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[2020] VSC 806
Supreme Court of Victoria
2020-12-01
BEACH JA
Original judgment source is linked above.
CRIMINAL LAW - Bail - Aggravated carjacking, theft of motor vehicle (3 charges), reckless conduct endangering life, prohibited person possessing or using firearm (2 charges), threat to kill, possessing ammunition without a licence, possessing a drug of dependence (3 charges), aggravated burglary, theft and committing an indictable offence while on bail - Requirement to show exceptional circumstances - Whether exceptional circumstances made out - Whether an unacceptable risk of endangering the safety or welfare of any person, interfering with witnesses, or committing an offence while on bail - Exceptional circumstances not made out - Unacceptable risk - Bail refused - Bail Act 1977, ss 1B, 3AAA, 4A, and .
1 The applicant is currently facing the following charges:
2 The applicant is alleged to have committed the aggravated carjacking, with which he is charged, on 19 November 2019. On 4 December 2019, at approximately 3.45 am, the applicant was charged with an unrelated matter and released on bail. Within the space of 3 hours, after being released on bail, the applicant is alleged to have committed the aggravated burglary with which he is charged. Later on the same day, the applicant was arrested and charged with the offences he now faces. He has been in custody since that time.
3 On 18 September 2020, the applicant made an application in the Magistrates' Court for bail. Having been accused of a Schedule 1 offence within the meaning of s 3 of the Bail Act 1977 ('the Act') - aggravated carjacking - pursuant to s 4A of the Act, the magistrate was required (and this Court is required) to refuse bail 'unless satisfied that exceptional circumstances exist that justify the grant of bail'.
4 The magistrate refused bail, not being satisfied that the applicant had shown exceptional circumstances, and also concluding that there was an unacceptable risk that the applicant would commit an offence while on bail, or endanger the safety or welfare of any person.[1] On 9 November 2020, the applicant filed an application for bail in this Court.
5 The aggravated carjacking and the aggravated burglary are the two principal offences alleged against the applicant. For present purposes, it is sufficient to summarise the circumstances in which those offences are alleged to have occurred.
6 On 19 November 2019, at 9.30 pm, Mohammed Rezaie and Danie Tang ('the complainants') were sitting in a parked car when it is alleged that the applicant approached from behind in a black Volkswagen Jetta. The applicant got out of the Volkswagen, and entered the back seat of the complainants' vehicle while carrying what is variously described as a 'sawn-off long arm' or 'sawn-off shotgun'. The applicant demanded that the complainants give him their 'phone and everything you have'. During the course of this, he is alleged to have discharged the firearm towards the windscreen. The complainants gave him some cash and a mobile phone. The applicant demanded that they get out of the vehicle, which they did. He then drove the vehicle away, allegedly yelling out the window as he did so, 'I have your licence. I know where you live. Don't call the police or I'll come back and finish you off'. The Volkswagen followed the applicant as he drove away from the scene in the complainants' vehicle.
7 The carjacking is alleged to have been committed by the applicant with three co-offenders: two of his sisters, Nazo Kakar and Sarah Azimi;[2] and the applicant's girlfriend, Yazhi Wang.
8 On 3 December 2019, at 11.15 pm, the applicant was arrested on an unrelated charge and taken to the Narre Warren Police Station. He was eventually charged and bailed from the police station at approximately 3.45 am. A short time later (and before 6 am on that morning) the applicant is alleged to have entered an apartment at the Quest Hotel in Narre Warren. There were two people asleep in the apartment. It is alleged that the applicant entered the apartment via a sliding door and stole a laptop, a pair of headphones, a blue cooler bag and a pair of grey tracksuit pants.
9 Later that day, the applicant was arrested at premises in Cranbourne North. Police executed a search warrant at those premises. The prosecution case is that, in the course of searching these premises, police located items stolen from the Quest Hotel apartment.
10 The applicant is 32 years of age. He was born in Afghanistan, and is one of six children. When he was approximately two years old, his family fled Afghanistan to Pakistan. They resided in Pakistan for two years, before being sponsored by a family member to move to Australia. The applicant was approximately four years old when he arrived in Australia.
11 The applicant left secondary school midway through Year 11. After leaving school, he was gainfully employed for approximately eight to ten years in a variety of roles: in a car parts warehouse, in a bakery, in an abattoir, as a forklift operator and as a crane operator.
12 The applicant has a substance abuse problem. He commenced using cannabis at age 15, later using methylamphetamine and a number of other substances. The evidence on the bail application was that he is currently on methadone in respect of a heroin addiction.
13 The applicant has a criminal history dating back to 2004. His prior offending has included robbery, armed robbery, being a prohibited person in possession of a firearm, recklessly causing injury, possessing cartridge ammunition without a licence or permit, possessing a controlled weapon without reasonable excuse and dealing with property suspected of being the proceeds of crime.
14 In respect of charges which were dealt with in 2014,[3] the applicant was examined by a psychologist, Dr Aaron Cunningham. Dr Cunningham produced two reports: the first dated 2 July 2014; and the second dated 25 August 2014. Dr Cunningham measured the applicant's intelligence, and determined him to have an IQ of 67. In his second report, Dr Cunningham said that this meant that the applicant performed better than 1 per cent of his age peers, where 99 per cent of his age peers would do better.
15 Subsequently, in June 2018, the Department of Health and Human Services certified that the applicant has an intellectual disability within the meaning of the Disability Act 2006, the applicant having:
16 The application for bail is supported by an affidavit of the applicant's solicitor, Melainie Vinton. In her affidavit, Ms Vinton deposed to the various background matters to which I have referred. She also deposed to what she referred to as 'serious triable issues with the prosecution case'. That said, on the hearing of the bail application, counsel for the applicant did not seek to assert that the prosecution case was a weak one. What was submitted was that, in counsel's words, 'there are serious issues to be tried in the appropriate forum and there's a fair way to go in relation to that'.
17 In her affidavit, Ms Vinton deposed to the availability of a 90-day residential rehabilitation program at DayHab private hospital, which is ready to accept the applicant into its program if bail is granted. Ms Vinton's affidavit exhibited a body of material from DayHab. Further material from DayHab, produced after Ms Vinton affirmed her affidavit, was also tendered on the bail application. Additionally, evidence was given on the bail application from the intake and assessment officer for DayHab, Justin Vincent.
18 Mr Vincent's evidence was that he assessed the applicant on two occasions (6 August 2020, and again on 24 November 2020). He found the applicant to be 'suitable to be accepted into the DayHab Addiction Treatment Centre 90-day Residential Rehabilitation Program'. In evidence, Mr Vincent described the program in some detail, the steps that DayHab would take to keep the informant informed should the applicant not comply with the program or breach bail conditions, and steps that could be taken at the conclusion of the 90-day program (a possible extension of the program or a referral to transitional housing).
19 While the applicant was referred to DayHab by his solicitors, the applicant's family has paid a $9000 deposit to secure his place in treatment. Mr Vincent described the applicant as presenting to him as someone who was 'at that point of desperation for trying to do something else'.
20 In her affidavit, Ms Vinton deposed to the following combination of factors as being relied upon to establish exceptional circumstances:
21 In relation to the issue of unacceptable risk, Ms Vinton deposed to the following matters:
23 The respondent opposed bail. In doing so, it relied upon an affidavit affirmed by a solicitor employed with the Office of Public Prosecutions, Benjamin Nankin. In his affidavit, Mr Nankin exhibited a number of documents, including a document, prepared by the informant, containing her reasons for opposing bail.
24 The respondent opposed bail on the basis that the applicant has not demonstrated the existence of exceptional circumstances justifying a grant of bail. The respondent also opposed bail on the basis that there were 'no conditions that could satisfactorily ameliorate the unacceptable risk that the applicant would endanger the safety and welfare of any person; and commit an offence while on bail'.
25 The relevant principles governing an application for bail where exceptional circumstances have to be shown are not in dispute. They were conveniently summarised in Re Diab[7]as follows:
Sections 4A and 4D of the Act require the Court, as step one, to consider the exceptional circumstances test; and then to move, as step two, to the unacceptable risk test. At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act. Moreover, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B, which include:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty;
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker, Beale J, citing Kaye J in DPP v Muhaidat, referred to the question of exceptional circumstances in the following terms:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[8]
26 Having taken into account all of the surrounding circumstances, including those which are specifically referred to in s 3AAA of the Act, I am not satisfied as to the existence of exceptional circumstances that justify a grant of bail in this case.
27 In oral argument, counsel for the applicant, when asked to list the matters relied on in combination as constituting exceptional circumstances, said:
I rely upon the availability of the residential rehabilitation service. I rely upon the delay, the likely delay involved in this matter running through to trial which it will ... , and I rely upon conditions in custody being more onerous and that needs to be seen within the light of [the applicant's] intellectual disability.
28 As to delay, the applicant's committal is fixed for 9 February 2021. The applicant's submission was that a trial would likely be in 'late 2021 or possibly the next year'. While that was described as a 'very lengthy delay', both the applicant's counsel, and the applicant's solicitor in her affidavit, specifically eschewed any submission that the delay might cause the applicant to serve a longer period in custody than the likely sentence to be imposed upon him should he be found guilty.[9] They were right so to do.[10]
29 In both Ms Vinton's affidavit and oral submissions, I was referred to statements in previous cases about particular periods of delay. Specifically, I was referred to Re Biba,[11] where Beale J held, in the circumstances of that case, that a delay of two years and seven months was inordinate and, of itself, constituted exceptional circumstances.[12] Any period of delay in any case, however, must be looked at in the circumstances of the particular case. So, for example, in Re Application for Bail by 'MO',[13] Weinberg AP said that a period 'greatly in excess of two and three quarter years', while being 'exceptional, and unacceptable', did not amount to exceptional circumstances which justified the grant of bail, in the circumstances of that case.[14] In any event, at present it is only possible to say that the likely period in custody, if bail is not granted, is of the order of two years from arrest to trial.
30 The existence of the residential rehabilitation program at DayHab is a matter telling in favour of a grant of bail. As has been said before, it is not only in the interests of an accused that substance abuse problems be addressed and treated, it is also in the wider community's interest that this occurs where possible. On its own, however, the mere existence of a place in a treatment program would not usually amount to exceptional circumstances. More would be needed. In the present case there is a dearth of material suggesting that if the applicant was afforded the opportunity he seeks he would likely engage well with the program, or be well supported outside the program so as to give some confidence that a grant of bail would have some beneficial outcome for the applicant or the community.
31 The applicant's measured intellectual disability also tells in favour of a grant of bail. The significance of his disability, however, is difficult to assess on the material filed on this application. The reports relied upon were medico legal reports prepared six years ago. While DHHS has certified the applicant as having an intellectual disability, there is no material from any treating medical practitioner or case worker describing the significance of this disability. Moreover, the applicant's employment history as revealed in the material does not suggest an intellectual disability which has substantial effects on the applicant's functioning. That said, I am prepared to accept that the applicant's intellectual functioning could make his time in custody more onerous than it might be for a person of average intellect.
32 In the course of argument, reference was made to conditions in custody which have been altered because of the COVID-19 pandemic. In Re Diab, this Court summarised the relevance of COVID-19, so far as bail applications are concerned, as follows:
(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.[15]
33 While the COVID-19 pandemic is a matter to be taken into account when considering whether there are exceptional circumstances justifying a grant of bail, its relevance in this case is more to the likely timing of a trial (to which I have already referred) and the conditions in which the applicant will be held in custody pending his committal and trial.
34 The factors relied upon by the applicant do not amount to exceptional circumstances justifying a grant of bail, either individually or in combination. That conclusion requires me to refuse bail. For completeness, however, I should also say that, even if I concluded that there were exceptional circumstances justifying the grant of bail, the respondent has established that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety and welfare of any person and commit an offence while on bail.[16] In this respect, I note that the carjacking alleged against the applicant was committed a mere four months after he completed an earlier term of imprisonment in July 2019. Moreover, the aggravated burglary was committed merely hours after being bailed and released in respect of unrelated offending. More generally, the applicant's criminal record persuades me that there are no conditions of bail which I could impose which would make the risk he poses of committing further offences, if he is released on bail, acceptable.
[1] See s 4E(1)(a)(i) and (ii) of the Act.
[2] As to the circumstances of Azimi's alleged offending, see Re Azimi [2020] VSC 118 (Tinney J).
[3] See DPP v Kakar [2014] VCC 1441 (Judge Gaynor).
[4] Ms Vinton also referred to 'additional factors' relied upon by the applicant in respect of both exceptional circumstances and unacceptable risk: see her affidavit at [37]-[46].
[5] Relied upon as one of the 'additional factors' on both issues (exceptional circumstances and unacceptable risk) at [37] of the affidavit.
[7] [2020] VSC 196 ('Re Diab').
[8] Ibid [34]-[36] (footnotes omitted).
[9] Cf s 3AAA(1)(k) and (l) of the Act. See also Re Roberts [2020] VSC 793 [23].
[10] Cf s 10AD of the Sentencing Act 1991, referred to in Ms Vinton's affidavit at [36].
[15] Re Diab [2020] VSC 196 [38].
[16] See s 4E(1)(a)(i) and (ii) of the Act.
IN THE MATTER of the Bail Act 1977
IN THE MATTER of an Application for Bail by OMAR KAKAR