Re Sefo
[2016] VSC 459
•4 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0102
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Joseph SEFO
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2016 |
DATE OF RULING: | 4 August 2016 |
CASE MAY BE CITED AS: | Re Sefo |
MEDIUM NEUTRAL CITATION: | [2016] VSC 459 |
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CRIMINAL LAW – Application for bail – Intentionally cause serious injury in circumstances of gross violence – Recklessly cause serious injury in circumstances of gross violence - Intentionally cause serious injury – Recklessly cause serious injury – Robbery – Prima facie entitlement to bail – Accused a New Zealand citizen - Strength of prosecution case - Bail granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S. Lacy | Doogue O’Brien George Defence Lawyers |
| For the Respondent | Mr B. Nibbs | Office of Public Prosecutions |
HIS HONOUR:
The applicant is charged with three counts of robbery, four counts of intentionally causing serious injury, intentionally causing serious injury in circumstances of gross violence, recklessly causing serious injury in circumstances of gross violence and recklessly causing serious injury.
The alleged offending is said to have occurred on 15 May 2016 in two separate episodes. I shall set out the alleged circumstances.
The first episode
On the evening of 14 May 2016, the applicant, with his two co-accused A & P, were at an informal rugby club party at a friend’s house in Melton. The co-accused, ‘A’, expressed a need for a new mobile phone and the three co-accused went to a laneway near a Melton nightclub. The victim (CV) to this incident entered the laneway to walk towards the nightclub. The applicant is said to have punched the victim to the jaw causing him to fall to the ground. The co-accused A is alleged to then have kicked the victim to the head whilst he was prone. The three accused are then alleged to have gone through the victim’s pockets stealing his iPhone 6, his wallet, house keys and $70 cash. The accused fled leaving the victim unconscious and bleeding. The victim was hospitalised. He suffered concussion and fractures to his cheek, jaw, chin and nose, requiring metal fixation. His injuries have yet to resolve to their pre-assault state.
The second episode
About two hours later, at 3.20am, the three accused were driving in the Melton South area when they observed two brothers walking home after a night out
Co-accused A parked the vehicle. All three co-accused approached the two men. One co-accused asked for a cigarette, which was supplied. It is alleged that A then punched one of the men (WM) from behind. The other man, (FM), endeavoured to defend his brother. He was punched in the stomach, dragged to the ground and punched by all three men. WM, having partially recovered, yelled at the accused men. Two of the accused (it is unclear which) then set about WM punching him to the ground and then further punching and kicking him. The third of the accused continued to punch FM to the point of unconsciousness. Mobile phones and personal possessions were stolen from both victims. Both victims to this second assault suffered cuts, bruises and abrasions.
The applicant was arrested at his home with P (who is his first cousin, once removed) at 6.30am on 19 May 2016. A search of the house revealed CV’s empty wallet and mobile phone in the applicant’s bedroom. In P’s bedroom, WM’s mobile phone was located. When interviewed, the applicant made full admissions to the offending. The applicant was remanded in custody. He has currently been imprisoned for about two and a half months. Bail was refused at the Melbourne Magistrates’ Court on 5 July 2016.
Mr Nibbs, for the prosecution, contended that this was serious offending, and I agree with him. He also contended that this was a strong Crown case. In light of the fact that the applicant has admitted participation in both episodes, I also agree with that submission.
It is common ground that the applicant is prima facie entitled to bail (s 4(1) Bail Act 1977). The applicant relies on this statutory entitlement together with the following combination of factors:
(a) His mother and four siblings all reside together in Melton South.
(b) He is of a Samoan background but a New Zealand citizen. He arrived in Australia in November 2015. He would be prepared to surrender his passport and report to police to ameliorate any perceived risk of flight.
(c) He has no prior adverse history of compliance with court orders.
(d) He is reasonably intelligent, did quite well at school, and has undertaken studies preliminary to trade education in New Zealand.
(e) Up until a week before his arrest he was employed with a removalist company.
(f) The applicant has been assessed as suitable for bail by CISP with a recommendation for Level 2 Intermediate Case Management. Should bail be grated, a referral for a comprehensive Alcohol and Other Drug (‘AOD’) assessment with an AOD worker has been arraigned by the CISP Remand Outreach Pilot (‘CROP’).
Bail was refused in the Magistrates’ Court because her Honour assessed the applicant as an unacceptable risk of failing to answer bail, committing further offences whilst on bail, and endangering the safety or welfare of members of the public. The Crown opposes bail in this application and contends these same risks cannot be managed to an acceptable extent. The onus rests with the prosecution to establish this proposition.
The prosecution point, essentially, to the nature of the offending itself to make good the ‘danger to the public/risk of further offending’ ground. The applicant’s New Zealand citizenship, his recent arrival to this country, and the fact that his father remains in New Zealand, together with the seriousness of the offending and the strength of the Crown case, are contended to make good the ‘flight’ risk argument.
My assessment of the risks presented by the applicant is made following consideration of the imposition of conditions designed, if possible, to ameliorate those risks. In my view, the prosecution failed to demonstrate the risks that the applicant undoubtedly presents cannot be ameliorated to an acceptable level by the imposition of conditions.
I consider that a condition requiring the surrender of all passports held by the applicant, together with a twice-weekly reporting condition and one that prohibits him from approaching an international point of departure, is sufficient to ameliorate the risk of flight to an acceptable level. The fact that if the applicant were to take flight it would likely be to New Zealand is a factor that I take into account. Were the applicant a risk of flight to some other part of the world with whom Australia does not have an extradition treaty, it might be that I would assess this risk differently.
Insofar as the public safety/further offending risks are concerned, they are really the same risk. As I have said, the prosecution rely upon the seriousness of the offending and the strength of the Crown case to make good its contention that the applicant presents these risks.
Given the applicant’s age and lack of prior criminal history, I doubt that the prosecution has established these risks, however out of prudence I propose to impose a ‘no alcohol’ condition. These offences occurred some hours after a rugby game. The applicant managed to inform the CISP assessor that, while not normally a beer drinker, he would consume up to a slab of beer after the finalisation of a rugby match. I will incorporate the CROP AOD proposal into the conditions. I will also require the applicant to live at home with his family. I will impose non-association conditions concerning his co-accused and any prosecution witnesses, save for the informant. It follows that I will grant bail on the applicant’s own undertaking with those special conditions.
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