Tomas v Director of Public Prosecutions
[2016] VSC 476
•15 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0016
IN THE MATTER of an Application for Bail by Riko Tomas
Between:
| RIKO TOMAS | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 15 March 2016 | |
DATE OF JUDGMENT: | 15 March 2016 | |
CASE MAY BE CITED AS: | Tomas v DPP | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 476 | |
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CRIMINAL LAW – Application for bail – Charges of attempted murder, affray and other offences against the person – Applicant alleged to be part of group of men who attended business premises to remonstrate with another – While there, a co-accused fired a handgun, grazing the head of complainant – Whether applicant has shown cause why detention in custody not justified – Whether applicant, if granted bail, would present an unacceptable risk of offending, failing to answer bail or of interfering with witnesses – Applicant on bail on other charges – Weak case against applicant on attempted murder – Significant risk that he may spend more time in custody than any sentence likely to be imposed if convicted of a lesser alternative offence – Prior convictions, including several for failing to appear on bail –Bail granted with two sureties, daily reporting to police and other conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Ristivojevic | Tricarico & Marcevski Lawyers |
| For the Respondent | Mr P Pickering | John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Riko Tomas.
He is charged with attempted murder, affray, various other offences against the person and committing an offence while on bail.
On 15 October 2015, several men, including Mr Tomas, attended a car parts business in Campbellfield. One of the men in the group (not Mr Tomas) produced a handgun and fired three shots – one into the ceiling and two other shots near others. One of those shots, which was fired at close range, grazed the head of one of the complainants. Another co-accused in the group head-butted another of the complainants.
Mr Tomas has been in custody since 19 November 2015, following his arrest. He was refused bail in the Magistrates’ Court the same day. He failed to satisfy the magistrate that he had shown cause why his detention in custody was not justified. Further, the magistrate was satisfied that, if bailed, there would be an unacceptable risk that Mr Tomas would commit an offence, endanger the safety of the public, interfere with witnesses or fail to answer bail. On 23 November and 21 December 2015, Mr Tomas was refused bail again by the same court on the same bases. On 8 February 2016, bail was again refused on the basis that no new facts or circumstances existed. No further applications have been made since.
Mr Tomas is due to face a committal hearing in the Magistrates’ Court on 16 May 2016. It is expected that a trial would not be listed in this Court until at least the end of this year.
On 15 March 2016, I granted Mr Tomas’s application and admitted him to bail, albeit on strict conditions, including two sureties of $50,000 and daily reporting to police. I gave ex tempore reasons for my decision but indicated I would publish detailed reasons at a later time. These are those reasons.
Summary of allegations
In summary, the prosecution allege the following.
At about 4:00 p.m. on 15 October 2015, Akram Karoumi and his friend Daod Hanna-Ishmoni attended Botani Spare Parts, in Campbellfield, to inquire about a car part. The business was owned and operated by Dheyaa Hanna, who was present at the time. Also present were Mr Hanna’s employees Fadi Yousef and Steven Morked, Wisam Askaro, who was using the car hoist at the workshop, and three other men who were carrying out work at the premises.
A dispute arose between Mr Karoumi and Mr Hanna about a car part not being available for sale. The argument became heated. Mr Hanna asked Mr Karoumi and Hanna-Ishmoni to leave. A “push-and-shove” ensued. Mr Askaro and another man intervened. As he and Mr Hanna-Ishmoni left, Mr Karoumi threatened to return with others and kill all persons present.
About 15 minutes later, three vehicles containing seven men arrived in succession at Botani Spare Parts. Mr Karoumi’s sons, Sanar and Salwan Ghanim, were in the first car. Mr Tomas and Mr Karoumi were in the second car, together with brothers Rimon and Edmon Hurmez. Mr Hanna-Ishmoni arrived alone in the third vehicle.
CCTV footage taken from two cameras at the premises shows the men, including Mr Tomas, exiting the vehicles and running into the premises. Sanar Ghanim entered first, closely followed by Salwan Ghanim. A few seconds later, Mr Karoumi, Rimon and Edmon Hurmez and Mr Tomas followed them. Finally, a short time later, Mr Hanna-Ishmoni joined them.
Sanar Ghanim took a handgun from his shorts and racked its slide mechanism on the weapon before entering the building. Upon entering, he fired the handgun into the ceiling. Mr Hanna retreated further into the premises. He was followed by Sanar Ghanim. At about this time, Mr Tomas and the other men entered the premises and followed Sanar Ghanim further inside but out of the CCTV camera’s view.
It is alleged that Sanar Ghanim saw Mr Hanna fleeing towards the rear of the premises and fired a second bullet from the handgun in his direction and past the left side of Mr Yousef’s head.
The CCTV shows that Mr Karoumi attempted to hold Sanar Ghanim back to prevent him from pursuing Mr Hanna, which caused him to trip over a tyre and fall backwards. Mr Karoumi then observed Mr Askaro standing next to the car hoist and approached him with a clenched fist before head-butting him to the face. The men then moved out of CCTV camera’s view.
It is alleged that Mr Karoumi held Mr Askaro by the scruff of the neck and punched him numerous times to the face. Sanar Ghanim joined Mr Karoumi and held the handgun to the right side of Mr Askaro’s head while punching him in the face with his other hand. While Mr Askaro attempted to move the gun away from his head, Sanar Ghanim discharged the gun a third time and the bullet grazed the right side of Mr Askaro’s head, causing an open wound that immediately started to bleed. Mr Askaro felt light-headed and laid down on the floor underneath the car hoist.
The other men then reappear in the CCTV footage some seconds later, before moving out of the camera’s view again and then leaving the premises. Mr Tomas was the first to leave (on his own), about 30 seconds after he first entered the building. The remaining men subsequently exited the premises over the next 45 seconds.
Prior to leaving, Sanar Ghanim threatened to return and burn down the building if anybody reported the matter to police.
The prosecution case is that Mr Tomas, along with Salwan Ghanim and the Hurmez brothers, accompanied Sanar Ghanim and Mr Karoumi to the premises to assist them in exacting retribution on Mr Hanna and Mr Askaro for the earlier altercation. The prosecution allege that these men assisted Sanar Ghanim and Mr Karoumi by remaining in close proximity to them, preventing others from intervening and also failing to intervene and stop the incident from occurring. Similar charges to those faced by Mr Tomas have been laid against all of the men who attended the premises that afternoon, save for Mr Hanna-Ishmoni.
On 23 October 2015, eight days after the initial incident, Botani Spare Parts was firebombed. Four Molotov cocktails were thrown at vehicles located at the front of the buildings. Nine cars were damaged. While investigations are continuing, Mr Tomas is not charged with any offence arising out of this incident.
Applicant’s personal circumstances
Mr Tomas was born in Iraq and is 36 years old. He is one of nine children. He came to Australia with his family in 1995 at the age of 16. They came here as refugees to escape persecution in Iraq (they are Christian) after Mr Tomas’s father was murdered.
Mr Tomas did not complete secondary education in Iraq or Australia. Upon his arrival in Australia, he worked in a bakery for about two years. Since then, he has had sporadic employment as a labourer in the building industry.
Mr Tomas has two partners and eight children, all of whom reside together in the same home. He has rented that house for the past two-and-a-half years. He assists in the day-to-day care of his children.
It was proposed that, if released on bail, Mr Tomas would reside with his partners and children at the family home in Broadmeadows.
Mr Tomas has a number of prior convictions. These include property offences, drug-related offences, possession of prohibited weapons and five instances of failing to appear in answer to bail. Mr Tomas has previously spent a period in prison, which resulted from a combination of a sentence imposed and the restoration of a sentence for an intensive correction order that he had breached.
Mr Tomas is currently on bail in relation to offences allegedly committed in November 2014 which concern trafficking and possession of drugs and related allegations.
Mr Tomas is a heavy user of methylamphetamine (‘ice”) and has a long history of daily drug use.
Other evidence and submissions
Mr Pickering, who appeared for the Director, indicated that the application was opposed on two bases.
First, it was submitted that Mr Tomas had failed to show cause why his detention in custody is not justified. He must show such cause because he is charged with an indictable offence alleged to have been committed while he was at large awaiting trial for another indictable offence[1] and because he is charged with an indictable offence which involved another person who, in the course of committing the offence, is alleged to have used a firearm.[2]
[1] See s 4(4)(a) of the Bail Act 1977 (Vic).
[2] See s 4(4)(c) of the Bail Act 1977 (Vic).
Secondly, it was submitted that, if granted bail, there would be an unacceptable risk that Mr Tomas would commit a further offence, endanger others, interfere with witnesses and/or fail to answer bail.[3]
[3] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
In particular, Mr Pickering submitted that his long history of drug use, his prior criminal history, the fact that he was on bail at the time he allegedly committed the offences the subject of this application and that he had failed to appear on bail on five previous occasions ought to satisfy the Court that there is an unacceptable risk that Mr Tomas would commit another offence while on bail and that he would fail to answer bail. Mr Pickering pointed to the fact that Mr Tomas has already served a term of imprisonment when he breached an intensive corrections order in relation to, amongst other things, drug-related offences.
Ms Ristivojevic, who appeared for Mr Tomas, submitted that her client had shown cause why his detention in custody was not justified and that the risks of the kind relied on by the prosecution were not at an unacceptable level. She relied on several factors.
First, counsel pointed to the fact that Mr Tomas has ties to the jurisdiction, as he lives here with his family and children.
Secondly, counsel submitted that the case on attempted murder is weak. I agree. Having examined the CCTV footage closely and having considered other aspects of the evidence before me, I am of the view that there is no evidence that Mr Tomas was aware of or was in a position to observe the gun produced at the premises by Sanar Ghanim. As counsel also pointed out, the CCTV footage shows that Mr Tomas was inside the premises for only about 30 seconds and that he was the first in the group to leave – and on his own. On the material before me, I think it is very unlikely that Mr Tomas would be convicted of attempted murder. A conviction for a lesser offence – such as affray – is far more likely on the evidence.
Thirdly, counsel submitted that, in those circumstances, and given that there would be at least 12 months between his arrest and the conclusion of a trial, there was a real risk that Mr Tomas would spend more time on remand than the custodial sentence that would be likely to follow were he convicted of a lesser charge such as affray. Again, I agree.
Fourthly, Ms Ristivojevic pointed to particular aspects of Mr Tomas’s personal circumstances that, she submitted, might explain his earlier failures to appear on bail. In his report tendered to the Court, forensic psychologist Dr Aaron Cunningham opined that psychometric testing performed on Mr Tomas indicated that his cognitive functioning was in the intellectually impaired range. Ms Ristivojevic submitted that I should be satisfied that Mr Tomas is a person whose abilities to process and retain information, organise his life and keep appointments and commitments are impaired, and that this explains his previous convictions for failing to appear while on bail, rather than those failures being reflective of a deliberate avoidance of the court’s jurisdiction. She also submitted that, if Mr Tomas were granted bail, help from Disability Services would be of assistance to him in complying with bail conditions. This is consistent with the views expressed by Dr Cunningham to the effect that, “if granted … bail, Mr Tomas would benefit from further mental health and Disability Services assessment” and that “[e]ngagement with community mental health and Disability Services support would improve his prospects for rehabilitation”.
While all of that may be so, on these issues, I prefer Mr Pickering’s submission that such explanations for Mr Tomas’s previous failures to appear are speculative, and that the simple reality is that his record shows several failures to appear, whatever the cause. Further, I accept Mr Pickering’s submission that the material put before the Court as to the possibility of Mr Tomas meeting with Disability Services upon his release is, to use his turn of phrase, “too half-baked” to be of any value. All of that said, Mr Pickering conceded, quite fairly in my view, that there is no suggestion in Mr Tomas’s history of failing to appear that he was seeking to flee the jurisdiction or that he would do so now if released on bail. Rather, as I understood him, Mr Pickering’s point here was that Mr Tomas had not shown a great deal of interest in complying with court orders, which included those concerning bail (and some previous sentencing orders).
Fifthly, Ms Ristivojevic submitted that there is no evidence that, between the incident in Campbellfield on 15 October 2015 and the date of his arrest of 19 November 2015, Mr Tomas had made any attempts to contact any of the witnesses or persons involved in the case. She further submitted that Mr Tomas does not have a history of perverting the course of justice or interfering with witnesses and that he certainly does not have a history of violence. She also submitted that there was no evidence connecting Mr Tomas with the subsequent firebombing which occurred at the Botani Spare Parts premises. As I understood it, Mr Pickering did not take issue with these submissions.
Sixthly, I accept Ms Ristivojevic’s submission that the imposition of sureties and strict bail conditions will ensure that Mr Tomas answers his bail and will otherwise reduce the risk of his committing further offences to something short of an unacceptable level.
On the question of sureties, I heard sworn evidence first from Mr Tomas’s cousin Aysar Mashu, who works as a plasterer. Mr Mashu was prepared to put up a $50,000 interest in his home, in which he had substantial equity. He promised that he would ensure Mr Tomas attends court and “does the right thing”. Mr Tomas’s brother James Kakos, a builder, also gave sworn evidence before me. He too was prepared to put up an interest in his home (in which he has nearly $200,000 equity), for “whatever” amount was required. He promised that he would tell his brother to comply with his bail conditions, including attending court, and that he would advise the police if there were a breach of those conditions. While both witnesses had had their own brushes with the law, I accepted their evidence and assurances.
On the question of conditions of bail, Mr Pickering submitted that, if I were minded to grant bail, there should be two sureties and several other conditions, including: (a) a residential condition; (b) a requirement that Mr Tomas surrender any passports; (c) a prohibition on leaving Victoria or attending points of international departure; (d) a prohibition on contacting prosecution witnesses or associating with his co-accused; (e) a reporting condition; (f) a prohibition on using drugs; and (g) a prohibition on attending within one kilometre of the address of the incident. Ms Ristivojevic did not oppose any such conditions, including daily reporting.
Conclusions and orders
I turn now to my conclusions.
I am satisfied that Mr Tomas has shown cause why his detention in custody is not justified and (ignoring the burden of proof for a moment) that the risk posed by granting Mr Tomas bail is not unacceptable. There are several related reasons.
First, as I indicated earlier, on the material before the Court, I regard this as a weak case against Mr Tomas in respect of the charge of attempted murder. I also accept that, if following a trial towards the end of this year Mr Tomas were to be convicted of a lesser offence, such as affray, were he not granted bail, he may well end up serving more time in custody than the sentence ultimately imposed on him. In my view, that factor alone goes a long way to showing cause why his detention in custody is not justified.
Secondly, I am of the view that the strict conditions of bail discussed with counsel add to the argument that cause has been shown and also go to offsetting what would otherwise be an unacceptable risk of Mr Tomas failing to answer bail or committing further offences.
Thirdly, having sureties in place also mitigates the concern that I have about Mr Tomas failing to appear in answer to his bail and of otherwise breaching his bail. I am satisfied that both Mr Mashu and Mr Kakos understood the importance of the obligations and the consequences of their proposed undertakings with respect to being a surety for Mr Tomas. I take the view that in this case it is appropriate for there to be two sureties each in the amount of $50,000.
Accordingly, Mr Tomas is admitted to bail on the following conditions:
1) There are to be two sureties, each in the amount of $50,000.
2) Mr Tomas is to reside at [his residence] in Broadmeadows in the State of Victoria.
3) He is to surrender any passports or travel documents in his possession to the informant within 24 hours of being granted bail and is not to apply for any other such documents.
4) He is not to attend any points of international departure.
5) He is not to leave the State of Victoria.
6) He is not to contact any prosecution witness, either directly or indirectly, other than the informant.
7) He is to report to the officer in charge (or his or her nominee) of the Broadmeadows Police Station each day between 6:00 a.m. and 9:00 p.m.
8) He is not to associate with any of his co-accused.
9) He is not to use any drug of dependence without authorisation.
10) He is not be at or within one kilometre of 18 Jessica Road, Campbellfield.
11) He is to appear at the Magistrates’ Court at Melbourne on 16 May 2016 and thereafter as directed by that court.
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