Re Tiba
[2015] VSC 304
•23 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0083
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by OMAR TIBA |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 June 2015 |
DATE OF JUDGMENT: | 23 June 2015 |
CASE MAY BE CITED AS: | Re Tiba |
MEDIUM NEUTRAL CITATION: | [2015] VSC 304 |
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CRIMINAL LAW – Bail – Show cause situation – Applicant charges with indictable offence alleged to have been committed while applicant at large awaiting trial for another indictable offence – Prior convictions for committing indictable offence while on bail, contravening a conduct condition of bail and failing to answer bail – Unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Kibel | James Kibel Australian legal practitioner for Victoria Police |
| For the Accused | Mr M Gumbleton | Tricarico & Marcevski Lawyers |
HIS HONOUR:
On 11 February 2015, Omar Tiba, the applicant, was arrested and charged with the following offences:
(a)one charge of possessing a drug of dependence, namely methamphetamine, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981;
(b)one charge of trafficking a drug of dependence, namely methamphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981;
(c)one charge of being a prohibited person, possessing a firearm, contrary to s 5(1) of the Firearms Act 1996;
(d)one charge of dealing with property, namely $2,418.10 in cash, suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act 1958; and
(e)two charges of resisting police, contrary to s 51 of the Summary Offences Act 1966.
The charges relate to events alleged to have occurred in early February 2015. The charges are currently listed for a contested hearing at Melbourne Magistrates’ Court on 6 October 2015.
The applicant was apprehended in respect of the current charges on 11 February of this year. A search of the applicant and the vehicle in which he was travelling at about the time of his arrest produced the .22 calibre handgun that is the subject of charge 3, together with eight rounds inside it; the cash that is the subject of charge 4; a total amount of methamphetamine of approximately 89 grams; and an ice pipe and numerous plastic resealable bags that contained 51 of the 89 grams of methamphetamine found.
The applicant was arrested at the scene of his apprehension and conveyed to the Melbourne West police station where a record of interview was conducted. The applicant answered either ‘no comment’ or ‘no’ to all questions and allegations put to him. The applicant was subsequently remanded in custody.
At the time of these alleged offences, the applicant was on bail for similar matters in relation to offending said to have taken place in July 2014. Those offences included charges relating to trafficking methylamphetamine and cannabis, theft of a motor vehicle, dealing with property suspected of being the proceeds of crime, possessing a controlled weapon and stating a false name.
On 2 October 2014 the applicant was granted bail in this Court in relation to this earlier offending. Bail was granted on condition that the applicant reside at Recover Oz in Box Hill (‘Recover Oz’); that the applicant not leave Recover Oz except in the company of an employee or nominee of Recover Oz; that the applicant follow all lawful directions of the director of Recover Oz; and that if there was any breach of these conditions, or the applicant left Recover Oz, or was found to be in possession of drugs, the director of Recover Oz was to immediately contact the officer-in-charge of the Box Hill police station.
On 18 May 2015, the July 2014 charges were dealt with at the Broadmeadows Magistrates’ Court. On that occasion, the applicant was convicted of possessing a drug of dependence, dealing with property suspected of being the proceeds of crime, possessing a controlled weapon without excuse, possessing a prohibited weapon without an exemption or approval, committing an indictable offence while on bail, contravening a conduct condition of bail and possessing cartridge ammunition without a licence or permit. The applicant was sentenced to a period of 190 days’ imprisonment, time served.
The applicant has previously applied for bail in respect of the charges he currently faces. Bail was refused in the Magistrates’ Court on 22 May 2015. He now applies to this Court for bail. His application was supported by the evidence of Mr Thompson of Recover Oz.
Pursuant to s 4(4)(a) of the Bail Act 1977, the applicant is required to show cause why his detention in custody is not justified. This is because the applicant has been charged with an indictable offence alleged to have been committed while he was at large awaiting trial for another indictable offence.
The applicant is also in a ‘show cause’ situation because he is charged with an offence under s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
In support of his application for bail, the applicant has tendered the report of a psychologist, Dr Amanda Nielsen, in which the opinion is expressed that the applicant suffers from an acquired brain injury predominately affecting his executive functions. This is said to be the result of a serious motor vehicle accident that occurred on 27 May 2011.
If bail is granted, it is proposed that the applicant continue to reside at Recover Oz. Recover Oz is a drug rehabilitation centre which, as I have said, is located in Box Hill. Further, the application for bail is made on the basis that the applicant’s brother, Hasheim Tiba, is prepared to provide a surety in the sum of $175,000. The surety sum would be raised by way of equity in a property in Dallas. A number of other conditions were proposed in a document handed up this morning.
In summary, the applicant relies upon the following matters, in combination, as demonstrating cause to be granted bail, and that any relevant risk is not an unacceptable one:
(a) the applicant is relatively young, being aged only 25 years;
(b)although the applicant has a prior criminal history, there is no history of trafficking in a drug of dependence or possessing firearms;
(c)delay (both to date and in the future);
(d)the applicant’s mental health;
(e)the availability of treatment at Recover Oz; and
(f)the fact that a surety in the amount of $175,000 is available.
The Crown opposes bail being granted on any conditions. Specifically, bail is opposed on the grounds that the applicant is said to be an unacceptable risk of committing further offences on bail and/or endangering the safety and welfare of members of the public. See s 4(2)(d)(i) of the Bail Act.
The applicant has convictions for committing an indictable offence while on bail, contravening a conduct condition of bail and failing to answer bail. He also has a conviction for failing to comply with an intensive correction order. It might be said that he is someone for whom court orders do not appear to have meant much in the past.
Notwithstanding Mr Gumbleton’s very able submissions and the matters that can be said in support of the applicant’s application for bail, in my view, having regard to the applicant’s history, the applicant is an unacceptable risk of committing further offences and/or endangering the safety or welfare of members of the public if he were to be released on bail — even with the bail conditions proposed, some of which have been imposed in the past without any great efficacy (for example, conditions 2 and 4 of the conditions imposed when bail was granted in this Court on 2 October 2014).
While delay might be a factor that, in combination with other factors, becomes significant if the applicant’s trial is delayed beyond October this year, it is not such a factor at the moment.
While the surety sum offered by the applicant’s brother may secure the applicant’s attendance at court in October later this year, having regard to the applicant’s history (and in particular his history in relation to bail matters) I am far from satisfied that, if released, the applicant would not offend while on bail and/or endanger the safety of members of the public.
Further, it may be correct to say, as was sworn by the applicant’s solicitor in the affidavit in support of this application, that the applicant has no history of possessing a firearm, his convictions for possessing a controlled weapon and a prohibited weapon, as well as cartridge ammunition, take some of the gloss off that proposition.
In the circumstances, the applicant has not shown cause why his detention in custody is not justified. Accordingly, his application for bail is refused.
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