Applicant v Respondent

1. Mr David Nagy, the applicant, it is alleged, broke into a house on 6 May 2025 with four other people, one of whom was armed with a shotgun and all of whom were wearing gloves and face coverings. It is alleged that they arrived in a stolen car, broke down the front door, and that one of the invaders used the shotgun to threaten an inhabitant of the house. Dissatisfied with the amount of money they obtained from that inhabitant, they broke into the garage where another inhabitant was hiding. Unfortunately for them, that inhabitant had his own shotgun which he pointed at the invaders, who then fled to their stolen car. The inhabitant with the shotgun shot at the car as the invaders drove away, breaking its windscreen. Victoria Police have charged the applicant with aggravated home invasion,[1] theft of a car,[2] possessing an unregistered longarm[3] and possessing cartridge ammunition while unlicensed.[4]
2. The material before me suggests that the inhabitants were themselves drug dealers. One of the invaders is said later to have told a covert police operative that they stole half a kilogram of cocaine, three to five ounces of ketamine and $45,000 to $50,000 in cash, and that as well as a shotgun which was pointed at one of the inhabitant's head, they also had with them a Beretta handgun that was not produced during the alleged offending.
3. On 23 May 2025, the police executed a search warrant at an address in Endeavour Hills and found, among other things, a phone, a bag of cannabis and a machete. The applicant was present at the address at the time and was arrested. He accepted that the phone and cannabis was his. The police say that on the applicant's phone was a video of him holding a black handgun. When asked about this, the applicant said that he woke up at the address, saw the gun on a table, picked it up and took photographs of him holding it. He has been charged with possessing an unregistered handgun,[5] stealing a Beretta 9MM Luger,[6] and possession of the cannabis.[7] He has been in custody since that day.
4. The applicant denied any knowledge of, or that he was involved in, the invasion in his record of interview. However, the police allege that, whilst placed in a holding cell when police suspended the interview to make further inquiries, he told a police covert operative that he and three associates had been paid $25,000 to attend an address and to put a gun to a male's head to scare him, that they had broken into the home, and that search warrants had been executed at his residence where he was 'caught with a "Berretta"'. Further, the police say that they located on the applicant's phone (as well as the video of him handling the handgun) Snapchat and Instagram messages to the effect that they were meant to be paid $20,000 for the job but were instead given only $5,000 and the Beretta (which was said to be worth $25,000 on the black market) and that he now owned a gun, and photographs of him with a large amount of cash in $50 notes.
5. The applicant was refused bail by the Magistrates' Court, and now applies for bail to this Court.
6. Because aggravated home invasion is a Schedule 1 offence,[8] I am required to refuse bail unless the applicant can persuade me that 'exceptional circumstances exist that justify the grant of bail'.[9] In considering whether exceptional circumstances exist that justify the grant of bail, I must take into account the 'surrounding circumstances'.[10] The surrounding circumstances include whether the accused would be sentenced to a term of imprisonment and, if so, whether the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment, the nature and seriousness of the alleged offending, the strength of the prosecution case, the accused's criminal history, the extent to which the accused has complied with the conditions of any earlier grant of bail, the availability of treatment or bail support, the view of the alleged victims, and the applicant's 'personal circumstances, associations, home environment and background.'[11]
7. If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then grant bail unless I'm satisfied that there is an 'unacceptable risk' that the applicant would, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[12] When considering whether a risk of that type is an 'unacceptable risk', I must take into account, again, the surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[13]
8. I am required to apply these tests having regard to the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime, but also having regard to the importance of the presumption of innocence. [14] This I take to include the proposition that, speaking generally, persons should not be incarcerated unless and until they have been found guilty of committing the relevant crimes.

B Are there exceptional circumstances that justify the grant of bail?

1. The exceptional circumstances test may be demonstrated by a single circumstance or combination of circumstances united to produce a situation that is something other than ordinary, that is exceptional, that justifies the grant of bail. The test is stringent, but not impossible to meet.[15]
2. The alleged offending is self-evidently serious. Any home invasion is serious, and this is the more so because the inhabitants were at home and the invaders had at least one firearm with them.
3. The applicant committed an assault in 2022 on another student while at school, for which he was given, and successfully completed, a diversion order. He has no other criminal history, and has not before been in custody. Associated with this, he has no history of failing to comply with any conditions of bail, and this is his first time in custody.
4. The applicant has struggled with mental health and substance abuse issues which, it seems, have gone untreated. He has, it seems, abstained from illicit substances while on remand for the last 88 days.
5. The applicant has the support of his parents. He was working in, and still has available to him, full-time employment with his mother at fruit orchard in the Yarra Ranges. He also assists his mother at a stall at their local market. He was to commence an electrical pre-apprenticeship TAFE course at Dandenong in June 2025, but was unable to do so due to his being held on remand. His mother gave evidence before me and was an impressive witness. She worked full time in her nursery business. She was aware of her son's marijuana habit but was not aware that he took other drugs. She was not supportive of his behaviour. She confirmed that he had been planning to commence a pre-apprenticeship. She said, on oath, that if the applicant were released on bail on conditions including that he reside with her and work with her and respect a curfew, then she would advise the Informant were the applicant to breach those conditions. The prosecution accepted that she was a genuine person and it was not suggested that she, or her husband, were other than law-abiding people.
6. Although, as noted above, it seems that the applicant made admissions to a covert police operative, he said in his record of interview that those admissions were false and that he was 'big-noting' himself. In support of this, it may be said that:

(a) There are some inconsistencies between the detail contained in the admissions and what must in fact have happened, which could support a conclusion that the admissions were false;

(b) The applicant consistently asserted in his record of interview that he had been present (and asleep) at a co-accused's house at the relevant time and that CCTV from those premises would confirm this and he invited the police to review that CCTV. By the time the police recovered CCTV from those premises, the relevant days had been recorded over, I infer in the usual course;

(c) The invasion took place at approximately 11:10pm and the group left in the stolen car. The CCTV from and surrounding the invaded house does not allow for any identification of the applicant. Snapchat messages sent at approximately 11:43pm that night from the applicant's phone to a co-accused's phone, who it was clear was or had been in the car, say that the applicant 'came back to' the co-accused's house and enquire as to 'how long yous gonna be'. This, it may be argued, is consistent with the applicant not being present at the home invasion. Consistently with this, there is no data connecting the applicant's phone with the location of the home invasion, and it was not suggested that his phone had been turned off;

(d) On the other hand, the prosecution case will be, it seems, that the applicant had been dropped off by the group of alleged offenders at that residence after the home invasion had taken place sometime before 11:43pm. The prosecution also rely on Instagram messages apparently sent by the applicant the following afternoon in which he stated that 'we' were 'doing [something] else last night' and that 'we were meant to get paid 20k for the job instead gave us 5k and a beretta worth 25k on the market'.

1. What a jury will make of all this is not clear. The applicant seems to have been closely connected with the events of the night of 6 May 2025, and although the prosecution case cannot be described as weak, there is a triable issue as to whether the applicant was in fact present when the home invasion took place. I should note that the prosecution sensibly accepted that for the purposes of the application for bail it was the charge of aggravated home invasion that mattered.[16]
2. If found guilty of aggravated home invasion, s 10AC of the Sentencing Act 1991 requires the court to impose a term of imprisonment and to fix a non-parole period of not less than 3 years unless a 'special reason exists' not to do so and so if the applicant is found guilty a significant custodial sentence could be imposed. That said, there is no suggestion that the applicant was the person carrying the shotgun, and he was only 18 years old at the time. Assuming he is under the age of 21 at the time of any sentence, he would be a 'young offender' and there is a prospect that a 'youth justice centre order' might be made under s 32 of the Sentencing Act 1991 if the sentencing judge were satisfied that 'exceptional circumstances exist'. If such an order were made, the applicant would not be incarcerated in an adult prison. This raises the prospect that if bail is not granted, the applicant will spend a substantial period of time on remand in an adult facility notwithstanding that he may not be sentenced to any term of imprisonment in an adult facility.
3. In this context, it is noteworthy that, according to Youth Justice, there is good reason to believe that the applicant has been assaulted while on remand. He told Ms Bridget McGeoch, who was assessing his suitability for Youth Justice's involvement, that he had experienced other prisoners 'standing over him and taking his canteen' and trying to force him to pay for 'protection'. He said he had been assaulted 'on a couple of occasions'. Information obtained by Youth Justice from Corrections establishes that the applicant has been observed with a bruise under his right eye, and was on another occasion seen to be punched by his cell mate. The details of these incidents remains somewhat obscure, but I accept counsel for the applicant's submission that the applicant would be a vulnerable young person in an adult prison environment if bail is not granted.
4. The Informant said, and I accept, that the victims of the home invasion (particularly the two inhabitants who did not have the shotgun) are afraid for their safety if the applicant were to be granted bail.
5. Finally, and importantly, the applicant has obtained a report from Youth Justice. Youth Justice has assessed the applicant's situation and recommends supervised bail. Ms McGeoch from Youth Justice has met with the applicant and his mother and has liaised with various service providers. She opines that 'the experience of custody has significantly changed [the applicant's] attitude and he wants to change and behave for his parents' and that he wants to cease his use of illicit substances. In her assessment, the applicant is a suitable candidate for the Youth Justice Supervised Bail program. If bail is granted, Youth Justice will require him to attend at weekly supervision appointments, the first of which has been provisionally scheduled for 20 August 2025. Through this process, Youth Justice will:

(a) Facilitate the applicant's obtaining treatment for substance abuse. It has already referred the applicant to the Youth Support and Advocacy Services and an assessment has been provisionally scheduled for 20 August 2025;

(b) Assist in the provision of treatment of the applicant's mental health generally. Youth Justice has already referred the applicant to Youth Justice Mental Health Initiative. The applicant has informed Youth Justice that he is 'agreeable to obtaining a mental health care plan through a General Practitioner' that would lead to his receiving treatment from a psychologist;

(c) Assist the applicant with avoiding 'negative peers'. Youth Justice has referred the applicant to Youth Justice Community Support Service, which provides 'generalised support' and mentorship and assists young people to engage in pro-social activities. No date has yet been arranged for a first appointment;

(d) Assist the applicant with his wish to commence further vocational training by enrolling in a 10-week course, commencing on 6 October 2025, in Certificate II in Electrotechnology (Pre-Apprenticeship); and

(e) Report to the Informant in the event that the applicant demonstrates serious non-compliance with its recommendations.

1. Having regard to all these factors, I am satisfied that exceptional circumstances exist that justify the grant of bail. I place particular weight on the applicant's youth, his lack of a criminal history or any history of failing to answer bail, the fact that he has not previously had treatment for his drug use and mental state, the support and employment opportunities offered by his parents, the prospect that he can commence a pre-apprenticeship, and the recommendations of Youth Justice that he was suitable for supervised bail and the associated treatment and programs that it can provide or facilitate.

1. The same factors fall to be considered when determining whether there is an unacceptable risk that the applicant, if released on bail, would commit a Schedule 1 or Schedule 2 offence, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody.
2. The issues that are of most concern are the facts that:

(a) The applicant appears, at least at one stage, to have had in his possession a handgun that has not been recovered by the police and also at least knows people who have access to other weapons; and

(b) On his phone were found Snapchat messages sent on the evening of 7 May 2025 in which the applicant says in quick succession: 'Shush bro I own a gun now'; 'Don't make me use it nigga'; 'Nah joking'; and 'But I swear I could say that to anyone now.'

1. This raises a risk that the applicant might, if granted bail, engage in gun-related violence. I can understand why the inhabitants of the home that was invaded would feel afraid and oppose the grant of bail. On the other hand, the Snapchat messages are consistent with an (ill-advised) joking bravado, rather than the applicant having an actual intention to use the weapon.
2. As noted above, the availability of conditions that may be imposed to ameliorate a risk must be considered. The applicant has indicated, in writing and in the course of argument, that, if bail were granted, the applicant would agree to conditions whereby he must:

(a) Reside with his parents at their house and obey a curfew between 9 or 10pm and 6am each day, unless in the company of one or more of his parents, and produce himself at those premises if requested to do so by a member of the police;

(b) Not associate with any co-accused;

(c) Not communicate with any witnesses other than the Informant and further not attend the addresses where the alleged victims reside;

(d) Comply with the lawful directions of Youth Justice and engage in the treatment programs and referrals provided by it; and

(e) Enrol in the pre-apprenticeship course, and otherwise work full-time with his mother unless he is engaged in that course or other treatment.

1. On the material before me, and if appropriate conditions are imposed that as a matter of substance have the applicant living at home and engaged productively in work and study and not communicating with the co-accused or any witnesses other than the Informant, and having regard to the surrounding circumstances referred to above and in particular the applicant's lack of a criminal record and lack of any past failures on his part to comply with conditions of bail, I am not satisfied that the risk that the applicant might commit a further relevant offence or endanger the safety or welfare of any other person or interfere with witnesses is an unacceptable risk.

1. I will grant bail on conditions that have the effect discussed above.
2. I will hear the parties further on the precise formulation of those conditions.

[1] Crimes Act 1958 (Vic) s 77A.

[2] Ibid s 74.

[3] Firearms Act 1996 (Vic) s 7B(2).

[4] Ibid s 124(1).

[5] Firearms Act 1996 (Vic) s 7B(2).

[6] Crimes Act 1958 (Vic) s 74AA.

[7] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73.

[8] That is, an offence specified in Schedule 1 of the Bail Act 1977 (Vic).

[9] Ibid, s 4A(1A).

[10] Ibid s 4A(3).

[11] Bail Act 1977 (Vic) ss 3AAA, 4A, 4E.

[12] Ibid s 4E(1).

[13] Ibid s 4E(3).

[14] Ibid s 1B(2).

[15] See, eg, Re Gentile [2021] VSC 467 [43] (Taylor J); Roberts v The Queen [2021] VSCA 28, [34]-[49].

[16] The reason being that any sentence imposed on the applicant if found guilty of the other charges would be far outweighed by the period of time that he would spend in custody were he not granted bail, and that this would, along with his youth and lack of prior convictions, clearly amount to exceptional circumstances that justify the grant of bail.