Re Tofaris
[2021] VSC 249
•12 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0101
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by NICHOLAS TOFARIS |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2021 |
DATE OF JUDGMENT: | 12 May 2021 |
CASE MAY BE CITED AS: | Re Tofaris |
MEDIUM NEUTRAL CITATION: | [2021] VSC 249 |
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CRIMINAL LAW – Application for bail – Charges of extortion and false imprisonment – Potential delay of three years – Availability of surety – Health concerns while in custody – Impact of continued incarceration on applicant’s business – Compelling reasons established – Unacceptable risk not demonstrated – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4C, 4D, 4E and 5 – ReCeylan [2018] VSC 361.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Jason Gullaci | Tony Hargraves & Partners |
| For the Respondent | Ms Jelena Malobabic | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Nicholas Tofaris (‘the applicant’). On 22 April 2021 he was charged with the offences of:
(a) extortion with a threat to injure;[1]
[1]Contrary to s 27(b) of the Crimes Act 1958 (Vic)
(b) false imprisonment (common law);[2]
[2]Contrary to the common law
(c) recklessly causing injury;[3]
[3]Contrary to s 18 of the Crimes Act 1958 (Vic)
(d) making a threat to inflict serious injury;[4]
[4]Contrary to s 21 of the Crimes Act 1958 (Vic)
(e) making a threat to kill;[5]
[5]Contrary to s 27(b) of the Crimes Act 1958 (Vic)
(f) unlawful assault;[6]
(g) possessing a prohibited weapon without an exemption or approval;[7] and
(h) possessing methylamphetamine.[8]
[6]Contrary to s 23 of the Summary Offences Act 1966 (Vic)
[7]Contrary to s 5AA of the Control of Weapons Act 1990 (Vic)
[8]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)
The applicant was refused bail on 23 April 2021 at the Melbourne Magistrates’ Court (Bail and Remand Court) on the basis that he failed to show a compelling reason why his detention is not justified. He was also found to be an unacceptable risk of each of the matters set out in s 4E(1)(a) of the Bail Act 1977 (Vic) (the ‘Act’). The matter is next listed on 19 July 2021 at the Melbourne Magistrates’ Court for committal case conference and committal mention.
It is appropriate to mention at this stage that Mr Gullaci of counsel, who appeared for the applicant on the hearing of the application, indicated that the matter may well be capable of resolution and conceded that his client may have to accept some criminal responsibility for aspects of the allegations.
The alleged offending
The complainant in this matter is a former business associate of the applicant. At the time of the alleged offending, the complainant was residing with two of the co-accused, Sama Mirzaagha and Joel Farmer, in an apartment in Southbank. Andrew Garas, a third co-accused, is an associate of Mr Mirzaagha.
The following summary of the allegations is based on the summary of offending provided in the informant’s report.
Between 21 March and 15 April 2021, it is alleged that the applicant and co-accused held the complainant against his will at the Southbank apartment at which he lived. During that period of more than three weeks, they allegedly assaulted and threatened to harm and kill the complainant. The complainant was also allegedly forced to contact his parents, who reside in Queensland, to arrange for the transfer of money to the applicant’s bank account and money was transferred. These events are said to have occurred in the settling of purported debt owed by the complainant due either to failed business ventures or drug related matters.
The complainant’s allegations include the following:
(a) On 22 March 2021, Mr Garas took out a handgun that was tucked into his waistband, before stating, ‘If you don't get the money, I’ll put one in ya.’
(b) On 27 March 2021, the applicant hit the complainant’s head on a table twice, causing his nose to bleed; said to the complainant, ‘Let’s see how fast you mum gets you 220k when I start hacking your legs off’; and said to the complainant that he would throw him out of a window, but suicide would be ‘too easy’.
(c) On 4 April 2021, Mr Farmer set a book on fire in the complainant’s bedroom before putting it out.
(d) On 12 April 2021, Mr Garas cut the complainant’s hair with scissors; threatened to burn the complainant’s lips with a yellow coloured blow torch that he held to the complainant’s face; and hit the complainant’s face causing a split lip. The complainant used a sock to clean the blood from his lip.
(e) The complainant was forced to use notes to communicate or request food or a drink, which he slid under his bedroom door.
Further, during the same period, it is alleged that the complainant’s parents received multiple communications from the applicant. This included text messages from the applicant to the complainant’s father advising that the complainant owed $1.1 million, and that the complainant would not be harmed if the money was transferred.
The applicant called the complainant’s father on 29 March 2021. Further, on 30 March 2021, the complainant’s parents received another text message from the applicant stating:
‘I want this over and done with, so I'm happy to wait till tonight if you change your mind and want to help your son, otherwise I'll break the news to [redacted] and his debtors. Once they realize they won't get paid I don't think you'll see [redacted] again.’
The complainant’s father transferred a total of $100,000 into a bank account in the applicant’s name across four transactions between 24 March and 1 April 2021. The applicant has declined to assist police to recover this money. Mr Gullaci has suggested that is only because his accounts have been frozen and he is unable to operate them.
On 15 April 2021 at around 7:00pm, the complainant was left alone in the apartment and fled. He reported the events to police, who attended and secured the scene.
Mr Farmer and Mr Mirzaagha were arrested early on 16 April 2021 within the Southbank apartment building. On that date, a search warrant was executed at the Southbank apartment, where police located various items alleged to corroborate the complainant’s account, including a yellow blow torch, a handwritten note with the applicant’s bank account details and various other handwritten notes, scissors, socks with blood stains and various documents in the name of the applicant’s building company.
On 22 April 2021, police executed a search warrant at the applicant’s address in Malvern East. The applicant was arrested. Police located items including a zip lock bag containing a crystal substance believed to be methylamphetamine, nun-chucks, knuckledusters, an extendable baton and a taser.
Co-accused
There are three co-accused in this matter:
(a) Joel Farmer was charged on 16 April 2021 with false imprisonment; extortion with a threat to injure; making a threat to inflict serious injury; and unlawful assault. He is currently on remand, having applied to adjourn his application for bail.
(b) Sama Mirzaagha was charged on 16 April 2021 with false imprisonment; extortion with a threat to injure; making a threat to inflict serious injury; unlawful assault; trafficking a drug of dependence (two charges); possessing a drug of dependence (seven charges); dealing with property suspected of being the proceeds of crime; and fraudulently using a registration plate. He is currently on remand, not yet having made an application for bail.
(c) Andrew Garas was charged on 30 April 2021 with extortion with threat to kill; extortion with threat to injure; false imprisonment; making a threat to inflict serious injury; making a threat to kill; unlawful assault; theft of a motor vehicle; fraudulently using a registration plate; possessing a drug of dependence (two charges); dealing with property suspected of being proceeds of crime (three charges); possessing a prohibited weapon without exemption or approval; and possessing ammunition without a licence. He is currently on remand, not yet having made an application for bail.
Intervention order
On 22 April 2021, the applicant consented to the making of a final Personal Safety Intervention Order without admissions to protect the complainant.
The applicant’s circumstances
The applicant is 39 years old, having been born in January 1982. He completed year 12 in 1999 at Western Secondary College and has a degree in project management from the Victorian Institute of Technology.
The applicant became a registered builder at the age of 21 and has a history of stable employment in the construction industry. The applicant started his own business in 2004, Omega Building Pty Ltd, which specialises in large residential projects. He remains the sole owner and operator of that business although there are several employees. The risks to this business as a result the applicant remaining in custody are relied upon by him in support of an order for bail.
A letter from the applicant’s General Practitioner dated 26 April 2021 has been exhibited to the affidavit in support of the application. The letter details that the applicant was diagnosed with Stills Disease in his late teenage years, which is a chronic autoimmune progressive form of arthritis.
Criminal history
The applicant has some criminal history:
(a) In February 2018, he was convicted at the Moorabbin Magistrates’ Court of driving whilst his authorisation was suspended and sentenced to a 12-month Community Correction Order.
(b) In May 2015, he was convicted at the Ringwood Magistrates’ Court of driving whilst his authorisation was suspended and exceeding a speed sign by 10km (but less than 25km). He was sentenced to a 9-month Community Correction Order.
(c) In January 2016 and November 2017, he was found guilty of contravening the Community Correction Order imposed for his convictions in May 2015.
This history does the applicant little credit, but I accept, as was submitted on his behalf, that these matters bear little resemblance to the allegations that are now made against him.
The applicable legislation
Compelling Reason
I am required to take into account the guiding principles set out in s 1B(1) of the Bail Act 1977 (‘the Act’) when applying and interpreting that Act, namely:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
The parties agree that the applicant is required to demonstrate a compelling reason justifying the grant of bail under s 4AA(3) of the Bail Act 1977 (‘the Act’), as he is accused of a Schedule 2 offence.[9]
[9]See item 23, Schedule 2 of the Bail Act 1977 (Vic)
It follows that that bail must be refused unless the court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[10] In considering whether a compelling reason exists, the court must have regard to the surrounding circumstances, including, but not limited to, those in s 3AAA of the Act.[11]
[10]s 4C Bail Act 1977 (Vic)
[11]s 4C(3) Bail Act 1977 (Vic)
As Beach JA held in Re Ceylan, deciding whether an applicant has shown a “compelling reason” will involve evaluating all the relevant circumstances including the strength of the prosecution case, the personal circumstances of the applicant and criminal history as well as those matters set out in s 3AAA of the Act.[12] A synthesis of all those factors must compel the conclusion that the detention of the applicant is not justified. The reasons must be convincing and forceful.[13]
[12][2018] VSC 361 [46] (Beach JA)
[13][2018] VSC 361 [47] (Beach JA)
Unacceptable risk
If I am satisfied that a compelling reason exists, I must apply the unacceptable risk test.[14] Bail must be refused if the respondent establishes that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.[15]
[14]ss 4C(4) and 4D(1)(b) Bail Act 1977 (Vic).
[15]s 4D(1)(c) Bail Act 1977 (Vic)
In applying this test, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[16]
[16]s 4E(3) Bail Act 1977 (Vic)
The applicant’s submissions
No bail history and first time in custody
The applicant has no previous history of breaches of bail and the present remand is his first time in custody.
It is acknowledged on his behalf that the applicant has previously contravened a Community Correction Order, however it was submitted that the applicant ultimately completed that order. Further, the applicant complied with and completed the Community Correction Order imposed in February 2018.
The applicant has no other outstanding matters.
Impact on his business operations
The applicant is the sole owner and operator of Omega Building Pty Ltd, which he commenced in 2004. The applicant works long hours organising and overseeing the building projects. It is submitted that the business is reliant on him to function. The evidence in support of this as reason for granting bail comes only from the applicant’s solicitor in the affidavit in support of the application. Despite the paucity of evidence in support of this submission, it does not appear to be in contention so I am prepared to act on the affidavit.
The applicant’s business is said to be currently working on three building sites, with further contracts approved with a local council that are expected to commence in the next six weeks. Prior to the pandemic, the business would operate ten sites simultaneously.
The business apparently employs two employees four days per week to assist with the administration and accounts. There are another eight part-time employees to assist with the building projects. In addition, the business can engage up to 100 subcontractors at any one time.
It is submitted that the business has been unable to operate since the applicant’s remand and would likely fail. It is further submitted that there would be significant financial liability for failing to meet the contracts that the business currently has on foot.
As I pointed out in the course of argument, it seems likely that the applicant will need to deal with these issues at some stage because, given his concessions, the prospect of him not serving more time in custody is low. Mr Gullaci’s point about that was that at least he would have time to make arrangements to prepare for that likelihood should he be granted bail.
Accommodation and family support
The applicant is supported by his parents and sister, with whom it is claimed he shares a close relationship.
The applicant proposes to reside at a property which he owns at [redacted], Malvern East, if released on bail. However, the applicant’s parents have indicated that they are willing to have him reside with them, at their address in Glen Waverley, if required by the court.
Health issues
The applicant suffers from Stills Disease. He experiences intermittent pain and swelling in many of his joints and he has required two hip replacement surgeries to date. The applicant is under the regular care of a rheumatologist and is currently prescribed weekly injections of tocilizumab, which he self-administers.
I am informed that the applicant has not yet been provided with this medication whilst in custody. As I observed in the course of argument, I remain at a loss to understand why that would occur. This would appear to be appropriate and necessary medication for a properly diagnosed condition. There could be no proper reason to deny a prisoner’s access to such medication.
Availability of a surety and deposit of money
An affidavit of the applicant’s friend, Arthur Hajigeorgi, sworn on 28 April 2021 has been filed with the court. Mr Hajigeorgi deposes to knowing the applicant since the age of five and being willing to offer a surety of $150,000 in support of his application for bail.
In addition, the applicant submits that he is in a position to comply with a condition of a deposit of money, due to his unencumbered ownership of [redacted], Malvern East (also the proposed bail address). However, it is suggested the applicant has not co-operated with police in arranging the recovery of the $110,000 obtained during the alleged extortion. Mr Gullaci explained why that is and I have earlier referred to it.
In my opinion, the appropriate course to follow is to require a surety. The first reason for that is because it will impose a duty on another person to ensure that the applicant complies with his bail conditions and appears before the Court as required. Section 5 of the Bail Act does not appear to sanction both a surety and a deposit of funds:
(2) A bail decision maker, on granting bail, may release the accused—
(a) on their own undertaking without any other condition; or
(b) on their own undertaking with conduct conditions; or
(c) with a surety or sureties for a specified amount or a deposit of money of a specified amount, with or without conduct conditions (emphasis added).
Delay
Another of the grounds relied on in support of the application is that there will be a significant delay before this matter reaches trial. The applicant was arrested on 22 April 2021 and the matter is next listed on 19 July 2021 at the Melbourne Magistrates’ Court for a committal mention.
The hand-up brief is due to be served on 3 June 2021. Counsel for the respondent, Ms Malobabic, acknowledged in the course of her submissions that it is highly unlikely that the complete brief will be served by the nominated date, as significant delay is anticipated in the investigation due to the need for the Victoria Police E-Crime Unit to process at least three mobile phones (potentially four), and for DNA samples to be analysed.
Counsel for the applicant notes that there are multiple co-accused and a number of witnesses likely to be cross-examined at the committal, meaning that the committal could be listed for 2 or 3 days. It is submitted that enquiries with the Magistrates’ Court have revealed that a committal hearing, if it were to be listed now, would not take place before November 2021.
It was asserted on behalf of the applicant that the backlog of cases in the County Court is of the order of 1300 and may be closer to 1600. This backlog, caused by the Covid-19 pandemic, has been extremely difficult for those in custody awaiting trial as the delays have expanded. As I have regularly observed, in situations such as this delays do not become unacceptable only if they are likely to exceed the period of time in custody that will be imposed by way of sentence. A delay of three years is unacceptable unless that delay is somehow attributable to the accused deliberately delaying the proceedings, which is not case in this matter. It would seem to be unlikely that this matter would reach trial prior to 2024. I have previously concluded that such a delay is an exceptional circumstance within the meaning of that term in the Act and so it follows that it is also a compelling reason that would justify a grant of bail.
Unacceptable risk
In relation to the risk associated with his release on bail and whether it is unacceptable, the applicant relies on the following:
(a) his strong family and business ties to Victoria;
(b) the availability of the surety and potential deposit of money;
(c) the period between the co-accused’s arrest on 16 April and the applicant’s arrest on 21 April, during which time the applicant did not seek to contact the complainant or his parents, nor leave the jurisdiction or make arrangements to do so;
(d) he provided police with the access code to his mobile phone and consented to providing a DNA sample;
(e) his business and personal bank accounts appear to be frozen; and
(f) he consented to an intervention order prohibiting contact with the complainant, who now lives at an address that is not known to the applicant.
The applicant proposes conditions of bail relating to residence, a surety, complying with the intervention order protecting the complainant, not contacting witnesses for the prosecution and reporting to a police station three days per week to otherwise reduce risk to an acceptable level.
The respondent’s submissions
The application for bail is opposed on the basis that the applicant has not demonstrated the existence of a compelling reason that justifies the grant of bail. I do not accept that submission. On the basis of delay alone, I am persuaded that the applicant has demonstrated a compelling reason.
Additionally, the respondent contends there is an unacceptable risk that, if released on bail, the applicant would endanger the safety and welfare of any person, commit an offence while on bail or interfere with a witness or otherwise obstruct the course of justice in any matter.
In response to the affidavit in support of the application for bail, the respondent submits as follows:
(a) The alleged offending is very serious. The complainant was held against his will for an extended period of time, threatened, assaulted, and in addition his parents were made to transfer a significant sum of money to the applicant which has not been able to be recovered.
(b) The prosecution case against the applicant largely relies on the evidence of the complainant, which is detailed and clearly identifies the applicant and his role in the offending. Furthermore, the evidence of the complainant is corroborated by CCTV footage, call charge records, text messages and bank transactions. It is noted that the complainant does not have a prior criminal history.
(c) There are no treatment or bail support services proposed if the applicant is granted bail.
(d) The complainant and his parents are in fear of the applicant and do not want bail to be granted. The informant’s report states that the complainant believes that the applicant will know where he is residing, even though he has moved out of the property where the alleged offending occurred.
(e) It is conceded that whilst there may be some delay due to the pandemic, the length of the delay is speculative and the matter will progress to committal mention on 19 July 2021. Ms Malobabic acknowledged however there could be some delay in serving the Hand Up Brief. It was submitted that the delay in this matter is not disproportionate given the strength of the evidence, the seriousness of the allegations and likely sentence should the applicant be found guilty of any of the charged offences. If convicted, it is submitted that the applicant will likely be sentenced to a term of imprisonment. Extortion has a maximum penalty of 15 years’ imprisonment and false imprisonment and making a threat to kill have a maximum penalty of 10 years’ imprisonment. It follows from what I have said that I reject that submission. A three year delay will not be acceptable because the case is a strong one and a sentence of imprisonment longer than the period of remand might be imposed.
(f) The applicant relies on the continued running of his business to support his application for bail. No material has been filed by the applicant to demonstrate the functioning of the business, the projects it is currently undertaking, or the staff who are employed by the business. Further, the motive in relation to the current alleged offending relates to a failed business venture between the applicant and the complainant.
(g) The applicant proposes to be bailed to reside at [redacted], in Malvern East, where he was living at the time of the alleged offending. The applicant lives alone at this address and will not be subject to supervision, and as such it is not a suitable address for bail.
(h) The applicant also seeks to rely on being unable to access his medications whilst in custody. It is submitted that the material supporting this proposition is not recent and does not provide a current view of his medication needs, with the General Practitioner not having seen the applicant since July 2020 and the rheumatologist’s letter dated 1 August 2019.
Unacceptable risk
Counsel for the respondent argued that there is a concern for the complainant’s and his parents’ safety, as the prosecution case largely relies on the complainant’s evidence. If it is proposed that the applicant be bailed to reside by himself, no one is available to monitor his compliance with bail conditions. In addition, police located a number of weapons at the applicant’s address which indicates his ability to source prohibited weapons.
Regarding committing an offence while on bail and interfering with a witness, the respondent relies on the risk that the applicant may attempt to interfere with the complainant for the reason outlined above.
Conclusion
These are obviously very serious allegations. Whilst there may be room for some factual disputes and arguments about the consistency or believability of the evidence and the fact that it arose in circumstances where it is claimed the complainant legitimately owed money to the applicant, it could not be described as a weak case overall. Of course, that will become clearer upon the hearing of the committal.
However, in my opinion, and for the reasons I have already outlined, I am persuaded that the applicant has demonstrated a compelling reason or reasons that justify a grant of bail pursuant to s 4C of the Bail Act. The delay, which occurs in so many cases where trials are to be heard in the County Court, is again primary to this case. In this case, that delay is exacerbated by the applicant’s health condition and the regrettable situation that for two weeks he has been without his medication.
In addition to the delay, the applicant relies on several other factors which address both the considerations of compelling reasons and unacceptable risk. Firstly, there is a reasonably significant surety available of $150,000.00. Next, the applicant has a place to live, being his residential address, and work, being his own business. The applicant’s work has the capacity to keep him fully occupied. He has not been accused of trying to make any contact with the complainant. His prior history is not strongly significant. It is to be hoped that the two weeks the applicant has spent in custody, the first time he has been in this environment, are some kind of a message to him as to what will occur if he were to breach any of the conditions of his bail which I will shortly identify. I am of the view that appropriately strict conditions will reduce the risk of releasing the applicant to an acceptable level.
I will release the applicant on bail on his own undertaking and with a surety of $150,000.00 by Arthur Hajigeorgi and with conditions.
Accordingly, I make the following orders:
(1)The said Nicholas Tofaris (‘the applicant’) be admitted to bail upon his own undertaking with a surety in the amount of $150,000.00 by Arthur Hajigeorgi and with the following conditions:
(a) The applicant reside at [redacted], Malvern East in the State of Victoria (‘place of residence’);
(b)The applicant notify the informant Senior Constable Jordan Faulkhead or her nominee, being an authorised member of Victoria Police, at least 7 days in advance of any proposal to change to his place of residence;
(c)The applicant not leave his place of residence between the hours of 8:00 p.m. and 6:00 a.m. (‘curfew hours’);
(d)The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informant or her nominee;
(e)The applicant comply with the Intervention Order where the protected person is [redacted];
(f)The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant, and not associate with any of the co-accused who have been charged in this matter;
(g)The applicant report to the officer in charge of Oakleigh police station or his or her nominee on Monday, Wednesday and Friday every week between the hours of 9:00 a.m. and 6:00 p.m.;
(h)The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(i)The applicant not leave the State of Victoria;
(j)The applicant not leave Australia;
(k)The applicant not attend any points of international departure;
(l)The applicant surrender any current passport or travel document in his possession or control to the informant or her nominee within 24 hours of being released on bail;
(m)The applicant is not to apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf; and
(n)The applicant appear at the Magistrates’ Court at Melbourne on 21 July 2021 at 9:30 a.m. and thereafter as directed by that Court.
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