Re Zohs
[2020] VSC 827
•4 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0326
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by BENJAMIN ZOHS |
---
JUDGE: | T FORREST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2020 |
DATE OF RULING: | 4 December 2020 |
CASE MAY BE CITED AS: | Re Zohs |
MEDIUM NEUTRAL CITATION: | [2020] VSC 827 |
---
CRIMINAL LAW — Application for bail — Applicant charged with committing sch 2 offence whilst on bail for another sch 2 offence — Whether exceptional circumstances exist justifying bail — Additional burden of imprisonment represented by COVID-19 due to
pre-existing medical condition — Whether applicant presents unacceptable risk of reoffending or not complying with conditions of bail — Prior history of non-compliance with court orders and bail conditions — Bail refused — Bail Act 1977 ss 3AAA, 4D, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Stanton | Victoria Legal Aid |
| For the Respondent | Mr M Aitken | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 5 November 2019, the applicant was arrested and remanded on charges of aggravated burglary, theft and committing an indictable offence whilst on bail. The informant for these offences is Detective Senior Constable Adele Walsh. The charges arise out of events alleged to have occurred in company with the co-accused, Brendan Bourke, at a residential premises in Prahran earlier that same day.
At the time of the alleged offending, the applicant was on two separate grants of bail for matters that have since been resolved. Specifically, on 3 December 2019 the applicant was sentenced at Moorabbin Magistrates' Court to eight months' imprisonment for various offences including failing to answer bail, and further, on 14 May 2020 the applicant was sentenced in the Dandenong Magistrates' Court to two months' imprisonment for various offences including relevantly committing an indictable offence whilst on bail (two counts) and contravening a conduct condition of bail (two counts).
On 1 July 2020, the applicant made an application for bail at the Melbourne Magistrates' Court. The application was refused on 22 July 2020 on the basis that, although the applicant had established exceptional circumstances, he was considered an unacceptable risk of committing offences whilst on bail or of failing to surrender himself into custody in accordance with the conditions of bail.
By application filed 24 November 2020, the applicant applies to this Court for a grant of bail. Having been accused of committing a sch 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) whilst on bail for another sch 2 offence, the applicant accepts that bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify that grant of bail. In considering this question, the Court must take into account the relevant surrounding circumstances, including those specifically referred to in s 3AAA of the Act.
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test under ss 4D and 4E of the Act.
Thus, notwithstanding that the applicant may satisfy the exceptional circumstances test, the Court must still refuse bail if satisfied by the prosecution that there is an unacceptable risk that the applicant would endanger the safety and welfare of any person, commit an offence whilst on bail, interfere with a witness or otherwise obstruct the course of justice in any matter, or fail to surrender into custody in accordance with conditions of bail.
In considering whether a risk is unacceptable, a court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk to an acceptable level. In interpreting and applying the Act, the court is required to have regard to the guiding principles set out in s 1B of the Act. This includes maximising the safety of the community and persons affected by the crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.
The alleged offending
At 5:00 am on 5 November 2019 it is alleged that the applicant and the co-accused attended a residential address in Prahran and entered through the unlocked front door. The prosecution case is that, once inside, the applicant and the co-accused burgled the premises and stole items including an iPhone 7, Coach shoulder bag, numerous personal cards, wallets, passports and keys belonging to the three residents. It was not until one of the residents awoke to a male intruder in his bedroom that it is alleged the applicant and his co-offender fled the scene.
In the period following, the applicant and the co‑accused were alleged to be captured on CCTV in three separate locations within a 170-metre radius of the complainant’s residence. In one of those locations, a laneway, two men alleged to be the applicant and the co-accused were depicted on CCTV examining items alleged to have been stolen during the course of the burglary.
It is further alleged that the applicant can be seen on CCTV wearing white and purple Nike shoes. As I understand it, the applicant disputes the clarity of this vision and what it actually depicts.
At 1:22 pm, that is, about eight hours after the burglary, the applicant was intercepted by police whilst driving in Prahran. He was arrested on unrelated matters and, during a search, police located a passport stolen from the Prahran address and secreted in the cuff of the applicant’s pants. At the time of arrest, the applicant was wearing white and purple Nike shoes.
These shoes were seized and one of them is alleged to match a shoe imprint left on a couch at the Prahran address. This match is to the size and pattern of the shoe seized, insofar as I am able to distil it from the material. I do not understand there to be any idiosyncrasies peculiar to both imprint and shoe.
The applicant was transported to Prahran Police Station for interview. He denied any involvement in the alleged offending. I have read a transcript this morning of the applicant’s interview. It is probably imprudent to express my conclusions as to the applicant’s explanation for having the passport in his possession. This explanation may provide solid evidence in the prosecution case.
On 19 November 2019, the co-accused Bourke was arrested and remanded into custody. He subsequently pleaded guilty to a consolidation of charges relating to other matters and the matters for which the informant Detective Senior Constable Adele Walsh was responsible.
The consolidation of charges included the Walsh informant aggravated burglary, theft, attempted theft from a motor vehicle, obtaining property by deception, obtaining a financial advantage by deception and contravening a conduct condition of bail. Additionally, beyond the informant Walsh offending, the co-accused Bourke pleaded guilty as part of the consolidation to a theft of a motor car charge and driving in a manner dangerous. I observe that Bourke’s prior history, with which I have been provided, was extensive although perhaps not quite as extensive as the
applicant’s. He was sentenced in the Melbourne Magistrates’ Court to an aggregate term of 20 months’ imprisonment, with a minimum term of 14 months.
The applicant’s background
The applicant is now 29 years of age. He has a longstanding history of illicit drug use, having commenced using cannabis at the age of 13 before graduating to methylamphetamine at 16 and heroin at 27. He also has a history of prescription drug use from the age of 20. He has two younger siblings, the youngest of whom, Adam, is still living at home with his parents. He has one older half-brother. He described, to his psychologist, Dr Michael Papasava, having an ‘all right’ childhood albeit beset by tragedy at the age of nine when his best friend was killed.
The applicant was expelled from secondary school due to unruly behaviour and he left school altogether after completing Year 9. He then, by his own description, 'partied for a few years' before commencing a spray painting job at the age of 19. He went on to study Certificate IV in Horticulture at TAFE and worked at a nursery for several years.
On the applicant’s account to Dr Papasava, his employment was interrupted when he was diagnosed with a pneumothorax, which is a collapsed lung. He alleged at the time that his chest had been kicked in by a group of police officers during the course of an arrest. I will return to his medical condition but it is sufficient to state at this stage that his lungs collapse spontaneously on occasions and this has contributed to panic attacks and anxiety.
Against this background, the applicant describes changing to a more reclusive lifestyle and ceasing formal employment. He told his psychologist that he started selling drugs as a means of making money.
In December 2018, in the course of a police pursuit, the applicant crashed a vehicle at high speed. He suffered numerous injuries as a result and, in a subsequent neuropsychological assessment, it was conservatively estimated that the applicant’s intellectual functioning had fallen to the low–average to average range.
The applicant was diagnosed by Dr Papasava as suffering from a post-traumatic stress disorder (‘PTSD’) (severe), major depressive disorder, drug use disorder, pain disorder and panic attacks. He also reportedly has a previous diagnosis of bipolar disorder.
The applicant’s criminal history, commencing in 2008, involves convictions and findings of guilt for possessing and using drugs as well as trafficking in them, driving offences, dishonesty offences, violence offences, firearms offences, other weapons offences and making threats to kill and cause serious injury. He has a poor history of compliance with court orders. I shall return to this prior criminal history later in these reasons.
In a comprehensive and helpful affidavit in support of the application for bail, affirmed by the applicant’s solicitor, Ms Hannah Fiddelaers, it was submitted that the following matters are established by the evidence and combine to establish exceptional circumstances that justify the grant of bail.
(a) The strength of the prosecution case
In short compass, it was submitted both in the affidavit and by counsel for the applicant in helpful oral submissions that the case against the applicant is weak and that neither the elements of aggravated burglary nor of theft can be established.
(b) The applicant has strong family support and suitable accommodation
The applicant is supported by and maintains a good relationship with his parents. The applicant’s father gave evidence before me this morning. I regarded him as an impressive witness. He resides in the family home in Wheelers Hill with his wife and youngest son. If the applicant were released on bail the house would be fully occupied. The applicant would have his own bedroom and would share common areas.
The applicant’s father undertook to contact police if the applicant were in breach of any of the conditions of bail. Whilst I regarded Mr Zohs as an impressive and honest witness, it cannot be gainsaid that his efforts — and the family’s efforts — at supporting and monitoring the applicant during his previous times on bail and on other court orders have been singularly unsuccessful.
(c) Special vulnerabilities
The applicant has a history of spontaneous pneumothorax, which has necessitated multiple surgeries. He has diagnoses, as I have indicated, of PTSD, major depressive disorder, drug use disorder and pain disorder.
(d) Bail support service
The applicant has twice been assessed by Mr Brody Ryan of the Court Integrated Services Program (‘CISP’) as suitable for case management in the community, most recently on 22 December of this year.
He was noted by Mr Ryan to engage well throughout the assessment and reportedly appear to comprehend questions and discussion. During the assessment, the applicant conceded issues with poor mental health, gambling, anger management and illicit substance use.
It is proposed that, if the applicant is granted bail, he engage with telephone appointments with his CISP case manager, undergo assessment and treatment for drug use, explore options for mental health support and attend all pharmacotherapy methadone appointments as scheduled. The first CISP case management appointment has been booked for 11:30 am on 8 December 2020, which is four days away.
(e) Delay
The matter is next listed for a contested summary hearing at the Melbourne Magistrates' Court on 2 February 2021. By this time, the applicant will have spent 450 consecutive days in custody and it is estimated that approximately eight months of pre-sentence detention will have been spent on remand for the present matter.
The applicant submitted that whilst this period may not exceed any sentence that might be imposed, if the applicant were found guilty, it is still significant in circumstances where the applicant maintains his plea of not guilty and is entitled to rely on the presumption of innocence.
(f) Effects of COVID-19 on conditions of custody
During oral submissions, counsel for the applicant, Mr Michael Stanton, developed the argument that the applicant’s vulnerability to lung disease, the current pandemic and the onerous conditions of custody were significant to the demonstration of exceptional circumstances. It was submitted that COVID-19 posed a greater threat to persons in custody as compared with the general population due to the confined conditions in which persons in custody are kept.
Whilst Mr Stanton acknowledged that the transmission rate of COVID-19 has dropped significantly in recent times, he submitted that the pandemic remains a source of concern for the applicant due to his underlying health conditions and that up until now it has been a source of very great concern to the applicant.
(g) Unacceptable risk
As to the question of unacceptable risk, it was submitted that any risks alleged by the respondent can be ameliorated to an acceptable level through the imposition of strict conditions of bail including conditions as to residence, assessment, and treatment, monitoring and reporting.
Mr Stanton in submissions noted further that the applicant was aware of the risks to his health and these may act as some constraint upon him.
The respondent’s submissions
For the respondent, Mr Aitken opposed the application for bail on two grounds: first, it was submitted that the applicant has not discharged the burden of satisfying the Court of exceptional circumstances that justify the grant of bail — although, sensibly, he accepted that the applicant’s medical conditions got him some distance towards satisfying that burden.
Second, Mr Aitken submitted that the applicant, if granted bail, posed an unacceptable risk of committing an offence and failing to surrender in accordance with bail conditions. It was submitted on behalf of the respondent that this was not a weak prosecution case at all. It was a circumstantial case supported by crime scene photographs, CCTV, the shoe print, the shoes seized from the applicant at the time of his arrest, the finding of the passport and the applicant’s allegedly false answers in his police interview.
Further, it was submitted on behalf of the respondent that the applicant’s accommodation proposal, while providing a caring family environment, had not been demonstrated to have had any restraining influence upon the applicant in the past. The respondent also referred to the applicant’s criminal record, which included numerous bail offences and breaches of community-based sentences.
Analysis
Exceptional circumstances
The applicant will have served approximately eight months' imprisonment on remand for these charges by the time of the contested summary hearing in early February 2021. By current standards, that is far from exceptional. In fact, it is reasonably expeditious given the difficult circumstances under which all courts have operated since the pandemic commenced. That is by itself not a circumstance that would give rise to a conclusion of exceptional circumstances, but it needs to be considered with other aspects called in aid by the applicant.
I accept that the applicant has a significant medical history. I accept that he suffers from spontaneous pneumothoraces, which present, in the setting of the pandemic, a really serious risk to his health. I accept that the prison environment does not lend itself to social distancing or other best practice compliance.
I accept that the applicant suffers from major depression, from a pre-existing bipolar affective disorder, from anxiety and from a PTSD of some severity. In those circumstances, I accept that the applicant’s time in custody is significantly more burdensome than it would be for a person in normal health.
I do not agree with the submissions on behalf of the applicant that the strength of the Crown case is weak.
Balancing those factors as best I can, I am satisfied that the applicant has demonstrated exceptional circumstances. Exceptional circumstances can be demonstrated by a combination of factors, and my view is that the applicant’s medical history (particularly his predisposition to pneumothoraces), his psychological history, and the risks that are presented in confinement by the pandemic virus are sufficient to satisfy that heavy burden.
Unacceptable risk
It remains to assess whether the respondent has established that the applicant is an unacceptable risk of committing an offence or of failing to surrender in accordance with bail conditions. In considering this aspect of the application, I have examined:
·two CISP Remand Outreach Program reports, the latest dated 2 December 2020, which recommend that the applicant is suitable for the CISP support case management plan program;
·the applicant’s criminal record;
·the psychological report of Dr Michael Papasava, dated 22 October 2019;
·discharge summaries from Southern Health and Alfred Hospital to do with spontaneous pneumothoraces (right and left side) and multiple fractures from a motor vehicle accident (December 2018);
·the neuropsychological report of Alfred Health dated March 2019; and
·Department of Health and Human Services and World Health Organisation information and advice related to COVID-19.
With apologies for repetition, I accept the following propositions:
(a) The applicant’s health is indifferent. I refer particularly to his predisposition to pneumothoraces.
(b) The applicant exhibits signs of acquired brain injury with slowing or disorganisation of various cognitive functions.
(c) The applicant is more vulnerable to COVID-19 than other young prisoners because of his compromised lung function.
(d) The applicant comes from a sound family who can offer him support and accommodation if released on bail. His partner can also accommodate him, although this address appears to me to be less suitable.
(e) The applicant has a long history of drug abuse, commencing with cannabis and progressing to methylamphetamine and heroin.
(f) In addition to his organic acquired brain injury, the applicant has been diagnosed with PTSD, major depressive disorder, panic attacks, drug use disorder and pain disorder.
These propositions in combination will no doubt be relied upon if and when it becomes time to consider sentence in this matter. However, they do little, in my view, to address the issues of unacceptable risk for which the respondent contends.
The applicant’s prior criminal history is extensive. It dates back to 2008. As I have said, it includes repeated instances of criminal damage, weapons offences, drug possession offences (including cannabis and methylamphetamine), violent offences (including assault with a weapon, making threats to kill, threatening to inflict serious injury, assaulting an emergency worker on duty and assaulting police) and driving offences (including careless driving, dangerous driving, driving while suspended, driving an unregistered vehicle and failing to stop a motor vehicle when requested).
The applicant also has multiple convictions for dishonesty offences, including dealing with property suspected of being the proceeds of crime, handling stolen goods (and similar offences), burglary, theft and attempted theft. The applicant’s history of offending is prolific, having been before either the Dandenong Children’s Court, Dandenong Magistrates' Court or Moorabbin Magistrates' Court with monotonous regularity between 2008 and the present.
Despite this, the applicant did not receive a custodial sentence until September 2016 and has received, at various times, fines, suspended sentences and Community Correction Orders (‘CCOs’). In September 2016, as a result of offending that included criminal damage with intent to destroy or damage, two counts of making threats to kill and two counts of assaulting an emergency worker on duty, the applicant was sentenced to 12 months' imprisonment to be served by way of a Drug Treatment Order (‘DTO’) under s 18Z of the Sentencing Act 1991.
Notwithstanding the lenient treatment that the applicant has received from the courts throughout the past decade, the applicant has demonstrated, in my view, a complete incapacity to comply with the conditional non-custodial sentences that he has received. He was on bail when he is alleged to have committed the present offending. Prior to this breach of bail he has breached CCOs and Suspended Sentence Orders on numerous occasions, and at least twice has been convicted of committing an indictable offence whilst on bail.
In November 2011 and December 2019, he was convicted of failing to answer bail. His criminal record indicates repeated instances of non-compliance with the DTO imposed in September 2016 spanning a period of one year and nine months. In short, the applicant has consistently failed to comply with court orders imposed upon him throughout his criminal history. Whilst I accept that the applicant’s family has the best intentions to support and accommodate the applicant, this support has been available to the applicant throughout his life and has done nothing to mitigate the risk that he has presented to the community over the last decade.
I cannot conceive of conditions that would ameliorate, to an acceptable level, the risk of committing further offences or the risk of failure to answer his bail. I accept that by refusing bail, the applicant will likely be detained in custody for a not insignificant period of time before trial, although in my view it would be, if he were found guilty, less than any likely sentence that may be imposed.
That said, I am afraid that the conclusion that bail must be refused is inescapable and the application is refused.
‑ ‑ ‑
0
0
0