Re Tito
[2021] VSC 574
•10 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0229
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by STEPHEN TITO |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2021 |
DATE OF JUDGMENT: | 10 September 2021 |
CASE MAY BE CITED AS: | Re Tito |
MEDIUM NEUTRAL CITATION: | [2021] VSC 574 |
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CRIMINAL LAW — Application for bail — Charges of make threat to kill, intentionally cause injury, recklessly cause injury, assault — Family violence — Potential delay due to COVID-19 — Compelling reason established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) s 1B, s 3AAA, s 4AA, s 4C, s 4D, s 4E — Case cited: Rodgers v The Queen [2019] VSCA 214.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M White | Michael J. Gleeson & Associates |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail dated 30 August 2021 by Stephen Tito (‘the applicant’) for the offences of making a threat to kill, intentionally causing injury, recklessly causing injury and common law assault, the third and fourth charges being alternatives (‘the Informant Hondow matter’).
The applicant was placed under arrest in relation to those matters on 6 March 2021 and he has remained in custody since, having made two applications for bail to the Sunshine Magistrates’ Court on 30 March 2021 and 28 July 2021 in relation to which bail was refused.
At the time the applicant was charged with these offences he was subject to a summons for drink driving, driving while suspended and exceeding the prescribed concentration of alcohol within three hours of driving (‘the Informant Samuel matter’). That offending is alleged to have occurred on 2 December 2020 and that matter is next listed for mention at the Sunshine Magistrates’ Court on 13 September 2021.
The alleged offending
The complainant in this matter, Mr John Owani, is the partner of the applicant’s sister. The prosecution allege that on 5 March 2021 Mr Owani was at home with his partner and their three children when the applicant arrived at about 9.30pm. Mr Owani was lying on the couch when the applicant punched him to the head and body numerous times and then clutched him round the neck.
Mr Owani’s tooth was knocked out, another tooth was fractured, and his nose was broken. In the course of the attack the applicant said, ‘I will kill you today’. The applicant’s sister intervened, and Mr Owani left the house, and there is CCTV footage of his movements after leaving the house.
The next day the applicant presented himself at the Sunshine police station where he was arrested and made a no comment record of interview before being remanded in custody. As part of the background to the matter the applicant’s sister, Bibi, has consistently refused to provide a statement in relation to what occurred, and the applicant has instructed his solicitor that these matters will be contested.
The applicable legislation
I am required to have regard to the guiding principles set out in the Bail Act 1977 (Vic) (‘the Act’) in s 1B(1).[1] The applicant is accused of committing a Schedule 2 offence within the meaning of s 3 of the Act, that is making a threat to kill within a family violence context,[2] and bail must be refused unless the applicant satisfies the Court that a compelling reason exist that justifies the grant of bail.[3]
[1]The Bail Act 1977 (Vic) s 1B(2).
[2]Ibid, sch 2, item 7.
[3]Ibid, ss 4AA(3), 4C(1)-(2).
In considering whether a compelling reason exists, the Court is obliged to take into account all the relevant surrounding circumstances, including but not limited to those set out in s 3AAA of the Act.[4] The meaning of compelling reason is not defined in the Act; however, its meaning has been considered authoritatively by this Court on a number of occasions. The relevant principles were most significantly distilled by the Court of Appeal in Rodgers v The Queen[5] as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[6]
[4]Ibid s 4C(3).
[5][2019] VSCA 214 (Beach, Kaye and Ashley JJA).
[6]Ibid [43] (footnotes omitted).
If satisfied of the existence of a compelling reason, I must then consider whether, having regard to the surrounding circumstances, the respondent has established that the applicant poses an unacceptable risk.[7] In making that determination the Court must also consider whether there are any conditions of bail that may be imposed that mitigate the risk, so it is rendered not unacceptable.[8]
[7]The Bail Act 1977 (Vic) s 4E.
[8]Ibid, s 4E(3)(b).
The definition of family violence is wide and extends the definition of victim to include parties who are related by marriage, which includes parties who are in a marriage-like relationship. As this case involves family violence, s 5AAAA(1) of the Act is relevant, which requires me to enquire as to whether a family violence intervention order is in place, which it is in this case. The persons listed in that order as the affected family members are Mr Owani and his children, but I note not his partner (the applicant’s sister).
The family violence intervention order was granted on 9 March 2021 at the Sunshine Magistrates’ Court, with full no contact conditions with the exception to allow communication through a lawyer.
The applicant
The applicant is 33 and resides with his partner and three children, aged two months, five and eight, in Sunshine. The applicant is the father of the two-month-old baby.
Prior to his remand, the applicant’s partner, who gave evidence before me, confirmed that she relied upon his income and additional support raising the children but is now entirely dependent on welfare payments.
The applicant was previously employed as a labourer for a glazier and was in the process of completing his railway certification. Upon release from custody, he has been offered employment with a panel beater.
The applicant also has strong family and community support, particularly through his connections with the Sudanese community for which a reference was provided.
The applicant has a criminal history commencing in 2008. His relevant priors consist of:
(a) 5 November 2008: conviction and sentence of two months’ imprisonment wholly suspended for intentionally causing injury and affray.
(b) 20 August 2010: conviction and sentence of eight years and six months with a non-parole period of five years for manslaughter, having originally been sentenced to ten years but successfully appealed the sentence on 12 October 2012.
(c) 24 May 2018: conviction and sentence of 40 days’ imprisonment for affray and resisting an emergency worker on duty.
(d) 24 May 2018: convicted and sentenced of seven days’ imprisonment on the same for breaching his parole order due to the above further offending.
The breaching offences are said to have been committed in 2015 and I was informed by the applicant’s counsel that he was not dealt with for breach of his parole other than by the conviction to which I have just referred.
The applicant’s submissions
It was submitted on behalf of the applicant that the offending, although towards the lower end of offences of this kind, were towards the moderate to the high end of the scale of seriousness.
It had originally been submitted, on the basis of the instructions given by the applicant about his view of the facts, that there were arguments to be put about the strength of the prosecution case. That argument was not persisted with on the basis that there is no evidence of the applicant’s version actually before the Court. Nonetheless, the applicant simply has the right to contest these matters and to therefore have a contested hearing.
The weakness of the Crown case would only operate as a feature in his favour if it could be shown that the prosecution case was a weak or perhaps even extremely weak case, which is not the position here.
It is submitted that the applicant’s criminal history is limited, and that is true. It is, however, in relation to the use of violence, a serious criminal history. Although it was submitted that the applicant has not committed any offences whilst on bail or failed to answer bail, he has nonetheless, as a matter I am obliged to take into account, not kept the conditions of his parole.
The applicant has the strong support of his partner, Ms Noha Kowa, who gave evidence before me today. She also gave an undertaking to me that she would report any breach of bail. She is happy to have the applicant live with her and the children at the address of [redacted] and she confirmed that, as a matter of her knowledge, the applicant had been offered the employment to which I have already referred.
A major issue arises as to any delay that would occur. The matter is next listed on 6 December 2021 and it was thought by the parties that that was a listing for the contest hearing. According to the records of the Magistrates’ Court, the matter is listed for mention on that date, so a further date for contest hearing will have to be provided. Even if the matter resolved on that day, the applicant would, by then, have spent 275 days in custody by way of pre-sentence detention.
Although I am satisfied that it is likely that he could well receive, if convicted of these offences, a sentence greater than 275 days, it would nonetheless be a significant period for somebody to spend on remand. There is the likelihood of there being even a further period spent on remand in circumstances of the present COVID-19 pandemic, in relation to which this Court in particular has accepted that there are particular difficulties and disadvantages which arise for accused persons pursuant to that pandemic.
The applicant submits that, by the imposition of appropriate conditions, the applicant could be rendered a not unacceptable risk.
The respondent’s submissions
It was submitted on behalf of the respondent that it would be open for me to find that compelling reasons do exist, and the case proceeded on the basis that such reasons do exist and because principally of the question of delay, I am satisfied that compelling reasons do exist.
It was submitted on behalf of the respondent that this is, from the respondent’s point of view, a reasonably strong case, and it was further submitted that the applicant could well receive a term of imprisonment beyond the 275 days until December, and even any greater period that arose as a result.
It was submitted that the applicant was an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail. That assertion was made in light of the applicant’s violent criminal history and the relative seriousness of the allegations before the Court. It could be added to that the fact that the applicant was on summons for matters that involve not acting in accordance either with orders of the Court, or as the result of restrictions imposed by the operation of law, namely the suspension of his licence.
In accordance with the provisions of the Act, the views of Mr Owani have been provided and Mr Owani is opposed to the grant of bail and is in fear of the applicant to such a degree that he has established himself a new address, which means he is now living apart from his partner and his children as a direct result of these matters.
There is potential, it is submitted, for contact between the applicant and the complainant through the applicant’s sister, who is not the subject of the family violence intervention order.
I am satisfied in the circumstances, having already made it clear that I accept that compelling reasons exist, that the respondent has, in the whole of the circumstances, not demonstrated that the applicant is an unacceptable risk, and I will grant him bail.
That is not to say I do not think he is a risk. I will impose conditions including that he refrain from the use of alcohol during the period of his bail. It seems to me, giving rise to the matters for which he is on summons, there is potential concern about him driving a motor car which at the present time he is not entitled to do. As I understand the matter, he is under a period of suspension and that there is the risk of him drinking and driving.
Ruling
The Court is satisfied that compelling reasons exist to justify the grant of bail and it has not been shown that the applicant is an unacceptable risk, for the reasons announced this day and:
(a) that I received an undertaking from Ms Noha Kowa that she would report to the informant any breach of bail and I will arrange for her to be provided with a copy of this bail order.
(b) The applicant is subject to an interim family violence intervention order made at Sunshine Magistrates’ Court on 9 March 2021 in case No. M10472730.
It is not my practice to include as a condition the keeping of that order because the applicant is simply obliged as a matter of the operation of law to keep that order. Any contact with the complainant would in any event be a breach of one of the conditions, because he cannot contact any of the witnesses.
It follows from the nature of the order that he cannot have contact with his sister’s children, because they are the subject of the order as well, and he should understand that.
The Court orders that Stephen Tito be admitted to bail on his own undertaking on the following special conditions:
(a) he attend the Magistrates’ Court of Victoria at Sunshine on 6 December 2021 and then surrender himself and must not depart without the leave of the Court and if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at [redacted] in Victoria and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He abstain from the consumption of any alcohol.
(f) He provide a sample of his breath for testing if required to do so by any member of the Victoria Police.
(g) He not contact directly or indirectly any witness for the prosecution except the informant.
(h) He not leave the State of Victoria.
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