Re Stephan
[2022] VSC 130
•16 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0036
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an application for bail by ROBERT STEPHAN
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 March 2022 |
DATE OF JUDGMENT: | 16 March 2022 |
CASE MAY BE CITED AS: | Re Stephan |
MEDIUM NEUTRAL CITATION: | [2022] VSC 130 |
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CRIMINAL LAW – Bail application – Compelling reason test – Bail opposed – Unacceptable risk – Applicant has relevant prior convictions involving use of a firearm – Alleged offending involves use of a firearm – Delay – Availability of electronic monitoring by private company – Whether proposed conditions sufficient to ameliorate risk – Compelling reason established however the applicant is an unacceptable risk of committing an offence whilst on bail, and endangering the safety and welfare of any person – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4C, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Milides Lawyers |
| For the Respondent | Mr Z Petric | Office of Public Prosecutions |
HER HONOUR:
The applicant applies for bail on charges of kidnapping, blackmail, intentionally causing injury, threat to kill, threat to inflict serious injury (alternative charge), assault (alternative charge), reckless conduct endangering life, unlawful discharge of a firearm at premises and damaging property.
The alleged offending
On 13 or 14 May 2021, Brodie Reichle (‘Reichle’) arranged for Raymond Stephan (‘Raymond’) to supply cannabis to a third party. Raymond attended as arranged, and was set upon. His cash, cannabis and personal belongings valued at $20,000 were stolen. Raymond, who is the applicant’s son, blamed Reichle for setting him up. Reichle agreed to meet Raymond at an address in Coburg North on 17 May 2021.
Incident One – “the shooting incident”
On 17 May 2021, the applicant and Raymond exchanged text messages and arranged to attend at an address in Truganina. That address was the residence of Dion Kaa-Weeds (‘Kaa-Weeds’), a friend of Reichle’s. Also residing at that address was Kaa-Weeds’ father and his eight year old sister. At around 8:30pm, the applicant, Raymond, Wayne Favaloro (‘W.Favaloro’) and Ricky Favaloro (‘R.Favaloro’) travelled to the address in the applicant’s Holden Commodore. One of the males exited the car and fired three shots into the garage door. The three shots penetrated the steel roller door. One bullet ricocheted off the ceiling into the floor. The other two bullets went through the internal plaster walls at the end of the garage, and lodged in the far bedroom wall of Kaa-Weed’s sister. She was in another room at the time.
Incident Two – “the kidnapping incident”
The four offenders left in the Holden Commodore. Kaa-Weeds messaged Reichle and told him what had occurred, and Reichle messaged Raymond and arranged to meet him at the Coburg North address. The applicant, Raymond and R.Favaloro travelled in the Holden Commodore to the address. W.Favaloro and a fifth unknown male travelled in another vehicle. All five males exited the vehicle to speak to Reichle, and after a short conversation, Reichle was forced into the applicant’s Holden Commodore with the applicant driving, Raymond in the passenger seat, and R.Favaloro and Reichle in the rear seat. R.Favaloro was wearing knuckledusters on his right hand.
Reichle was driven around and threatened regarding the “set up”. The applicant made a number of threats, including that Reichle did not know what family he had “fucked with”, he had just got out of jail and he was not afraid to go back. He told Reichle he had to pay them back at the rate of $500 per week, or he would cut his tongue out and kill him. R.Favaloro continually punched Reichle using the knuckle dusters, and at one point produced a hunting knife and threatened to stab him. After about an hour, Reichle was dropped at the Emergency entrance of the Northern Hospital Epping. He was warned by the applicant not to speak to police and not to forget to pay his debt.
Reichle walked into the hospital and his injuries were attended to. He suffered several lacerations, concussion and swelling. On 20 May 2021, Reichle contacted police and told them he had information about the shooting at Truganina. He subsequently made a statement to police on 22 May 2021.
The applicant was arrested on 1 June 2021 and interviewed. He denied being in Truganina on 17 May or having any knowledge of the alleged offending. He admitted the Holden Commodore in the hospital CCTV footage was his vehicle, but denied he was driving, and suggested that Raymond may have borrowed the vehicle on 17 May. He also stated that he did not know Ricky or Wayne Favaloro. He was charged and remanded into custody.
Procedural history
The applicant, unrepresented, was refused bail on 1 June 2021 at the Melbourne Magistrates’ Court. The applicant, represented, made two further bail applications. He was refused bail at the Magistrates’ Court on 9 August 2021, and again on 10 December 2021.
The applicant filed an application for bail in this Court on 17 February 2022.
The applicant’s matter is next listed for a two-day contested committal hearing on 28 April 2022. He has no other outstanding matters.
The legislation
Kidnapping is a Schedule 2 offence as defined in the Bail Act 1977 (‘the Act’). Bail must be refused unless the applicant satisfies the Court that a compelling reason exists that justifies the grant of bail.[1]
[1]Bail Act 1977 sch 2 item 21. Any indictable offence in the course of committing which the accused, or any person involved in the commission of the offence, is alleged to have used or threatened to use a firearm is also a Schedule 2 of offence – see sch 2 item 23.
I am required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act.
In considering whether a compelling reason exists, I must take into account the surrounding circumstances, including, but not limited to, the matters set out in s 3AAA(1) of the Act.
If I am satisfied that a compelling reason exists that justifies the grant of bail, I must then apply the unacceptable risk test.[2] I must refuse bail if I am satisfied that there is a risk of the kind set out in s 4E(1)(a) of the Act. I must also be satisfied the risk is an unacceptable risk.[3]
[2]Ibid s 4D(1).
[3]Ibid s 4D(1)(b).
The respondent bears the burden of proving both the existence of the risk, and that the risk is unacceptable.[4]
[4]Ibid s 4D(2).
Co-accused
Raymond was arrested on 1 June 2021. W.Favaloro and R.Favaloro were arrested on 11 June 2021.
R.Favaloro was granted police bail on 11 June 2021. He is 22 years old with a single prior appearance for driving offences, for which he received an adjourned undertaking.
Raymond and W.Favaloro were granted bail at the Melbourne Magistrates’ Court on 1 July 2021.
Raymond is 22 years old. He has a single prior appearance for charges of traffic methamphetamine, possess a prohibited weapon, take something into a prison without authorisation and drive whilst suspended. On 28 October 2018, he was arrested and charged with attempting to smuggle over 20 grams of methylamphetamine into Barwon prison, said to be for the applicant. He received a without conviction aggregate fine.
W.Favaloro is R.Favaloro’s father. He has a short criminal history. His most recent and most serious prior conviction was in 2008 for intentionally causing serious injury. He was dealt with in the County Court and received a two year Community Correction Order (CCO).
The applicant
The applicant is 48 years old. His parents migrated to Australia from Egypt in the early 1970s, and he was born in Melbourne. He reports an unremarkable childhood and developmental history, however his family were significantly traumatised following the suicide of the applicant’s brother when the applicant was 17. The applicant’s father suffered a breakdown as a result. The applicant assisted in his father’s care, before it became necessary to move him to a nursing home.
The applicant attended school until Year 11. He then commenced an apprenticeship and attained a Certificate IV in motor mechanics. He worked at Toyota for seven years, before opening his own mechanics business. The applicant’s business struggled in late 2013 due to financial pressures, and failed in 2014 after he was remanded in custody. At the time of his arrest, he was working as a mechanic four days per week, and living with and caring for his mother.
The applicant’s father had been suffering dementia and residing in a nursing home for some years. The applicant’s father passed away on 27 May 2021 (five days prior to the applicant’s arrest), and the applicant was unable to attend his father’s funeral due to being in police custody.
The applicant has three children with his former partner – the co-accused Raymond, and two daughters aged 17 and 15. The children reside with their mother. He reports being on amicable terms with his ex-partner, and remains in contact with his children.
The applicant reports being diagnosed with depression and anxiety at the age of 38, with a history of panic attacks. He continues to be prescribed anti-depressants whilst in custody. The applicant has a history of drug use. According to the letter from Amanda Brown, this was limited to experimenting with cocaine, methamphetamine and cannabis, and he “significantly denied” using these drugs in a systemic manner.
Criminal history
Prior to 2015, the applicant had a minor criminal history for charges of possess cannabis, possess a prohibited weapon without approval and attempt to obtain property by deception. He received adjourned undertakings and small fines.
On 14 February 2014 the applicant committed an armed robbery at the business address of a person who owed him money. The applicant attended in company, produced a semi-automatic pistol and pushed it into the victim’s temple, demanding he pay the money owed. The applicant tried to fire the pistol at the wall, but it did not discharge, and also pointed the pistol at the head of a second victim. The applicant pleaded guilty and was sentenced in the County Court on 1 September 2015. He received 725 days’ imprisonment and an 18 month CCO.
Whilst on bail for the armed robbery, the applicant, again in company, attended at the home of another person with whom he had a grievance. He took a loaded .32 pistol to the victim’s home, approached him, and said, “You want to disrespect us?”. He subsequently shot the victim in the hip at close range, whilst the victim was standing in his doorway. In 2016, the applicant was convicted by a jury of intentionally causing serious injury. He was sentenced to five years and six months’ imprisonment with a non-parole period of three years and six months.
The applicant was simultaneously released on parole and a CCO on 30 January 2020. He breached both through non-compliance, and returned to custody on 14 May 2020. He was again released on parole on 16 February 2021. His parole period ended on 22 April 2021, shortly before this alleged offending.
The informant’s evidence
The informant addressed the proposal that the applicant wear an electronic monitoring device (‘EMD’), supplied by a private company. She said this did not, in her view, reduce the risk of the applicant reoffending. She said he is not a flight risk, and his offending is committed locally. He could also remove the bracelet in any event.
In cross-examination, she agreed the ability to know where the applicant is at any given time provides a fairly significant degree of police supervision, but said it would not deter this applicant from offending. She accepted it would make checking curfew compliance easier. She agreed there were no witnesses to the shooting and police could not say who the shooter was.
The applicant’s submissions
The applicant relies on a combination of factors to establish a compelling reason:
· Strength of the prosecution case – the applicant submits there are triable issues with respect to the prosecution case. As to the first incident, there is a lack of evidence identifying the applicant’s vehicle at the scene, no evidence as to who fired the weapon and no evidence of an agreement that it be fired. As to the second incident, the credibility of the complainant Reichle will be in issue, and his account is contested and largely uncorroborated.
· Criminal history and nature of charges– it is conceded that the applicant has priors for serious offences, and the alleged offending is serious.
· Accommodation and carer responsibilities – the applicant proposes to reside with his elderly mother, Mary Stephan, in Mill Park. It is intended that the applicant will provide care to his mother, who suffers from schizoaffective disorder, psychosis and diabetes.
· Ties to the jurisdiction – it is submitted that the applicant has significant ties to the jurisdiction, including his mother and three children.
· Surety – Ms Maalouf, the applicant’s maternal aunt, is prepared to post a surety of $5,000. Whilst this is a modest amount, it represents her life savings and she lives in rental accommodation.
· Employment – the applicant has full-time employment available to him as a mechanic, working for Marc Di Fabio of Northern EFI and Mechanical. Mr Di Fabio has been friends with the applicant for 15 years, and the applicant has previously worked for him, including during a period when the applicant was on parole. He describes the applicant’s positive work ethic and diligence in attending parole appointments during work hours.
· Availability of treatment – it is proposed that the applicant will commence counselling sessions with drug and alcohol counsellor, Amanda Brown, if released on bail. This will include weekly supervised urine screens, counselling and treatment. Whilst the applicant does not have an acute drug problem, the supervision, support and guidance of Ms Brown will be a significant protective factor and provide the applicant with greater stability in the community.
· Delay – the applicant submits that he will experience significant delay in the finalisation of his matter. He has already spent nine months in custody, and on a “best case” scenario, a trial date will not be before late 2023, but more realistically in the first half of 2024.
· COVID-19 impact on custodial conditions – it is submitted that the applicant has experienced particularly onerous conditions in custody due to the COVID-19 pandemic, including multiple lockdowns and no in-person visits or video conferences since his remand.
· Parity – the application of the parity principal was raised in written material, as the co-accused are on bail. However, this was not pursued at the hearing given the marked differences in antecedents between the applicant and the co-accused.
· Electronic monitoring – the applicant will engage Attenti Australia (‘Attenti’) and have an ankle-bracelet EMD fitted. The applicant’s family has raised the $25,000 for the cost of the EMD. The EMD uses GPS technology. It will continually monitor the applicant’s movements and may be programmed to issue alerts if the applicant attends a certain location, or leaves home outside of curfew hours. Attenti can arrange for the applicant to be fitted with the EMD prior to, or post, release from custody. If the device detects a breach of the applicant’s bail conditions, an automatic violation notice will be sent to the informant within 20 seconds.
The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of committing further offences whilst on bail, or endangering the welfare and safety of any person. The applicant submits that any risk can be rendered acceptable through the imposition of stringent conditions, including a fixed residence, electronic monitoring, reporting, a curfew, provision of his mobile number to the informant, not contacting any prosecution witnesses or co-accused (other than his son), attending counselling and providing weekly supervised urine screenings.
The applicant emphasised the continued relevance of delay when assessing whether any risk is unacceptable. Further, there are substantial issues to be tried and the Act recognises the importance of the presumption of innocence and the right to liberty. The prospect that the applicant may spend three years in custody before he is able to defend himself at trial is not one that should be countenanced lightly.
The applicant submits that no threat has been made to the alleged complainant, despite the co-accused being on bail. Further, a condition may be imposed preventing the applicant entering certain suburbs or areas, and the EMD can be configured so as to alert the Informant if that occurs.
The respondent’s submissions
The respondent submits that a compelling reason has not been shown, and even if the applicant clears that hurdle, he poses an unacceptable risk of endangering the safety or welfare of any person; and/or committing an offence whilst on bail. The respondent relies on the following factors:
· Strength of the prosecution case – the prosecution case on the first incident is circumstantial, but the evidence against the applicant is strong. The applicant had a motive to commit the alleged offending, as he believed that Kaa-Weeds orchestrated the robbery of his son. The respondent relies upon the text message exchange between the applicant and Raymond naming Kaa-Weeds’ address, and the location of all offenders’ mobile phones at the time of the alleged offending. As to the second incident, Reichle has made a statement and clearly implicates the applicant.
· Previous breach of court orders – the applicant has previously breached parole and a CCO by failing urine screening tests, resulting in the cancellation of parole and re-sentencing on the CCO matters. Weekly urine screening tests, as proposed by the applicant, are not adequate motivation for the applicant to comply with bail.
· Family support and accommodation – the respondent submits the proposal that the applicant reside at his mother’s address is unsuitable, as he was residing there at the time of the alleged offending. Due to the applicant’s mother’s medical conditions, the applicant would not be adequately supervised if released on bail to this address. The applicant’s family is a factor which increases his risk, as his son is a co-accused and a contributing factor to this offending.
· Carer responsibilities – in response to the applicant’s assertion that he was previously the registered carer of his mother, the respondent highlights that the applicant was released from custody only three months prior to the alleged offending. His father had been in a nursing home prior to his death, so a person other than the applicant has been largely caring for his mother over the past few years.
· Complainants’ views – the complainants are in fear of the applicant. Police hold particular concerns for the safety of Reichle. The respondent submits that the applicant may interfere with Reichle if released on bail, as he stated after his record of interview, “[t]rust me, nobody will be getting up in court to give evidence against me”.
· Electronic monitoring – the respondent submits that requiring the applicant to wear an EMD is not “foolproof”, and still requires follow-up and police resources to take action on the breach. There are also limitations; the data transmission relies on the technology functioning successfully, and the device can be removed.
The respondent submits that the seriousness of the alleged offending, and the applicant’s history of committing violent offences, are indicative of the danger posed to the community if he is released on bail. Police hold ongoing concerns for the safety of the community, as the firearm used in the alleged offending has not been recovered, and the informant believes the applicant will have access to it if released on bail.
The respondent argues that the applicant has shown a pattern of disregard for court orders, having previously breached parole and a CCO, and committed serious offences whilst on bail. The respondent further asserts that the applicant is alleged to have trafficked drugs in the past, including in prison, and has known association with organised crime.
Analysis
Compelling reason
The principles to be applied when considering the compelling reason test are conveniently summarised by the Court of Appeal in Rodgers v The Queen.[5] For an applicant to succeed, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified. It is not necessary to show a reason which is irresistible or exceptional. A compelling reason is one which is forceful, convincing and “difficult to resist”.[6]
[5][2019] VSCA 214, [43].
[6]Re Alsulayhim [2018] VSC 570, [27]-[28] (Beach JA).
The applicant has been on remand since June 2021. Assuming his committal proceeds as scheduled, it is unlikely he will stand trial before the very end of 2023 on a “best case” scenario, and any trial may not be until early 2024. No question arises here as to that period of time exceeding any time he might receive by way of sentence if convicted of these offences, but the delay is nonetheless very significant.
In my view, despite the gravity of the alleged offending and the likely sentence to be imposed if the applicant is convicted, a delay of two and a half or three years between charge and trial remains very substantial. The fact that such delays are becoming common does not make them any less troubling. Further, conditions in custody continue to be more onerous due to COVID-19. More recently, the spread of COVID-19 among both prisoners and staff has led to greater lockdowns and cessation of visits. Restrictions may have eased at times, but overall conditions on remand remain adversely impacted by COVID-19, and prisoners must endure less freedom within the prison system, and less access to friends and family.
I am satisfied that delay, together with the more onerous conditions experienced on remand due to COVID-19, provide a compelling reason justifying the grant of bail.
I turn now to the question of unacceptable risk.
Unacceptable risk
In applying this test, I must again take into account the guiding principles, the surrounding circumstances in s 3AAA of the Act, and consider whether there are any conditions of bail that may be imposed which would mitigate the risk to an acceptable level.[7]
[7]Bail Act 1977, s 4E(3).
I acknowledge the applicant contests the charges and the allegations are unproven. However, I am required to take into account the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. The alleged offending is serious and violent. A firearm was discharged into the garage of a residential house, with no regard for innocent people, including children, who might be inside. The applicant then went on to kidnap and threaten to kill another person. All offences were committed in company, and the applicant was the only offender with a serious criminal history.
The prosecution case on the “shooting incident” is circumstantial but not weak. The text messages between the applicant and Raymond, naming the Truganina address a matter of hours before the shooting, are incriminating and show a degree of planning. CCTV footage captures muzzle flash and a silver Holden Commodore, albeit not the registration plate. There is also the mobile phone evidence relevant to location, and evidence of motive provided by Reichle. Reichle identifies the applicant and provides evidence of his role in the offending against him, and the applicant’s car registration is visible on CCTV footage when Reichle is dropped at the hospital. I accept that much will turn on a jury’s assessment of Reichle, and there are issues to be tried between the parties. However, it is a reasonable prosecution case.
In my view, given his history, there is a risk of the applicant committing further offences whilst on bail, and a risk of him endangering the safety and welfare of any person. The key questions are whether the risk is unacceptable, and whether there are any conditions that may be imposed to mitigate the risk to an acceptable level. Those questions must be answered in the context of all the circumstances of the case.
Delay is relevant to an assessment of unacceptable risk. As stated by Kellam J in Mokbel v DPP (No 3),[8] the issue of detention by reason of unacceptable risk must be balanced with the likelihood of an accused being tried in the near future. It is necessary to consider when the trial date is, and whether the date has some certainty. Here, all that can be said is that a trial is very unlikely to be before late 2023 at the earliest, and may not be until 2024. Substantial delay combined with uncertainty is a relevant circumstance when determining the question of whether any risk is unacceptable. An actual or anticipated delay may be of such a magnitude that risks which would, in other circumstances, be unacceptable may properly be viewed as acceptable.[9]
[8][2002] VSC 393, [13].
[9]Barbaro v DPP (Cth) & Anor (2009) 20 VR 717, [41] (Maxwell P, Vincent and Kellam JJA).
The applicant was residing with his mother at the time of this alleged offending, and his mother is elderly and requires care. She is not able to supervise the applicant. The proposed address, being that the applicant reside with his mother, is not unsuitable but does little to ameliorate risk.
The applicant’s father was suffering dementia and in a nursing home at the time the applicant was sentenced in September 2015. Given the length of time the applicant has spent in custody, his mother must have been living apart from her husband, and cared for by others, for most of the last six and a half years. The applicant was living with and caring for his mother at the time of this alleged offending, however her care does not depend on him. I accept he again intends to live with and care for his mother, particularly given the death of his father a week after this alleged offending, however I do not find this intention meaningfully reduces his risk of reoffending.
The material as to the applicant’s history of drug use is somewhat inconsistent. However what is clear is that there is no suggestion this alleged offending, or past serious offending, is linked to drug use. The CCO breach report notes “the absence of significant substance misuse from [the applicant’s] offence pathway”. Whilst undergoing treatment may provide the applicant with more stability in the community, in the most general sense, it is difficult to see how drug treatment and counselling meaningfully ameliorates risk in this case. Ms Brown, who is neither psychologist nor psychiatrist, says she will “encourage” the applicant to undergo psychological treatment, however he may simply decline.
The applicant was employed with Mr Di Fabio at the time of this alleged offending, and had been whilst on parole. Mr Di Fabio remains supportive, and will employ the applicant every day he can to assist him going forward. However the applicant had that employment, support and friendship when he committed these alleged offences. This casts doubt on the capacity of employment to reduce risk.
The proposed surety is very modest, given the seriousness of the offending. There was no evidence before me as to the relationship between the applicant and his aunt. Even if they are close, I find it doubtful that the applicant would be significantly deterred from offending by the fact his aunt may lose $5,000.
I turn to the availability of an EMD, managed by Attenti, as a means of reducing risk. I accept the contents of the affidavit of Laura Windsor, which were not challenged. Attenti is a private company. The applicant would be their client, however Attenti considers its obligation would be to the Court, and to the authorities, in providing monitoring.
This is not a case where the alleged risk is flight. Nor is it a case where there is one particular place or address that the person is at risk of attending, and an EMD could alert authorities if the wearer went inside a specified radius protecting that particular place. In such situations, an EMD may be capable of materially contributing to the reduction of risk, although it would depend very much on the facts of the particular case.[10]
[10]I note that in Re Biba [2020] VSC 536, where the alleged risk was flight, an EMD was not considered enough to reduce the risk of the applicant absconding to an acceptable level.
I accept the proposition that requiring the applicant to wear an EMD would go some way to reducing risk. For example, it would assist police to monitor compliance with a curfew or an exclusion zone. However, an EMD would do little to reduce the risk of the applicant obtaining a firearm, for example. A firearm could be obtained anytime and anywhere. The alleged offending here commenced between 8:00pm and 9:00pm, and a curfew will not meaningfully reduce the risk of the applicant reoffending in any event.
The applicant submits an EMD would have a deterrent effect, as police will have access to where he is at any given time. I accept this is a significant intrusion into his privacy and would likely have some deterrent effect. However, police will not know what he is doing, or who he is meeting, at any given location. The signal may be lost at times, for example if the applicant entered an underground carpark. The applicant will also know what times or locations will trigger a notification, and in that way may avoid any trigger. In the circumstances of this application, an EMD is limited in what it can achieve by way of reduction of risk. It is also capable of being interfered with or removed, and whilst that would trigger a notification, the whereabouts of the applicant once it is removed would be unknown.
It was the applicant personally who issued the threat to Reichle, and Reichle is due to give evidence in approximately seven weeks’ time. In my view, given the alleged threats made by the applicant and the importance of Reichle’s evidence to the prosecution case, there is a risk that the applicant will seek to interfere with Reichle. However this is speculative, and I note the applicant has no prior convictions for interfering with or attempting to interfere with witnesses.
I treat with caution the assertion, made by the respondent, that the applicant has been a suspect in other matters, is a known drug dealer and has links to organised crime. No meaningful evidence of any of these matters was tendered, and I place little weight on such assertions. The applicant has no prior convictions for drug trafficking.
The applicant has a history of non-compliance with both parole and a CCO. He has also previously offended whilst on bail, although he was not charged with committing an indictable offence whilst on bail. To his credit, he did successfully complete his most recent three month parole period. However, this alleged offending occurred less than a month later. Since being jailed in 2015, the applicant has not demonstrated any sustained ability to remain in the community offence-free, comply with court orders or stay away from firearms.
The firearm used in this alleged offending has not been recovered. The applicant, unlike the co-offenders, has a history of both threatening persons with a loaded firearm, and actually shooting someone, as a means of settling grievances. Firearms threaten the peace and safety of the community. As this alleged offending demonstrates, innocent people are put at serious risk by firearms being discharged into private dwellings.
The question of whether a risk is unacceptable involves balancing competing considerations. Whilst not capable of precise definition, the test of whether a risk is unacceptable must be sufficiently high to justify the resulting restriction of liberty. Taking into account all matters, including those favourable to the applicant, together with the proposed stringent conditions, I am nonetheless satisfied on balance that the applicant represents an unacceptable risk of committing further offences, and endangering the safety or welfare of any person, if released onto bail.
Conclusion
The Court is satisfied that a compelling reason is established that justifies the grant of bail. However, it has been shown that the applicant is an unacceptable risk of committing further offences on bail, and endangering the safety and welfare of any person.
Bail is therefore refused.
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