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Supreme Court of Victoria |
Last Updated: 25 September 2020
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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DATES OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW — Application for bail — Applicant charged with Schedule 1 offences ——Youthful applicant — Significant prior criminal history — Release on supervised bail program supported by Youth Justice — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Ms E Clark
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James Dowsley & Associates
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For the Respondent
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Mr A Grant
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Office of Public Prosecution
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1 This is an application for bail by Abrhm Chol (the ‘applicant’).
2 On 16 February 2020, the applicant was arrested and charged with aggravated home invasion, theft of a motor vehicle (three counts), theft, assault with a weapon (three counts), reckless conduct endangering life, possessing a drug of dependence, committing an indictable offence whilst on bail, armed robbery, and recklessly causing injury (the ‘Hadden matters’).
3 All charges relate to an incident alleged to have occurred the same day, involving a home invasion and armed robbery of a number of vehicles from a residence in Greensborough. Those vehicles were subsequently used to joyride between Greensborough and Abbotsford, giving rise to a police pursuit.
4 The applicant is alleged to have participated in the alleged offending alongside three co-accused, William Afath, Yoro Deng and Patress Makieng.
5 At the time of the alleged offending, the applicant was on bail for charges of theft, handling stolen goods (two counts) and committing an indictable offence whilst on bail (the ‘Hamalainen matters’). He was arrested and charged with these offences on 6 February 2020 and released on police bail the same day.
6 The applicant is accused of committing a Schedule 1 offence under the Bail Act 1977 (Vic) (the ‘Act’), namely, aggravated home invasion.[1] As a result, the parties accept that bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[2]
Procedural history
7 The applicant has been refused bail twice at the Melbourne Magistrates’ Court on 4 March 2020 and 24 April 2020. On the first occasion, bail was refused on the basis that the applicant had failed to demonstrate exceptional circumstances. On the second occasion, a different magistrate was satisfied of exceptional circumstances but refused bail on the basis of unacceptable risk.
8 The Hamalainen matters are next listed for mention on 17 June 2020 at the Ringwood Magistrates’ Court, and the Hadden matters are next listed for committal on 8 March 2021 at the Melbourne Magistrates’ Court.
The co-accused
9 All co-accused are currently on remand. Mr Afath has an application for bail listed at the Melbourne Magistrates’ Court on 22 May 2020. Mr Deng and Mr Makieng have not applied for bail.
The alleged offending
10 The prosecution case is that, at approximately 7:10 am on 16 February 2020, the applicant and three co-accused attended a family residence in Greensborough. The complainants’ were asleep in their home at the time, along with their three adult sons.
11 It is alleged that the applicant and co-accused attempted to enter the home by opening windows and doors at the rear of the premises. The father, having awoken from the noise, observed the four men attempting to enter the house and shouted at them to leave. One of the men responded by arming himself with a shovel found in the complainants’ backyard and repeatedly struck a glass door at the rear of the house until it smashed. The father attempted to hold the door shut during this time and was hit to the left side of his chest with the shovel and small fragments of glass when the door was broken.
12 The applicant and co-accused then entered the house and proceeded towards the living room, variously armed with the shovel, knives and screwdrivers. They surrounded the father, who shouted, ‘Call the police’, causing one of his sons and a neighbour to call 000.
13 The four men demanded the phones, wallets and car keys from the occupants. While demanding the password to the mother’s phone, one of the men allegedly raised a knife to her throat.
14 The four offenders left the house with a jewellery box containing 10 watches, an Apple iWatch, three Apple iPhones, three Seiko watches, $276.55 in cash, a purse, bank cards, and driver’s licences belonging to members of the family. They also took three sets of car keys.
15 The applicant and Mr Makieng used a set of the keys to enter a Holden Commodore, while Mr Deng entered a Honda Civic, and Mr Afath took a Holden Astra. All three vehicles were then driven away from the residence.
16 The cars were observed by several witnesses driving erratically and at fast speed, causing bystanders to call 000. When the applicant, Mr Makieng and Mr Deng reached Abbotsford, the Holden Commodore and Honda Civic collided. They parked the cars shortly afterwards. The three men walked towards the intersection of Gipps Street and Russell Street, where they allegedly discarded the stolen jewellery box of watches and an iWatch under a vehicle. Upon sighting a police car nearby, the three men attempted to run away but were arrested a short time later.
17 The applicant, who was effectively on his own at the time of his arrest, was searched. Police located a sum of cash believed to belong to the complainants and a ziplock bag of methylamphetamine in his jacket pocket. He was transported to the Melbourne West Police Station where he provided a ‘no comment’ record of interview and was subsequently charged and remanded in custody.
18 Mr Deng was arrested with one of the complainant’s mobile phones in his possession, while Mr Makieng was located at a Collingwood apartment in possession of a 20 cm kitchen knife, together with an Apple iPhone, three Seiko watches, a purse, and bank cards and driver’s licences taken from the complainants’ address. Both men provided no comment when arrested and interviewed. They were each charged with aggravated home invasion, theft of a motor vehicle (three counts), theft, assault with a weapon (three counts) and reckless conduct endangering life.
19 The Holden Astra was found damaged and abandoned 1.3 km from Mr Afath’s home on 19 February 2020. He was arrested on 21 February 2020 and found in possession of an Apple iPhone, in addition to $320 cash and other items. During his record of interview, Mr Afath stated that he was at home at the time of the alleged offending. He was charged with aggravated home invasion, theft of a motor vehicle (three counts), theft, assault with a weapon (three counts), reckless conduct endangering life, committing an indictable offence whilst on bail, and handling stolen goods.
20 The Holden Commodore and Honda Civic were each located by police and taken for forensic examination, the results of which are presently outstanding. In the course of the informant’s evidence, the Court heard that the results may yet be four to six months away.
21 Fingerprints were located on a spare wheel recovered from a residential street nearby to the complainants’ residence. It is alleged that the four men had earlier abandoned a different vehicle after a collision caused a flat tyre, and the fingerprints are said to belong to Mr Deng.
22 Dash camera footage from the Holden Commodore was recovered, showing the erratic driving of that vehicle and the Honda Civic during the incident, while analysis of the applicant’s and Mr Afath’s phone records indicate that, broadly speaking, both men were in the vicinity of the alleged offending on 16 February 2020. However, at the time of the home invasion, the best that can be said is that the applicant’s mobile phone connected to a cell tower in McLeod, which is some five kilometres from the complainants’ residence.
The applicant
23 The applicant is 19 years of age. He has a diagnosed intellectual disability with intellectual functioning in the extremely low range. He also has a history of substance use, including use of cannabis and Xanax.
24 Prior to being on remand, he resided in Burnside Heights with his mother and six siblings. He moved to Australia from Sudan with his mother and siblings at the age of two. As a result, he did not know his father, who stayed behind in Sudan and subsequently died in 2012.
25 For a man so young, the applicant has a most serious history that is of some considerable consequence in this application. The applicant has a criminal history from the Children’s Court comprised of convictions and findings of guilt for offences of aggravated burglary, armed robbery, theft, affray, assault in company, and theft of a motor vehicle. He has been sentenced on a number of occasions to periods of detention within a Youth Justice Centre. The present remand period represents the applicant’s first time in adult custody.
26 While subject to a youth parole order from June to December 2019, the applicant was engaged in employment on the Metro Tunnel Project and reportedly earned praise for his performance in that role. However, in the period following the conclusion of that order up until the time of the alleged offending, he was not engaged in employment or schooling.
27 As stated, the applicant was on bail in the Hamalainen matters at the time of the alleged offending in this matter. He was also subject to a good behaviour bond imposed by the Bendigo Children’s Court on 13 January 2020 for one charge of resisting an emergency worker on duty.
The applicable legislation
28 The applicant is entitled to bail unless the Act requires the Court to refuse bail.[3] As stated, in the present application, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[4] The burden of satisfying the Court as to the existence of exceptional circumstances rests with the applicant.[5] If so satisfied, the Court must still consider whether it is satisfied that the applicant does not pose an unacceptable risk if granted bail.[6]
29 In considering whether exceptional circumstances exist, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act.[7]
30 In order to reach the threshold of exceptional circumstances, the circumstances relied upon by the applicant ‘must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’.[8] Exceptional circumstances may be established by reason of a single exceptional circumstance, or through a combination of factors, including personal factors pertaining to the applicant, the strength or weakness of the prosecution case, undue delay in bringing the matter to trial, or unusual features of the alleged offending or investigation.[9]
31 In Re Diab [2020] VSC 196, Beach JA, sitting in the Trial Division of this Court, summarised the ways in which the COVID-19 pandemic may be relevant in establishing exceptional circumstances. His Honour found that the following propositions have emerged:
(1) Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.(2) The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
(3) The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
(4) In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.[10]
32 In addition, this Court has previously considered that the youth of an applicant, especially when facing an extended period of remand in adult custody, is of some weight in determining whether exceptional circumstances have been made out. This is particularly so when combined with other factors, including weaknesses in the prosecution case, delay, or vulnerability in custody.[11]
33 If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the ‘unacceptable risk test’.[12] That is, pursuant to ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant would, if released on bail –
(i) endanger the safety or welfare of any person; or(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
34 In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
35 Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.[13]
The applicant’s contentions
36 In her submissions, Ms Clark, appearing for the applicant, relied upon the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail.
Youth and vulnerability in custody
37 Ms Clark contended that the applicant is vulnerable in custody, especially in an adult prison, as a result of his youth and intellectual disability. I understand that those matters are not in contention.
Delay and onerous conditions of custody
38 It was submitted that the applicant intends to plead not guilty to the present charges, which will require the matter to proceed through committal and, potentially, trial. Ms Clark submitted that the finalisation of the matter will be subject to significant delays as a result of COVID-19. As I earlier stated, the committal hearing is listed for 8 March 2021, which is some 10 months away. Counsel indicated that the trial is unlikely to be heard in 2021 and, if bail were refused, the applicant may spend at least two years in pre-trial custody.
39 It was also submitted that COVID-19 has also created more onerous conditions in custody as the prisons have been the subject of lockdowns and prisoners are also concerned for their own safety and that of their families. Counsel submitted that these conditions weigh more heavily on the applicant because of his age and intellectual disability.
Accommodation and ties to the jurisdiction
40 Counsel on behalf of the applicant submitted that the applicant has support and stable accommodation with his family. If granted bail, the applicant proposed to return to his family’s home in Burnside Heights, where he was residing at the time of the alleged offences. Counsel for the applicant contended that his mother and older siblings, can provide additional supervision and be a pro-social influence on him.
Availability of Youth Justice supervised bail and other supports
41 On behalf of the applicant, it was submitted that he responds well to supervision and support, and has a number of supports available in the community should he be granted bail.
42 The Court was provided with two Youth Justice reports, dated 17 April 2020 and 12 May 2020, that assessed the applicant as a suitable candidate for Youth Justice supervised bail. The program would incorporate referrals to a drug and alcohol service, and an employment service.
43 Mr Woollard, a Youth Justice case manager, gave evidence in the course of this application. He was the applicant’s youth parole worker in 2019 and would continue to be his case manager. In his evidence, Mr Woollard stated that the applicant demonstrated positive engagement with Youth Justice in the past and appeared motivated to resume that engagement. Mr Woollard acknowledged that, due to COVID-19 restrictions, supervision is primarily conducted over the phone, but he stated that Youth Justice have still had ‘relative success’ supervising others this way over the last few months.
44 The applicant reportedly told Mr Wollard that he considers employment as a protective factor for him, such that he is keen to return to work and support his family. Mr Woollard told the Court that, notwithstanding current restrictions impacting employment opportunities, the applicant has been accepted by Skills Reconnect, which supports young people with significant learning difficulties or barriers to employment. Mr Woollard stated that the applicant has expressed an interest in becoming an electrician, and Skills Reconnect would assist him by arranging a pre-apprenticeship and employment in that field over the course of six to 18 months.
45 The applicant also has an active plan with the National Disability Insurance Scheme (‘NDIS’). Mr Woollard gave evidence that a Disability Justice worker, Yoko Akele, has facilitated a referral to Charis Mentoring, which will allocate a mentor to the applicant five hours per week. His report detailed that the mentoring program would provide peer support, social and communication connections, and independent living skills. In his evidence, Mr Woollard conceded that their outreach abilities are limited because of COVID-19, but the applicant’s mentor can still meet with him in person.
Strength of the prosecution case
46 In relation to the prosecution case, counsel for the applicant submitted that it is largely circumstantial. Ms Clark submitted that there is no identification evidence and the witnesses were unable to provide a description beyond ‘young, tall, African male in dark clothing.’ There is also no DNA evidence from Greensborough residence, and other DNA and fingerprint testing remains outstanding.
47 As to the risk the applicant would spend more time on remand than the likely sentenced to be imposed if convicted, it was conceded on behalf of the applicant that a mandatory minimum sentence of three years applies to the principal charge of aggravated home invasion. However, in the written materials filed in support of the application, it was submitted that there are ‘special reason’ considerations that are relevant to the applicant pursuant to s 10A of the Sentencing Act 1991 (Vic), such that the estimated pre-trial custody of two years may exceed the possible sentence.
Prior criminal history
48 Counsel for the applicant submitted that he has no prior convictions in the adult jurisdiction and no negative bail history. However, as I have already indicated, he does have a very poor record in the Children’s Court.
Unacceptable risk
49 Finally, counsel submitted, on behalf of the applicant, that any risk his release on bail may pose can be mitigated to an acceptable level through the provision of support from Youth Justice and the imposition of appropriate conditions of bail, including that he complies with the directions of Youth Justice and a curfew, and that he does not associate with any of the co-accused.
The respondent’s contentions
50 Mr Grant, on behalf of the respondent, largely conceded that the applicant’s age, the potential delay and the impact of COVID-19 on custodial conditions were sufficient to establish exceptional circumstances. However, he maintained that the application was still opposed on the basis that the applicant is an unacceptable risk of endangering the safety or welfare of any person, or of committing an offence whilst on bail.
51 For that reason, I will only briefly review the matters raised in response to the applicant’s submissions on exceptional circumstances.
Strength of the prosecution case
52 In the written materials, the respondent did not make any concessions in relation to the strength of the prosecution case, noting that the case must be considered in its proper context, notwithstanding the outstanding DNA and forensic examination results.
Delay and likely sentence
53 Mr Grant submitted that, if convicted of the alleged offending, there is a high probability the applicant will receive a substantial period of imprisonment, such that it is not likely that his time on remand will exceed any likely sentence.
Stable accommodation and family support
54 It was further submitted by counsel that many of the personal factors relied on by the applicant were in existence at the time of the alleged offending. This includes that the fact that he was residing at the proposed bail address with his mother and siblings. Mr Grant contended that this did not deter him from engaging in serious criminal activity and that he does not have adequate supervision in that environment.
Unacceptable risk
55 With respect to the applicant’s risk of endangering the safety or welfare of others if granted bail, counsel for the respondent submitted that the alleged offending was random, with the complainants being unknown to the applicant and co-accused.
56 Mr Grant noted that the applicant has prior recent convictions for violent and dishonesty-related offending, including seven priors for aggravated burglary, six for affray, and one for home invasion over a relatively short period of time. It was also submitted that Victoria Police intelligence indicates he is a member of street gang ‘BBG’, who engage in violent offending that is flaunted on social media platforms. Although, when giving his evidence in this application, informant Haddon was unable to identify anything of that nature that specifically related to the applicant.
57 The respondent, through counsel, also submitted that the applicant is an unacceptable risk of committing an offence whilst on bail. It was put that, at the time of the alleged offending in the Haddon matters, the applicant had only recently competed parole and had just been placed on bail for offending in the Hamalainen matter, which, in Mr Grant’s submission, did not serve to deter the applicant from allegedly committing the present offences.
58 Finally, it was submitted by respondent’s counsel that there are no conditions of bail that can minimise these risks to an acceptable level.
Analysis
59 In my view, given the earlier finding of the Magistrates’ Court on 24 April 2020 and the respondent’s reasonable concession, the real issue in this application is the question of whether or not there is a unacceptable risk. However, I will indicate that I am satisfied that the applicant has demonstrated the existence of exceptional circumstances on the basis of the strength of the prosecution case, the delay and the vulnerability of the applicant regarding his age and intellectual disability.
60 The prosecution case against the applicant is very much circumstantial. There is no direct evidence of his involvement in these matters as at this stage either by identification or by scientific analysis. That situation, of course, may change but, at the present time, I can only deal with what is before me. It cannot be said that the case against him is a strong case by any means.
61 The delay, occasioned by the present COVID-19 pandemic, is likely to result in a significant period of pre-trial custody based on current estimates. The finalisation of this matter may be some two years from the date of arrest, which is common ground between the parties. Bearing in mind the age of the application, two years is a very long time for him to spend in adult prison, particularly in circumstances where I must take into account matters of his rehabilitation and his potential diverted into lawful activities through community supervision and support.
62 Having regard to the applicant’s submissions and the evidence of Mr Woollard on this application, the applicant has available to him a significant support structure through Youth Justice, the NDIS and his family that would assist in managing his risk and, under similar circumstances, he has performed well under that supervision.
63 It does seem to me that, in the present circumstances, the applicant should at least on a provisional basis be admitted to bail on his own undertaking with a number of conditions.
64 I propose that I will adjourn the further hearing of this application to 22 May 2020 so that I can assess his compliance with the conditions, which I will ask submissions from the parties to assist me in formulating now.
Judicial monitoring
65 In accordance with my proposal to judicially monitor the applicant’s compliance with his grant of bail, the matter returned on 22 May, 5 June and 24 July 2020. At each hearing, I was informed by both parties that there were no allegations of breaches and that the applicant has been progressing positively. At the final hearing on 24 July, I determined that judicial monitoring was no longer required and that the provisional grant of bail on 15 May 2020 would remain in place as a final order.
Conclusion
66 The applicant was admitted to bail on his own undertaking with the following conditions:
[1] Bail Act 1977 (Vic) sch 1 item 4 (‘Bail Act’). In addition, he is charged with committing Schedule 2 offences under the Act, namely, committing an indictable offence whilst on bail and armed robbery, while on bail for another Schedule 2 offence, specifically, committing an indictable offence whilst on bail.
[4] Ibid ss 4AA(1), 4AA(2)(c)(i), 4A(1A).
[6] Ibid ss 4D(1)(a) and 4E.
[8] Re CT [2018] VSC 559, [64] (Champion J), citing with approval Re Sam [2017] VSC 91, [22] (Beach JA).
[9] Re CT [2018] VSC 559, [65], citing with approval Re Fairest [2015] VSC 375, [17]-[18], [22] (Weinberg JA).
[10] Re Diab [2020] VSC 196 [38] (citations omitted).
[11] See eg Re Scott [2011] VSC 674; Andreevski & Anor v The Queen [2009] VSC 115; Re Gloury-Hyde [2018] VSC 393; Cf Re Sheen [2015] VSC 486; Re Ghanim [2019] VSC 358.
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2020/580.html