Applicant v Respondent

1. Notwithstanding the parties' agreement that the new bail laws do not apply, there is, in my view, a clear distinction between a Notice of a bail application and the making of a bail application. The Notice itself refers to a bail application which is 'sought to be made'. It flags a future event. The giving of the Notice is not itself the making of the bail application. If someone withdrew their Notice, no one could sensibly contend that they had nonetheless made a bail application.
2. I also note what Fox J said in Re Tiburcy:[2]

Pursuant to s 34(22) of the Act, the amendments apply to 'an application made, or an appeal commenced, under this Act on or after [25 March 2024], regardless of when the offence is alleged to have been committed.' The applicant filed a 'Notice of Intention to Make an Application for Bail' ('Notice') on 13 March 2024. The Notice is addressed to the Prothonotary, the respondent ('informant'), and the Director of Public Prosecutions ('Director'). In my view, the Notice serves a number of pragmatic purposes - it alerts the Court that an application will be made; it alerts any other affected person (here, the Director and the informant) of what is to occur; it enables the Court to fix a timetable for filing of affidavits and other material; and it allows the Court to fix a date for the hearing of the application at a time suitable to the parties and the Court. However, the bail application itself is made on the day of the hearing, and not earlier.

1. I am fortified in my conclusion by Fox J's analysis in Re Tiburcy.
2. Consequently, I must have regard to the following guiding principle in determining this application:

1B (1AA) The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.

1. Before turning to the bail tests, it is convenient to begin with a chronology.
2. On 16 March 2001, the applicant was born. He is now aged 24.
3. On 22 May 2017, the County Court at Melbourne sentenced the applicant to 3 years' detention for offences of theft of a motor vehicle, culpable driving causing death and negligently causing serious injury.[3]
4. On 23 April 2020, the County Court at Melbourne sentenced the applicant to a total effective sentence of 3 years and 6 months' detention for an aggravated carjacking with an imitation firearm and an attempted aggravated carjacking with an imitation firearm; 527 days were reckoned as time already served.[4]
5. On 10 February 2022, the County Court at Melbourne on appeal sentenced the applicant to a total effective sentence of 1 year and 8 months' imprisonment with a non-parole period of 12 months for multiple offences including three counts of theft of a motor vehicle and possessing a prohibited weapon; 218 days were reckoned as time already served. There were also three counts of committing an indictable offence whilst on bail for which the applicant was convicted and discharged.
6. On 19 October 2022, the applicant was released on parole.
7. On 6 December 2022, the applicant was arrested and charged by Informant O'Brien with respect to the alleged theft of a Mercedes from a home in Sandhurst ('the O'Brien charge').[5] The applicant was released on bail.
8. On 24 January 2023, whilst on parole and on bail for the O'Brien charge, and notwithstanding that he was wearing an electronic monitoring bracelet, the applicant allegedly stole a Porsche Macan from a home in Brighton and committed numerous driving offences in the course of a police pursuit, including driving at a speed and in a manner that was dangerous. It is alleged that he drove at speeds of over 150 km/h and on the wrong side of the road, placing other persons in grave danger ('the Sheridan charges').[6] The affidavit in support of the present bail application indicates that the Sheridan charges will likely be a plea of guilty.
9. On 25 January 2023, the applicant was arrested, interviewed and remanded in custody in relation to the Sheridan charges.
10. On 27 January 2023, the applicant's parole was cancelled and he was ordered to serve the balance of the sentence of imprisonment imposed on 10 February 2022.
11. On 28 February 2023, it is alleged that the applicant, with intention to pervert the course of justice, made a call from Fulham Prison to an associate, asking him to tell police that he (the associate) had been the driver in relation to the Sheridan charges and offering him money as an inducement.[7]
12. On 11 June 2023, the applicant's sentence of imprisonment expired.
13. On 6 July 2023, the applicant was bailed on the Sheridan charges.
14. On 31 August 2023, it is alleged by Informant Le that the applicant, whilst on bail in relation to the Sheridan charges and the O'Brien charge, trafficked in cocaine. He delivered 244.3 grams of cocaine (80% pure) to covert operatives in exchange for $50,000 on behalf of his co-accused Abaker. During the transaction, the applicant allegedly advised the covert operatives that the cocaine was better than 'A' grade quality.
15. On 12 September 2023, it is alleged by Informant Le that the accused, whilst on bail, stole a BMW, drove whilst disqualified and trafficked in a large commercial quantity of cocaine whilst being in possession of a loaded firearm and wearing body armour. It is alleged that covert operatives agreed with Abaker to purchase 1 kilogram of cocaine for $165,000. Later in the day, the applicant was arrested in possession of the cocaine, a loaded Glock handgun and wearing a bulletproof vest. In his recorded police interview with an independent third person present, the applicant admitted that his role was to deliver drugs and receive payment of $165,000.
16. On 13 September 2023, the applicant was arrested, charged and remanded in custody on the Le charges.[8]
17. On 15 September 2023, the applicant was interviewed regarding an incident on 19 August 2023 where it is alleged by Informant Taualii that, whilst the applicant was on bail for the Sheridan and O'Brien charges, the applicant was driving unlicensed, pulled in front of an Uber driver, stopped, got out of his vehicle and approached the Uber driver and punched him multiple times in the head and spat on him (the 'Taualii charges').[9]
18. On 13 February 2025, an application for bail by the applicant in respect of Sheridan's and Le's charges was made in the County Court. It was proposed that the applicant be bailed to Odyssey House. The application was rejected by Judge Harper. Her Honour was not satisfied that exceptional circumstances were made out.
19. On 15 May 2025, the applicant's two outstanding matters in the summary stream are listed before Magistrate Burchill (O'Brien's charge and Taualii's charges). Magistrate Burchill is apparently aware of the Supreme Court proceedings and, if bail is granted, will make orders (such as a deferral of sentencing) that follow this Courts order.
20. On 11 August 2025, the applicant's trial on the Le charges is listed to commence. The Informant is not available for the first week of that trial, but the respondent submitted that it will not be necessary for the trial to be adjourned.
21. On 10 November 2025, the applicant's trial on Sheridan's charges is listed to commence.

EXCEPTIONAL CIRCUMSTANCES AND UNACCEPTABLE RISK

1. I turn then to the issues of exceptional circumstances and unacceptable risk.

1. The parties rightly agreed that it was incumbent on the applicant to establish that exceptional circumstances exist which justify a grant of bail. This flows from the fact that the applicant is charged with, inter alia, trafficking in a large commercial quantity of cocaine. If the applicant discharges that burden, the parties agreed that it was for the respondent to establish unacceptable risk.

1. Evidence was given by a representative of Odyssey House, Anna Tesoriero.
2. She testified that as from 7 April 2025, there is a bed available for the applicant at Odyssey's Benalla Campus.
3. She conceded that the applicant could abscond from the campus, but he could not do so without Odyssey quickly becoming aware of that fact.
4. She gave an undertaking that if the applicant breached his bail conditions, the Informant and his lawyers would be notified immediately.
5. I have no reason to doubt that Odyssey would honour that undertaking.
6. Evidence was also given by the applicant's father, Haitham Alsowafi. He is willing to put up a surety of $124,000 based on the equity that he and his wife have in the family home. His wife, who also attended court, consents.
7. The applicant's father indicated that he did not support a bail application until a bed became available for his son at Odyssey House.

1. The applicant relied on a combination of circumstances to establish exceptional circumstances:
   • first, the availability of residential drug rehabilitation at Odyssey;
   • second, a surety of $124,000 offered by his father;
   • third, the applicant's youth;
   • fourth, the alleged weakness of the prosecution case in relation to proving the necessary intent for trafficking in a large commercial quantity of cocaine. The applicant relies on psychological evidence that the applicant is of low intelligence[10] and the fact that the amount of cocaine allegedly trafficked on 12 September 2023 was only slightly above a large commercial quantity;
   • fifth, delay;
   • sixth, the time already spent on remand; and
   • seventh, the possibility of the applicant receiving a drug and alcohol treatment order, assuming the Drug Court of the County Court is satisfied that a sentence of imprisonment of no more than 4 years is appropriate.[11]
2. The respondent submitted that the above combination of circumstances did not amount to exceptional circumstances.
3. The respondent submitted that despite the evidence of the applicant's low intelligence, the prosecution case on the main drug charge was not weak - a jury could safely infer from the circumstances of the offending, including the amount of money involved, the possession of the gun and the armoured vest, that the applicant had the necessary intent for trafficking in a large commercial quantity of cocaine.
4. In the alternative, the respondent submitted that the applicant was an unacceptable risk to commit further offences, endanger members of the public and interfere with witnesses.

1. I accept the applicant's submission that the prosecution may struggle to prove the necessary intent on the charge of trafficking in a large commercial quantity of cocaine, but it seems to me that the prosecution has a strong case on the Sheridan charges and the rest of the Le charges, including the alternative offence of trafficking in a commercial quantity of cocaine. Notwithstanding the applicant's youth, it is likely, having regard to the seriousness of the charges, his criminal history and the aggravating circumstances that the applicant was on parole and bail at the time of the Sheridan charges and was on bail at the time of the Le charges, that the applicant will receive a sentence of imprisonment well in excess of time spent on remand. Those matters are currently listed to be heard in August and November 2025, which is within an acceptable time frame. The applicant's history of breaching court orders is more extensive than that mentioned in the above chronology, but the breaches referred to in that chronology leaves me with little confidence that the applicant will abide by strict bail conditions. Psychologist Luke Armstrong in his report of 28 September 2024 refers to the applicant's many years of drug abuse (including his use of illicit drugs whilst in prison), his borderline intelligence, Post Traumatic Stress Disorder and Borderline Personality Disorder, which may all contribute to a reduction of his ultimate sentence but also increases the risk of him reoffending on bail. He was released on strict bail conditions in July 2023, which included drug and alcohol counselling, but he breached that grant of bail. The centre piece of the applicant's bail application was the fact that he would be bailed to a gold standard residential drug rehabilitation program (not having undergone residential drug rehabilitation before) and that one could have confidence that Odyssey would notify the Informant promptly of any breach of bail. Whilst that may be true, that does not mean that police would be able to apprehend the accused immediately or almost immediately if he absconded. There is a substantial risk in my view that he may abscond from the Odyssey program and engage in criminal behaviour that would place members of the public in grave danger, such as stealing a car and driving dangerously as he did in respect of the Sheridan charges. It should not be overlooked that the accused already has a prior conviction for culpable driving causing death. His many years of drug abuse also compounds the risk.
2. I am not satisfied that the combination of circumstances relied on by the applicant amount to exceptional circumstances which justify a grant of bail. Alternatively, I am satisfied, having regard to the applicant's history and the seriousness of the charges the subject of this bail application, that he is an unacceptable risk of committing further offences and of endangering members of the public if released on bail.

[1] Re Pham [2024] VSC 143. At footnote 5, Croucher J stated: 'As of the day of hearing this application, 25 March 2024, several amendments to the Bail Act 1977 (Vic) effected by the Bail Amendment Act 2023 (Vic) came into force (see s 2(2) of the latter Act), including the change in nomenclature from a surety to a "bail guarantor". However, since this application was commenced before the commencement date of the amendments, I continued to use the older nomenclature, and also considered the application under the previous provisions (see the transitional provisions in ss 34(22) and (23) of the Bail Act 1977 (Vic))'.

[2] [2024] VSC 163, fn 19.

[4] DPP v Alsowafi (Unreported, County Court of Victoria, CR-19-02246, sentenced on 23 April 2020 by her Honour Judge Marich).

[5] The applicant was charged with theft of a motor vehicle in contravention of s 74 of the Crimes Act 1958 (Vic) ('Crimes Act').

[6] The applicant was charged with the following 8 charges: dangerous driving whilst pursued by police (s 319AA Crimes Act); theft of a motor vehicle (s 74 Crimes Act); two counts of dangerous driving (s 64 Crimes Act); conduct endangering life (s 22 Crimes Act); driving whilst disqualified (s 30(1) Road Safety Act 1986 (Vic) (Road Safety Act)); commit indictable offence whilst on bail (s 30B Bail Act 1977 (Vic) (Bail Act)); and breach a term of parole (s 78A Corrections Act 1986 (Vic)).

[7] Charge 9 of the Sheridan matter, intention to pervert the course of justice (common law).

[8] The applicant was charged with the following 14 charges: trafficking a large commercial quantity of cocaine (s 71 Drugs Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act); traffick cocaine (s 71AC DPCS Act); possess a prohibited firearm (s 5(1) Firearms Act 1996 (Vic) (Firearms Act)); possess unregistered handgun (s 7B(1) Firearms Act); possess cartridge ammunition (s 124(1) Firearms Act); carry a loaded firearm in public (s 130(1A)(a) Firearms Act); carry a firearm concealed from view (s 132(2) Firearms Act); use body armour without exemption (s 8A(1)(d) Controlled Weapons Act 1990 (Vic); theft of a motor vehicle (s 74 Crimes Act); deal with proceeds of crime (s 194(2) Crimes Act); two counts of drive whilst disqualified (s 30(1) Crimes Act); and two counts of commit an indictable offence whilst on bail (s 30B Bail Act).

[9] The applicant was charged with unlawful assault (common law) and driving whilst disqualified (s 18(1)(a) Road Safety Act).

[10] Psychologist Luke Armstrong in his Report of September 2024 states: 'There is significant confidence in previous neuropsychological reports that he does not suffer with an ABI, and would not qualify for an Intellectual Disability, although certainly there is evidence to suggest borderline intellectual functioning'.

[11] See Sentencing Act 1991 (Vic), s 18Z.