Re Zayat
[2021] VSC 454
•30 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0181
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by Romano ZAYAT |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2021 |
DATE OF JUDGMENT: | 30 July 2021 |
DATE OF REASONS: | 3 August 2021 |
CASE MAY BE CITED AS: | Re Zayat |
MEDIUM NEUTRAL CITATION: | [2021] VSC 454 |
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CRIMINAL LAW – Bail application – Alleged domestic violence against wife in presence of young children during period of a Community Corrections Order and Intervention Order imposed in respect of previous domestic violence against wife – Exceptional circumstances not demonstrated – Unacceptable risk to commit further offences and endanger members of the community – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA, 5AAB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Jackson | Michael J Gleeson & Associates |
| For the Respondent | Ms H Baxter | Director of Public Prosecutions |
HIS HONOUR:
INTRODUCTION
On 30 July 2021, I heard a bail application by Romano Zayat, born 5 January 1987, (the applicant) in respect of alleged offences against his wife on 21 March 2021. He was arrested on 28 March 2021 for these alleged offences and has been in custody ever since. His counsel told me that on his present instructions the matter will be proceeding to trial. There is to be a committal mention on 1 September 2021.
It was incumbent on the applicant to show exceptional circumstances justifying a grant of bail because he is alleged to have committed Schedule 2 offences during the period of a Community Corrections Order made in respect of Schedule 2 offences.
I gave brief oral reasons for refusing bail, finding that exceptional circumstances were not established and that, in any event, he was an unacceptable risk of committing further offences. I promised to give detailed written reasons later and I do so now.
CHRONOLOGY
Before summarising the current alleged offences, I will give a brief chronology.
The applicant and his wife have been married for about 17 years. They have three boys, currently aged 13, 10 and 3.
On his own admission, the applicant began using methylamphetamine heavily in early 2020. He was using it on a daily basis. His relationship with his wife deteriorated. So did his plumbing business.
In September 2020, the applicant was arrested in respect of dishonesty offences and released on bail. That matter is listed for a plea in September 2021.
Very early on 12 January 2021, the applicant wanted his wife to give him some jewellery that his mother had given her. The applicant was yelling abusively at his wife who later in the morning decided to take the children to their grandparents, which angered the applicant. His wife went to work. The applicant attended her workplace and threatened to ram the door if she did not let him in. When she declined, he got into his car and drove it into the window near where the applicant was sitting. The window cracked. He reversed and rammed the window a second time, shattering it. His wife called 000. The applicant got out of the car, kicked in the shattered window and entered his wife’s work premises, screaming at her. She retreated. The applicant left, picked up his youngest son from an Early Learning Centre and, without placing his son in a proper restrainer, drove home, where the applicant was arrested and charged with a variety of offences which were dealt with by Broadmeadows Magistrates’ Court on 25 February 2021 (see below).
On 13 January 2021, the applicant was bailed and an intervention order was made against him in respect of his wife. The intervention order prohibited him from contacting his wife and three children unless via text message, email or letter regarding childcare arrangements.
Between 14 January 2021 and 1 February 2021, the applicant, in breach of the intervention order, contacted his wife by phone some 166 times.
On 3 February 2021, the applicant was arrested for breaching the intervention order by repeatedly calling his wife.
On 25 February 2021, at Broadmeadows Magistrates’ Court, the applicant received a combined sentence of imprisonment (7 days’ imprisonment with 7 days of pre-sentence detention declared) and a 15-month community corrections order (‘CCO’) for the following offences:
·Drive in a manner dangerous
·Trespass
·Intentionally destroy property
·Persistent contravention of family violence intervention order
·Commit indictable offence on bail
·Contravene a condition of bail
·Fail to comply with direction to assist
·Failure to ensure passenger appropriately secured – under 16 years.
On 19 March 2021, the applicant allegedly failed, without reasonable excuse, to attend a urine test required under his CCO.
On 21 March 2021, less than a month after being released on the CCO, the applicant allegedly committed the current offences which I will summarise below.
On 22 March 2021, the applicant allegedly failed, without reasonable excuse, to attend for supervision as required under his CCO.
On 28 March 2021, the applicant was arrested on the current charges and remanded in custody.
On 14 April 2021, the applicant provided a urine sample in prison which was found to be negative for illicit drugs.
On 3 June 2021, the applicant was assessed for the Court Integrated Services Program (CISP). He was found to be suitable for involvement in the program if granted bail. Because of COVID-19, if the applicant is granted bail, CISP or its nominee would conduct the applicant’s supervision, drug assessment and treatment over the phone. The CISP report says this about the applicant’s drug history:
Problems with Illicit/licit Substances
Mr Zayat disclosed a prolonged history of illicit substance use, commencing in his teen years reaching problematic levels in the last 12 to 18 months. Mr Zayat reported undertaking “destructive” behaviour in his late teens, stating he used up until the age of 19 years when his eldest son was born, at which time he ceased all use.
Mr Zayat advised returning to use of illicit substances approximately 18 months ago, with the use of Methamphetamines (ICE), followed six months later with the use of Cocaine. Mr Zayat advised he had a “happy family” until he started using illicit substances to cope with life stressors. Reporting the deterioration of his 16-year relationship commencing amidst a chain reaction of daily drug use and worsening stress.
CURRENT ALLEGED OFFENCES
In relation to the current alleged offences, the Informant’s summary reads as follows, relevantly:
On the 20th March 2021, [the accused’s wife] went into the city to spend the night with some friends. While [she] was out, the accused called her mobile over 50 times, constantly asking who [she] was with and where she was. [She] stopped answering the calls, which were coming through on WhatsApp. The accused was using his phone and his [oldest son’s] phone.
[The accused’s wife] eventually told the accused to stop attempting to contact her, feeling incredibly harassed by the accused constant attempts to reach her. [She] recorded the voice messages left by the accused at the time.
[She] stayed in the city that night and didn’t come home until approximately 9:00am on the 21st March 2021. When [she] arrived home, she found the gate to the address was padlocked by the accused.
The accused and [his oldest son] exited the house, and instantly the accused began yelling at [his wife], accusing her of cheating and just ranting about her being out.
[The accused’s wife], not being able to get inside and not wanting to antagonise the accused in the state he was in, decided to go across the road to a family friend’s address …
At approximately 9:30am, the [accused’s youngest son] began yelling out for [his mother] so the accused unlocked the gate and let [her] back inside the address.
When back inside the home address, the accused took [his wife’s] phone, stating he would put it on charge for her. The accused went through the phone, deleting all the messages and phone calls between them from the night before. The accused also located the recordings of his messages and deleted those as well. A short time afterwards, the accused confronted [his wife] about the recordings, yelling at [her] about this, stating that it was breaking up their family.
The accused left the house and sat in the shed.
At approximately 4:00pm, the accused called [his wife], asking if she or the kids were hungry. [His wife] said no, and then asked the accused if he had deleted the calls and messages on her phone. The accused flat out denied touching her phone.
The accused asked if [she] would report the calls to the police to which she responded yes.
The accused demeanour drastically changed at this point, yelling at [his wife] “Do you hate me that much?”
The accused walked back into the house and confronted [his wife] in the living room. The accused asked [her] if she was recording him, to which [she] stated she wasn’t. The accused stated, “I don’t believe you.” He started grabbing at [her] pockets attempting to locate the phone.
[The accused’s wife] was sitting on the phone at the time, and grabbed it from underneath her. The accused, seeing this, attempted to snatch the phone out of [his wife’s] hand. [She] attempted to stop the accused from getting the phone, and in the struggle, partially slapped the accused in the face.
In surprise [at] her actions, the [accused’s wife] partially let go of her phone. The accused took advantage of this and snatched the phone from [his wife’s] hand. The accused then turned to [his oldest son] while yelling at [his wife], “You just punched me in the face.” He then told [his oldest son] to call for police.
All the [children] came out after hearing the accused yell this. The accused got up out of the living room, walked to the bathroom and in front of all the [family], smashed [his wife’s] phone against the window frame 3 times causing the phone to shatter.
[His wife] pleaded with the accused to stop smashing the phone but the accused just yelled back at [her]. After smashing the phone, the [accused’s wife and children] and the accused walked back into the kitchen.
The accused began pleading with [his wife] to just stay together and be a family.
[His wife] attempted to leave the house with the [children], trying to go across the road. The accused blocked [her] at the front door, begging [her] not to call police.
While begging, the accused grabbed [her] face with both hands and pushed her head against the wall next to the front door. This happened in front of all the [children]. The accused turned to [the children] and said, “kids go outside, I’m going to burn down the house with me and mum inside.”
[The accused’s wife], not wanting her kids seeing the assault, told the [children] to go back into their bedrooms.
The accused and [his wife] have eventually moved to the kitchen. When inside the kitchen, the accused grabbed [her] from behind, wrapping his arm around her neck and using that arm to strangle her, cutting off [her] airways. While the accused was strangling [her], he turned to [the children] again and said, “You’re going to be orphaned.”
While strangling [his wife], the accused using his spare arm, attempted to grab one of the large kitchen knives in a bowl in the kitchen.
[The children] were initially yelling at the accused to stop, but on seeing the accused attempting to grab a knife, [the two oldest boys] intervened, struggling to stop the accused from getting the knife by physically grabbing and holding the accused.
The accused …refused to stop his physical tirade grabbing [his wife] by the throat and pushed her into the corner of the kitchen. The accused squeezed [her] throat, strangling her. The accused’s wife was struggling to breathe and made numerous attempts to push the accused away but was unsuccessful. Eventually the accused stopped because the [children] kept yelling for him to stop.
[The accused’s wife], in utter terror, attempted to back away from the accused but the accused shoved [her] onto the ground and then sat on her torso. The accused held [her] head against the ground with one of his hands, while searching for a knife again with the other hand. Again [the two oldest boys] intervened, holding the accused away from the knives.
The accused continually yelled at [his wife], a mixture of threats and pleading for [her] to stay.
[The accused’s wife] began crawling away from the accused while telling the [children] to run across the road to [a neighbour’s] house. [The accused’s oldest son] attempted to run through the front door, but the accused grabbed him by the back of the shirt. There’s been a short struggle, but [the accused’s oldest son’s] shirt eventually ripped from the top of the back all the way down to the bottom seam. [The boy] managed to flee from the house, leaving the accused with a scrap of his shirt in his hands.
[The accused’s wife] managed to get to the front door at this time, and the accused turned to her, grabbing her by the throat and slamming [her] hard against the wall, causing damage to the wall. The accused strangled [her] again, causing her to lose breath.
[The youngest boy], seeing his mother getting hurt, attempted to intervene, grabbing at the accused’s leg. [The second oldest boy] tried to grab [the youngest boy] and pull him away.
Eventually [the accused’s wife] managed to get away from the accused and she’s grabbed [her two youngest sons] and fled across the road to where [a neighbour] and [her oldest son] were waiting. [The accused’s wife] yelled out to [the neighbour] to call for police and to lock the door.
After [the accused’s wife and children] managed to escape the house, the accused located [his wife’s] personal savings of $3500, located in a pink and white cup with the label ‘mum’ on it. The accused took the money and fled the scene.
Police attended the scene, obtained statements from [the accused’s wife] and [the neighbour] and processed the scene. Accommodation was organised for the [accused’s wife and children] and a variation of the current intervention order was applied for.
The following 28 charges have been laid in relation to this incident:
·Reckless conduct endangering life
·False imprisonment (wife)
·False imprisonment (son 1)
·Threat to destroy property
·Threat to kill
·Criminal damage (Samsung Galaxy)
·Criminal damage (wall)
·Intentionally cause injury
·Recklessly cause injury
·Aggravated assault of a female
·Unlawful assault (child 1)
·Unlawful assault (child 2)
·Unlawful assault (child 3)
·Use a carriage service to harass
·Theft
·Commit indictable offence on bail
·Contravene family violence intervention order intending to cause harm or fear of safety
·Contravene family violence intervention order intending to cause harm or fear of safety
·Contravene family violence intervention order intending to cause harm or fear of safety
·Contravene family violence intervention order intending to cause harm or fear of safety
·Persistent contravention of family violence intervention order
·Contravene family violence intervention order
·Contravene family violence intervention order
·Contravene family violence intervention order
·Common assault (wife)
·Common assault (son 1)
·Common assault (son 2))
·Common assault (son 3)
MATTERS RELIED ON BY APPLICANT
The applicant relied on a combination of matters to demonstrate exceptional circumstances and to rebut the respondent’s submission that he was an unacceptable risk. First, delay; given COVID-19 backlogs, a trial on the current offences is unlikely to be held until 2023. The applicant submits that he may spend more time on remand than he would if the charges are proven and he is sentenced to imprisonment. Second, residence; the applicant is able to reside with a friend and his family some two hours’ drive away from the applicant’s former family home. His friend can provide close supervision and support because the friend is not currently working. His friend gave evidence on the bail application and undertook to report any breach of bail conditions. Third, work; the applicant can resume his plumbing business. The bundle of character references tended by the applicant included one from a property manager who is keen to use the applicant’s plumbing services again. Fourth, there is a surety; the applicant’s sister offers a surety of $3000. Fifth, the time already spent in custody has provided a wakeup call to the applicant and an incentive to abide by any bail conditions. Further, conditions in prison are harsher than normal because of COVID-19 restrictions. Sixth, the applicant is willing to abide by strict bail conditions. Seventh, the applicant has been attending Narcotics Anonymous meetings whilst on remand. He returned a negative drug screen in April 2021. He has detoxed whilst in custody. Eighth, the applicant will have the support of CISP. Ninth, the applicant also has the support of many friends, as demonstrated by the bundle of character references supplied.
ANALYSIS
Even though the domestic violence incident on 12 January this year did not include physical violence against the applicant’s wife, it was a shocking episode. The fact that, using his car, the applicant rammed the window at her work until it smashed indicates she was not only at risk within their home. He was prepared to terrorise her in a public setting. This is relevant to the assessment of the risk he poses to his estranged wife.
He spent a week in police cells before his court hearing on 25 February 2021 That should have been ‘a wakeup call’ over and above the making of the intervention order and the making of the CCO. But regrettably, less than a month later, he is alleged to have committed another serious episode of domestic violence against his wife, this time in the presence of his three young boys. It is not suggested that the case against him in relation to this incident is a weak one. Although the incident occurred in the home, its alleged commission in the presence of his three boys is also relevant to an assessment of the risk he poses to his wife.
If, after a trial, he is found guilty of the most serious charges arising from the episode on 21 March 2021, in my view it is likely the applicant will receive a sentence of imprisonment with the minimum term exceeding any time spent on remand. This is a circumstance which militates against the anticipated delay until trial, although considerable, being viewed as exceptional circumstances, even when considered in combination with the other matters relied on by the applicant.
The applicant’s use of illicit drugs is not something short-lived. On his own admission to CISP, he has been using illicit drugs since his teens. And on his own admission he had been using illicit drugs on a daily basis for 18 months prior to his incarceration. The longstanding and deep-seated nature of his illicit substance abuse compounds the risk of him committing further offences against his wife and children if released on bail. A negative drug screen (but only one) and participation in Narcotics Anonymous meetings in prison is a step in the right direction, but it would be unrealistic to think that upon release from custody, whilst still estranged from his wife and children, there is not a significant risk of further substance abuse, even with strict bail conditions and the support of CISP.
Consequently, having had regard to the relevant provisions of the Bail Act 1977 (Vic), namely ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA, 5AAB, I was not satisfied that exceptional circumstances were made out. In any event, I was satisfied on the evidence that the risks of the applicant committing further offences against his wife and children if released on bail were unacceptable.
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