Re Sazdov
[2008] VSC 605
•24 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 1449 of 2008
IN THE MATTER of the Bail Act 1977 (Vic)
And
IN THE MATTER of an Application for Bail by DANIEL SAZDOV
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 December 2008 | |
DATE OF JUDGMENT: | 24 December 2008 | |
CASE MAY BE CITED AS: | Re Daniel Sazdov | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 605 | First Revision: 8/1/09 |
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BAIL – Murder and other alleged offences of violence – Exceptional circumstances not shown – Cause not shown – Unacceptable risk established – Application refused - Bail Act 1977
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Scheid | Office of Public Prosecutions |
| For the Applicant | Mr L. Gwynn | Clarebrough Pica |
HIS HONOUR:
This is an application for bail by Daniel Sazdov pursuant to an application filed on 16 December 2008. The applicant was born on 4 December 1987 and was 20 years of age at the time of the alleged offences. He is currently in the Metropolitan Remand Centre.
He is charged with four other co‑accused. He is charged with four counts of intentionally causing serious injury, four counts of recklessly causing serious injury, two counts of intentionally causing injury, two counts of recklessly causing injury and one count of affray; and also with one count of murder, the alleged victim being Doa Tran, who died on 29 February 2008. The alleged offences occurred on 22 February 2008.
Sub-section 4(2) of the Bail Act 1977 provides that a court shall refuse bail in the case of a person charged with murder except in accordance with section 13 of the Act, which in turn requires that bail shall not be granted to a person charged with murder unless the court is satisfied that exceptional circumstances exist which justify the making of such an order.
The offences alleged against the applicant other than murder are show cause offences for the purposes of s 4(4)(c) of the Bail Act, because it is alleged that the accused and persons allegedly acting in concert with him used offensive weapons on the relevant occasions. Further, s 4(2)(d) provides that the court shall refuse bail if satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety and welfare of members of the public, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
The applicant has the onus of satisfying the court of exceptional circumstances within the meaning of s.13 of the Bail Act, and the onus of showing cause why bail should be granted for the purposes of s 4(4)(c) of the Act, whereas the Crown has the onus of satisfying the court in relation to any matters relied upon by way of unacceptable risk pursuant to s 4(2)(d) of the Bail Act.
In the present case the Crown does rely on alleged unacceptable risk of the accused committing an offence whilst on bail, or of endangering the safety and welfare of other persons.
In that regard, by virtue of s 4(3) of the Bail Act, the court is required to have regard to the following considerations to the extent that they appear to be relevant: (a) the nature and seriousness of the offence; (b) the character, antecedents, associations, home environment and background of the accused person; (c) the history of any previous grants of bail to the accused person; (d) the strength of the evidence against the accused person; and (e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail.
In summary, the allegations against the accused are as follows.
On the evening of 22 February 2008, the deceased, Doa Tran, was with a group of friends “cruising” in three cars in the Kealba area. The deceased was travelling in a Magna. Unbeknown to the occupants of these cars, they had driven past an address at 39 Driscolls Road, Kealba, at least two or three times. The persons at that address, including the applicant, believed them to be part of a rival gang and allegedly armed themselves and set out to locate the occupants of the car for the purpose of fighting them.
Ultimately they located the occupants of the car, which was parked near shops in Stenson Road, Kealba. Armed with hockey sticks, bats and, ultimately at least, a small axe which was allegedly used by the co‑accused Kane Lunt, the group surrounded the vehicle and commenced to smash its windows and to assault the occupants.
In the course of the assault it is alleged that the applicant, armed with a hockey stick, jumped on to the bonnet and smashed the windscreen.[1] It is alleged that, later in the affair, Kane Lunt repeatedly struck the deceased, who was sitting in the back passenger side seat of the vehicle, to the back of his head with the blunt side of the axe, causing him to lose consciousness and collapse.
[1]I was informed by the applicant’s counsel that the windscreen glass was of the reinforced kind which shatters and that the smashing of the windscreen did not, in itself, cause injury to any occupants of the car.
When another of the vehicles occupied by the alleged victim's friends, a Suzuki, drove by distracting the assailants, the victims were able to escape and drive to a nearby service station before driving direct to Sunshine Hospital where all occupants were admitted. The deceased was immediately transferred to the Royal Melbourne Hospital and placed in an induced coma.
Shortly afterwards the Suzuki drove past the Driscolls Road address and the applicant and the co‑accused, who had returned there, recognised it and allegedly pursued it, cornered it and attacked it in a similar way with all windows being smashed.
Police attended at the scene, and arrested the applicant and several of the co‑accused. Others fled on foot.
When subsequently interviewed the applicant made no admissions. He was then charged with attempted murder and other charges and remanded in custody. On 5 March 2008 he was further charged with affray and on 20 March 2008, following the death of the victim, with murder. I am informed that the murder charge has supplanted the previous attempted murder charge.
The affidavit of Peter John Andrew Atkinson, solicitor, for the Crown, exhibits the applicant's criminal history, together with a report dated 17 December 2008 comprising a more detailed Crown summary of the case against the applicant and the co‑accused, and also exhibits a copy of the police brief.
The applicant remains in custody for an adjourned contested committal which is due to resume at the Melbourne Magistrates' Court on 23 March 2009.
Mr Atkinson’s affidavit indicates that the Crown opposes the application for bail on three grounds, namely: (1) that the applicant must show there are exceptional circumstances which justify the grant of bail and has not done so; (2) that there is an unacceptable risk that the applicant, if released on bail, would commit further offences whilst on bail; and (3) that there is unacceptable risk that the applicant, if released on bail, would endanger the safety and welfare of members of the public. Before me today the Crown has also referred to the obligation on the accused under s 4(4)(c) of the Bail Act to show cause in respect of the offences other than murder, and the Crown asserts that the accused has not done so. I will return shortly to some additional matters contained in Exhibit PA2 to Mr Atkinson's affidavit dealing with assertions made on behalf of the applicant in the application for bail, and dealing with his criminal history.
In support of the application for bail, Mr Peter Clarebrough, solicitor for the accused, deposes as follows.
The applicant turned 21 years of age on 4 December 2008. He resides with his mother and younger brother, aged 17 years. He was remanded in custody at the Melbourne Custody Centre for four days and then for two weeks at the Melbourne Assessment Prison. Since 14 March 2008 he has been held in custody at the Metropolitan Reception Centre.
The filing hearing was listed for 25 February 2008. The order of the court was to provide a hand up brief by 7 April 2008 with a committal mention due on 19 September 2008. The hand up brief was not served on time and the prosecution made an application to vary the dates of service of the brief and the committal mention date. The new service date for the hand up brief was 5 May 2008, and the new committal mention date was 14 July 2008.
On 14 July 2008 the court provided a date for the committal hearing being 1 December 2008, to be heard in the County Court as a result of one of the accused being only 16 years of age. The matter could not be heard in the Magistrates' Court committal stream. Ten days was set aside for the committal hearing.
Mr Gwynn of counsel was briefed to appear on behalf of the applicant and attended upon him with Mr Clarebrough for a conference the Metropolitan Reception Centre. Mr Gwynn contacted the prosecution, as there seemed to be some materials not included in a brief. He was provided with some of the material. The committal commenced on 1 December 2008 with discussions as to the hearing of the committal proceeding and as to whether the matter could be resolved.
Following those discussions, counsel indicated that the applicant would agree to plead to one charge of affray. The matter was stood down to allow the prosecution to get instructions from the Crown Prosecutor in relation to the offer. The offer in respect of Mr Sazdov and others from the co‑accused were refused.
On returning to the Court when the hearing was to commence, the prosecutor started to provide various statements that had not been a part of the brief provided on 5 May 2008.
The first witness was called and evidence was given by him. The matter was adjourned for a further hearing on the next day, being 2 December 2008.
On the second day of hearing the parties attended Court to be provided with further statements including the autopsy report (which was undated) and a toxicology report (which was also undated) that were passed on to counsel across the Bar table.
Objections from the defence were voiced. Complaints were made that it was impossible to continue with further documents being drip-fed to the defence. The defence was then told there were still DNA statements to be provided.
The issue in the case, Mr Clarebrough says in his affidavit, is the determination of the roles played by each of the accused. He says that it was agreed by the presiding magistrate that defence counsel were in the unenviable position of being asked by the prosecution to continue to cross‑examine witnesses without relevant statements. According to Mr Clarebrough, some of the missing statements were very important to determine the roles of each of the defendants, and the only recourse was to adjourn the matter. The matter was stood over accordingly for the presiding magistrate to determine when it could be returned for hearing, with an estimate of 10 days. A committal hearing was ultimately set down for 23 March 2009 for 10 days, with a mention hearing listed for 13 March 2009. All statements not already provided to the defence were to be provided by that date. Mr Clarebrough says that the order of the magistrate to adjourn the committal hearing to 23 March 2009 is the second time in the proceeding that the matter has been adjourned as a result of the prosecution not having provided materials that should have been provided earlier.
Mr Clarebrough proposes that the applicant would, if released, live with his mother at her home address in Delahey. Further, he deposes that the applicant, if released, has employment available to him. Three letters relating to two offers of employment are annexed to the affidavit.
Finally, Mr Clarebrough deposes there is no allegation that the applicant, Mr Sazdov, struck the deceased.
In response to Mr Clarebrough's affidavit, the informant, Mr Welsh, says that the original application for an extension of time for service of the hand up brief was made and heard on Wednesday 5 March 2008 at the Melbourne Magistrates' Court; that this was well in advance of the original date for service of the statements being 7 April 2008, and that the application was granted at that time by the court. All this now seems to be conceded by the applicant.
In relation to Mr Clarebrough's assertion that Mr Gwynn contacted the prosecution over some materials not being included in the brief, the informant says that he only spoke to Mr Gwynn on Sunday 30 November 2008, and that Mr Gwynn then informed him that Mr Gwynn required copies of photo boards conducted by investigators. After a short discussion it was agreed that the informant would provide Mr Gwynn with copies of those photo boards the next day, being the first day of the contested committal. Again, this seems to be undisputed.
The informant next says that Mr Gwynn was given all the material held at the time by himself. Due to the complex nature of the brief, a number of statements were yet to be supplied to the informant. When compiling the brief, if a statement had not yet been obtained, a notice was placed within the relevant section of the brief giving appropriate notice that the statement was proposed. The informant says that no issue about statements not having been supplied was raised on the date of the committal mention on 14 July 2008. Again, that does not seem to be in dispute.
The informant says that the autopsy report and the toxicology report were forwarded to the Homicide Squad and were not received by the informant prior to the contested committal. He says that it is his understanding that all forensic evidence will be available in late January or early February 2009.
The informant says (and, again, it is not disputed), that the applicant has a history of being violent, and that he has appeared at both Sunshine and Melbourne Children’s Courts in relation to violence‑related offences. These include unlawful assault, intentionally threatening serious injury, intentionally causing serious injury, affray, recklessly causing serious injury, possessing a prohibited weapon, behaving in a riotous manner in a public place, possessing a controlled weapon, possessing a dangerous article and assaulting police.
The informant continues as follows in further undisputed material:
On 5 March 2003 the applicant was with eight associates when they followed a male victim who was walking home from Kealba Secondary College. Sazdov and his eight associates followed the male to a nearby park where he was surrounded and assaulted with garden stakes. During the attack the victim fell to the ground and was repeatedly kicked and punched. The attack only ceased upon the males being observed by a passer-by.
On 26 July 2004 the applicant received eight months' probation which was handed down at the Sunshine Magistrates' Court.
On 11 April 2003 at McCoven Road, Taylors Lakes, the applicant was with three associates when they attacked a male victim. The applicant and his associates struck the victim repeatedly with garden stakes to his upper body. The victim was also repeatedly punched to the head. As a result of this assault, the victim required medical attention which required several stitches to a wound he received on his head.
On 1 May 2005 the applicant attended at Watergardens Shopping Centre, Taylors Lakes with three other males. The fight was started by Sazdov and his associates who then assaulted two victims. During the assault, Sazdov stabbed one victim approximately four times with a small bladed knife. Police later arrested Sazdov at his father's address where they also located two machetes near his bedroom door. Sazdov showed no remorse and gave a no comment interview to police.
It is mentioned in his police file that Sazdov has links with local gangs and that he constantly carries knives and threatens to stab people, including two 15‑year‑old girls.
At the subsequent bail application at the Sunshine Magistrates' Court, Leading Constable Caroll, who has 22 years of operational policing experience, stated the following whilst giving evidence, 'It's just a matter of time before this man kills someone.'
For these offences the applicant was handed six month's probation at the Sunshine Magistrates' Court on 26 July 2004.
On 1 September 2005 the applicant, who was with a group of associates, again at the Watergardens Shopping Centre, set upon two male victims who were in the car park. During this altercation the applicant stabbed a male victim to the upper chest. At the Melbourne Children's Court on 5 February 2007, the applicant received a six month youth supervision order in relation to this offence.
It was noted in 2005 in the applicant's police file that he will continue to offend and possibly continue to seriously injure.
On 5 April 2006 the applicant was at the residential address of a number of known associates. Whilst at these premises, the applicant had an argument with another male. During this argument the applicant struck the victim to the head with an umbrella. As a result of this offence the applicant attended the Sunshine Magistrates' Court on 13 March 2007. Sazdov was not given a conviction, however he was ordered to undergo an anger management course.
I have liaised previously with a prosecution witness who has stated he will not give evidence against the applicant and his co‑accused as he is terrified for his own physical welfare. I believe that the applicant is an unacceptable risk with the likelihood of the applicant committing offences of a similar nature. If granted bail I believe the applicant would pose a threat to the community because of the violent nature of his previous actions."
In a well presented argument before me today, Mr Gwynn, of counsel, relied on eight matters in support of the application for bail. In summary they are (1) the alleged weakness of the Crown case; (2) delay; (3) ties to the jurisdiction; (4) the availability of a surety; (5) employment offers; (6) substantial family support; (7) the youth of the applicant; and (8) willingness to meet conditions. I will deal with these matters in order.
As to the weakness of the Crown case I note that in addition to the numerous statements in the exhibit to Mr Atkinson's affidavit there is a video available of the incident that occurred at the Kealba Shopping Centre and I am told by Mr Gwynn that it captures from two angles all or virtually everything that happened on that occasion. There is no doubt about the presence of the applicant at the scene or about the manner of his arrival with the other co‑accused in the car. Nor is there any doubt about his having personally smashed the front window of the car by jumping on the bonnet and striking it with the hockey stick.
However, Mr Gwynn submits that it was Kane Lunt who delivered the blows that proved to be fatal and that he did so with an axe (apparently the blunt side of the axe); and that Kane Lunt was not in possession of the axe when the youths left the car the first time and went over to the victims’ car. Apparently Kane Lunt went back to the alleged offenders’ car after a while to get the axe and then pulled his hood over his head to disguise himself before attacking Mr Tran.
The video apparently shows the applicant looking towards the car where Kane Lunt was leaning in through the broken window and attacking Doa Tran. That attack alone lasted 30 seconds, Mr Gwynn acknowledges.
The applicant, it is true, was on the far side of the car but nonetheless was looking towards it. The windows of the car were all smashed in and the occupants were making a substantial amount of noise which was captured on a recording. Mr Sazdov is very likely to have been able to hear the shouting and the pleas from the occupants of the car.
So there are at least two bases for a possible finding of guilt in relation to murder on the part of Mr Sazdov, namely pre-concert, and aiding and abetting or incitement and assistance.
I am not satisfied at this stage that the Crown case is weak on any of the charges. Of course the matter will be able to be assessed better after the committal hearing but at this stage I do not regard any weakness of the Crown case as forming in any way an unusual or special or exceptional circumstance in itself. Indeed I do not regard the description of the Crown case as weak as being an apt one.
I turn to delay. It is now some 10 months or so since the applicant was first taken into custody and it is of course regrettable that periods of that length are involved in matters of this kind but there are reasons that have been given for the time that has been required. There are five co‑accused, many victims, and the matter is a complex one. So I do not consider that the time that has been taken so far can be described as inordinate notwithstanding the unfortunate need to adjourn the committal hearing from December of this year to March of next year.
It is true that the applicant has not been in prison before, and it is unfortunate that a 20–year-old finds himself imprisoned for the first time in an adult prison, and with limited avenues for useful activity. I bear all of that in mind in assessing the case overall. But, as I say, I do not regard the time involved, at least until the time of the committal anyway, as being inordinate or in any way exceptional given the nature of the case.
The third matter is ties to the jurisdiction. The applicant lives with his mother and brother, and the mother has offered a surety secured on the house. I note those matters and I note that there is no suggestion of a flight risk in this case, but again those things in themselves are not exceptional or special.
As to the fourth matter – the availability of a surety - I acknowledge again that that has been offered, although I note that it was offered only today for the first time. There is no material before me as to the extent of the equity that might exist in the house but even assuming it is substantial, it does not amount to an exceptional or special circumstance in itself, although it is a factor that I do take into account in weighing up all matters as to whether this is an appropriate case for bail.
The fifth matter is employment offers. The affidavit material includes a letter from Epping Plant Hire stating that Mr Sazdov has a current position at that firm. The letter was dated March of this year. It is a very brief letter, although it does acknowledge an awareness of Mr Sazdov’s custodial circumstances. It is not stated what the position is, nor whether it is full‑time or part‑time, nor has the offer been updated since March 2008.
There are two letters from Tony's Painting Service, of December this year. One of them contains a good reference for Mr Sazdov in relation to his work as a casual employee doing painting for Tony's Painting Service between 2003 and 2005 and then again, from time to time, in 2006 and 2007; and one of the letters says that the firm would re‑employ Mr Sazdov after Christmas, although again it is not stated whether that would be casual or permanent, full‑time or part‑time. On the other hand I am told that Tony’s Painting Service is also aware of the custodial circumstances of Mr Sazdov at present.
I note those employment offers. They are not such as to be regarded as exceptional in themselves but again they are matters of some significance that I take into account in assessing the matter overall.
The sixth matter is substantial family support. I am told that the applicant's parents have split up but that he maintains some relationship with his father, although his father was not able to be with him here today. His mother and other relatives are here. I am told that his mother is employed full‑time. The applicant has a 17 year old brother but I have also been informed, without objection, today that the 17 year old brother was recently convicted of an offence arising out of the gatecrashing of a 16 year old’s birthday party, and was sentenced to a six month youth supervision order as a result of that. It is put that the applicant would, if released, return to live with his mother and brother. I note that the applicant was living in the same domestic circumstances at the time of allegedly committing the offences presently alleged against him and at the time of committing at least some of his prior offences. So whilst noting and taking some comfort from the fact that the applicant's mother and other relatives are supporting him and expressing hope that they will continue to support and guide him, I cannot regard that particular factor as exceptional in itself.
I turn to the seventh matter, the youth of the applicant. He was 20 years old at the time of the alleged offences. He is 21 now. As I have already mentioned, he has spent 10 months now in an adult prison, which is not desirable. I am told that he is an immature youth but the fact is that he has demonstrated a very, very concerning propensity for violence and he has had many chances to change his ways in that regard. He has been dealt with with exceptional leniency in the Children's Court previously for the prior offences which were detailed in the informant's report, the descriptions of which I have read out. I understand that the accuracy of those descriptions is uncontested.
The applicant has not shown any capacity yet to learn from his past mistakes and as the Crown pointed out to me today, on the very night in question there was a second episode involving a similar attack on another car containing a group of would‑be victims.
There has been nothing put to me that is special or unusual about the personal circumstances of the applicant that would tend to assist his claim for bail except for the very fact of his relative youth, and I note that he is somewhat older than some of the other individuals that were allegedly involved in this particular incident.
As I noted in determining the bail application in the matter of Clark this morning[2], in Maloney,[3] Vincent J, a most experienced judge, pointed out that it was not possible to identify in any general definition what factual situations constituted exceptional circumstances. His Honour stated:
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole the circumstances can be regarded as exceptional to the extent that taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
[2]In re Maria Christina Clark [2008] VSC 606 (24 December 2008).
[3]Unreported, 31 October 1990.
That passage was picked up and applied by Coldrey J in DPP v Cozzi[4].
[4][2005] VSC 195.
Bearing that test in mind and having considered other cases that have applied it, and having regard to all of the matters that I have referred to so far, I find nothing exceptional in any of the eight matters that have been relied upon in themselves; nor in combination do I see them as giving rise to exceptional circumstances that would justify the grant of bail in this very serious matter.
For good measure I will add I am not satisfied either that the applicant has shown cause why bail should be granted in respect of the offences other than the murder charge. Further, again for good measure, I am satisfied that the applicant represents an unacceptable risk of committing further offences and an unacceptable risk of endangering the safety and welfare of members of the public.
It is a case, in my view, somewhat like the matter of Johns[5], decided by Nettle J, which involved a similar analysis and a similar outcome. As in that case, the matter can of course be revisited after the committal when the factual circumstances will no doubt have been clarified further.
[5][2002] VSC 436.
For these reasons bail will be refused.
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