emphasis):
19.At the time of the previous bail applications, statements from Sergeant Cartagena and Senior Constable Dergacz, whom were present at the search of the property, had not been provided to the Defence. These statements were only provided on 11 November 2015. These statements contain some different factual scenarios which may weaken the prosecution case.
20.At the bail application on 25 November 2015, the informant confirmed that the mobile phone containing the video footage was handed to police by another person. The informant also indicated that it cannot be confirmed whether the video was sent or taken from the phone. There is nothing contained in the brief of evidence to say that the applicant was the driver of the vehicle captured in that footage. The footage was sent to Defence on 30 November 2015. Defence has not received it yet.
21.There has been a delay in having this matter heard as a Contested Hearing. The Contested Hearing was booked in for 12 January 2016. However, Defence was advised on 30 November 21015 that some of the prosecution witnesses are no longer available on this date. The next available date for a Contested Hearing is 29 February 2016.
22.The applicant has been on remand since 12 May 2015. By the time the matter is determined on 29 February 2016 the applicant would have accrued 293 days of presentence detention. This is likely to exceed the sentence that would be imposed if the applicant was found guilty at the Contested Hearing. The co-accused in this matter, Patrick Maher, has been charged with the same offences and has pleaded guilty to all charges in relation to this matter (and others). The co-accused received a sentence of 90 days imprisonment and a 24 month Community Corrections Order.
Further, under the heading ‘Show cause’, the applicant’s affidavit contains the following:
23.The applicant is in a show cause situation pursuant to s 4(a) of the Bail Act as he was on bail for an indictable offence at the time of the alleged offending. The indictable offences the applicant was on bail for related to the matter referred to in paragraph 12 which resolved to the applicant pleading guilty to one charge each of possess cannabis (0.3 g) and possess methylamphetamine (0.4 g) for which he was fined a total of $800.
24.The following matters are raised on the subject of show cause:
(i) Case is defensible;
(ii) The applicant has a stable place of residence with his mother and father at 47 Keating Crescent Dandenong;
(iii) Availability of employment;
(iv) Delay;
(v) Time in custody could exceed presentence detention;
(vi) Strong ties to the jurisdiction;
(vii) Uncertainty as to whether or not further time will be imposed for breaching the suspended sentence if the applicant is convicted on these charges.
Paragraph 23 of the affidavit alludes to the ‘matter referred to in paragraph 12’. This is a reference to the offences for which the applicant was on bail at the time of the commission of the present offences, determined in the following circumstances. A trial commenced in the County Court on 10 August 2015. The trial resolved on 12 August 2015, however, and the applicant pleaded guilty to one charge each of possessing cannabis (0.3 grams) and possessing methylamphetamine (0.4 grams). It seems that the applicant had spent 293 days on remand, which his counsel described as ‘dead time’. The applicant was fined a total of $800.
The applicant’s affidavit asserts that the recently provided statements of two police officers, Cartagena and Dergacz, ‘contain some different factual scenarios which may weaken the prosecution case’. I have read those two statements, which are are Exhibit LM-3 to the Murray affidavit. As far as I can see, there is nothing in the statement of Detective Sergeant Fernando Cartagena, dated 11 November 2015, or that of Senior Constable Craig Dergacz, dated 6 November 2015, which give the case against the applicant a different (and less inculpatory) complexion. Indeed, the statements record that, whilst police were present, Pedro Mavroidakos produced a mobile phone belonging to the applicant which contained the video footage to which I earlier referred, depicting two male occupants in the still missing stolen Ford Mustang driving at excessive speeds. I cannot see that the statements weaken the prosecution case. Indeed, it seems to me that they strengthen it.
The applicant’s affidavit also asserts that the case against him ‘is defensible’. Without wishing to sound flippant (or cynical), it could be said of almost every case that is ‘defensible’. As I observed when dealing with the previous application,[8] however, the prosecution case does not strike me as weak. 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. In my view, the evidence that the bum bag was in the applicant’s possession has more lately been fortified by the contents of the statements of Detective Sergeant Fernando Cartagena and Senior Constable Craig Dergacz. Indeed, in stark contrast to the applicant’s instructions conveyed orally through his counsel on the last occasion, Detective Sergeant Cartagena states that he observed the applicant with the bum bag attached to his waist.
[8]Ibid [18].
So far as delay is concerned, the original date for a contested hearing was, it seems, 12 January 2016. I am told that that date will have to be vacated because of the unavailability of prosecution witnesses — including Detective Sergeant Cartagena and Senior Constable Reeves — whom the applicant will wish to have cross-examined. The new date is now some seven weeks later, 29 February 2016. Acknowledging that any undue delay in the disposition of the matter is undesirable, on its face it does not seem to me that in the circumstances the delay is inordinate or inexcusable.
Allied to the delay, the applicant suggests that, by the time the charges against him for the present offences are determined on 29 February 2016, the applicant will have accrued 293 days of presentence detention, which, when added to other time in custody, will mean that the applicant will have spent some 19 months in custody by the time the charges for the present offences are determined. It is asserted that such a period ‘is likely to exceed the sentence that would be imposed if the applicant was found guilty at the Contested Hearing’. It has been pointed out that a co-accused, Patrick Maher, was charged with the same offences as the applicant. On 6 October 2015, in the Dandenong Magistrates’ Court, Maher pleaded guilty to all relevant charges (and others), and received a sentence of 90 days’ imprisonment coupled with a 24 month Community Correction Order. In my view, however, despite parity considerations, I would regard it as surprising if, after a contested hearing at which he was convicted, the applicant received a sentence approximating what appears to be the remarkably lenient sentence imposed on Maher. Although it is difficult to predict these things with any precision, having regard to the applicant’s unenviable list of prior convictions, and in light of the absence of any amelioration of sentence to be derived from a guilty plea, I would expect the applicant to receive a sentence of imprisonment which will significantly exceed accrued pre-sentence detention.
When dealing with the previous application,[9] I observed that 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. Notwithstanding that they are relatively old, however, it remains of some relevance that between 26 September 1995 and 8 January 2008, the applicant attracted ten convictions for failing to answer bail. Perhaps more significantly, on 2 December 2014 the applicant was convicted of contravening a bail conduct condition and of committing an indictable offence whilst on bail. Also of significance is the fact that, 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. Thus, when charged with the present offences, the applicant was subject to a suspended sentence of imprisonment imposed less than a week earlier. Should the present offences be found proven, the suspended sentence will have been breached, rendering the applicant liable to immediate imprisonment. The respondent submits that, particularly when viewed against the applicant’s previous bail history, the fact that a suspended sentence has been breached (exposing the applicant to the prospect of immediate imprisonment), makes the applicant a flight risk.
[9]Ibid [2].
Moreover, there are other charges outstanding against the applicant, which I need not describe in detail. They consist mainly of driving and weapon offences. As I understand the position, the applicant is currently on summons for four other matters. Thus, 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. He 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, for offences allegedly committed 10 November 2014, include possessing a prohibited weapon without exemption; driving a motor vehicle whilst authorisation suspended; and driving a motor vehicle without rear ‘P’ plate displayed.
The applicant claims to have strong ties to the jurisdiction (although, I note, I was not told anything on this occasion about his relationship with his ex-partner and child). He also claims to have an address at which he might reside with his mother and father. Neither of the applicant’s parents — who were in court during the hearing — were called to give evidence. As I said in the course of the hearing, however, I am prepared to assume that the applicant could reside with his parents at their address if granted bail.
As to the availability of suggested employment, when I determined the previous application I observed that the manner in which it was sought to establish the availability of employment was ‘most unsatisfactory’; and said that, in the circumstances, I was not prepared to place any weight on the unsigned letter supposedly evidencing the availability of employment ‘or its unverified contents’.[10] Counsel for the applicant informed me in the course of the hearing that he had ‘no more cogent material’ concerning the availability of employment. Hence, I have no reason to alter the views that I previously expressed.
[10]Ibid [20].
At the risk of repetition, the applicant submits that he should be granted bail. He submits that cause is shown why his detention in custody is not justified, and further contends that he does not pose an unacceptable risk, relying in combination upon the various factors that I have discussed.
As I said on the earlier occasion that I dealt with the applicant:[11]
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.[12] Any grant of bail must carry some risk,[13] 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.
[11]Ibid [23].
[12]Robinson v The Queen [2015] VSCA 161, [62]–[65] (Priest JA); Re Guirgis [2015] VSC 242, [40]–[43] (Priest JA).
[13]Ibid.
I am not persuaded that the applicant’s detention in custody is not justified. Based on his history, I am of the opinion 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. Only a year ago, as recently as December 2014, the applicant was convicted of committing an offence whilst on bail. Furthermore, he allegedly committed the present offences less than a week after being placed on a suspended sentence for an offence concerned with the attempted perversion of the course of justice. The prosecution case on the present offences does not appear to me to be weak; and I regard it as extremely likely that, if he is convicted of the present offences, the applicant will be immediately imprisoned. I cannot see that any of the conditions of bail that have been suggested would make the perceived 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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