Re Afram [2018] VSC 708 (19 November 2018)

1 The applicant applies for bail in respect of charges he faces for offending alleged to have occurred on 21 March 2017 ('the 2017 charges'). The charges arise from a violent home invasion which occurred in Bundoora. One of the charges is of aggravated home invasion, an offence which is contained within Schedule 1 of the Bail Act 1977 ('the Act'). As a result, it is common ground between the parties that bail must be refused unless I am satisfied that exceptional circumstances exist that justify the grant of bail.[1]

2 The applicant was arrested in respect of the current offences on 4 July 2017. He was charged and remanded in custody. On 11 October 2017, he made an unsuccessful application for bail in the Magistrates' Court. At a committal hearing on 11 January 2018, the applicant was committed for trial in the County Court on 11 charges. He made a further application for bail following the committal for trial. Bail was granted on stringent conditions, including a condition that he not use drugs of dependence. At an Initial Directions Hearing held in the County Court, the trial was set down for commencement on 20 August 2018.

3 On Wednesday 2 May 2018, the applicant was found in an unconscious state in a motor vehicle in the Melbourne CBD having overdosed on drugs. An ambulance and police were called, and the applicant was taken to St Vincent's Hospital. He was subsequently charged with trafficking multiple drugs, committing an indictable offence on bail, contravening bail conditions, and other offences ('the 2018 charges').

4 On 11 May 2018, the Office of Public Prosecutions made an application to the County Court for the revocation of the applicant's bail on the 2017 charges. Judge Hannan revoked bail on those matters.

5 On 16 May 2018, bail was granted to the applicant in respect of the 2018 charges. He was not released from custody, however, as he remained on remand on the 2017 charges.

6 On 22 May 2018, the applicant made an application for bail before her Honour Judge Hannan on the 2017 charges. Her Honour refused bail, finding that exceptional circumstances had not been established.

7 The applicant's trial on the 2017 charges commenced on 20 August 2018. A jury was empanelled on that day, but discharged on 21 August 2018 as a result of the prosecution having indicated its intention to rely on additional evidence of which no previous notice had been given. The trial was adjourned and re-fixed for 18 March 2019.

8 On 4 September 2018, the applicant applied for bail on the 2017 charges before Judge Gamble. In a very detailed and comprehensive decision which I have read, his Honour refused the application, not having been satisfied of the existence of exceptional circumstances justifying a grant of bail. Furthermore, his Honour indicated that if he was wrong in that conclusion, he would have been satisfied that there would be an unacceptable risk the applicant would commit further offences if released on bail.

9 The applicant has now been in custody for a significant period, and assuming his trial proceeds when it is listed, and takes the allotted 5 days, he will have spent 507 days in custody before the charges against him are resolved.

10 The 2017 charges represent very serious offending. The home invasion occurred at a residential address in Bundoora at which a man named Hassan Chaddoud, a second hand dealer, resided. At about 1.00 am on 21 March 2017, Chaddoud received a text message from a female acquaintance named Alicia[2], asking him if he was at home and she could come over. He told her she could come.

11 It is alleged that the applicant and two co-offenders named Pascuzzi and Kapitan attended at the address about one hour after this. The applicant knocked on the front door and Chaddoud opened the door, leaving the security door locked. The applicant demanded to be let in and Chaddoud refused. The applicant produced what is alleged to have been a silver handgun and told Chaddoud that if he did not open the door, he would jump through the window and shoot him. Chaddoud opened the door and the applicant and co-offenders entered the house. They followed Chaddoud to the office area where they demanded money and the keys to Chaddoud's Mercedes vehicle. The applicant then struck Chaddoud to the head with the handgun, and began punching and kicking him, causing Chaddoud to fall to the ground. Chaddoud was then kicked to the head by Pascuzzi while on the ground. He suffered a laceration to the back of his head, grazes and bruising and swelling to the right side of his neck.

12 The applicant ripped a gold necklace from around Chaddoud's neck and took an iPhone from a female friend of Chaddoud who was also present. Further items were stolen from a bedroom and a storage room of the house.

13 A male boarder in the house, Fayez Ismail, entered the house and asked what was going on. Pascuzzi approached him and said, 'Call the police and we'll shoot ya'.

14 Before leaving the house, the offenders yelled out to Chaddoud that they would be back.

15 Later that day, Alicia sent a text message to Chaddoud telling him not to go to the police, and that she would take care of things. Later still that day, a man alleged to be the applicant telephoned Chaddoud and a meeting was arranged in Thomastown.[3] The applicant returned some of the stolen items of property to Chaddoud.

16 Kapitan and Pascuzzi were arrested in April and May 2017 respectively. Both were charged and remanded in custody. In the end, both pleaded guilty to charges including aggravated burglary. They were sentenced to terms of imprisonment of 29 months with a non-parole period of 18 months.

17 On 4 July 2017, the applicant was arrested in a vehicle in Thomastown. He was in possession of a small bottle of GHB. A search of his premises revealed the presence of a stolen bicycle. Also located in his garage was a copy of Pascuzzi's Police Brief of Evidence. The applicant was interviewed, charged, and remanded in custody.

18 Section 1B of the Act reads, in part, as follows:

(1) The Parliament recognises the importance of -

(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;

(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

19 Section 4 of the Act reads:

A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.

20 Section 4AA of the Act sets out circumstances in which a 2 step test applies to the consideration of a grant of bail. Subsection (1) dictates that the 'exceptional circumstances' test applies to a decision whether to grant bail to a person accused of a Schedule 1 offence.

21 Section 4A of the Act has application where the 'exceptional circumstances' test applies. Subsection (1A) reads:

The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.

22 Subsections (2) and (3) of section 4A indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[4]

23 Section 4E of the Act reads:

(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that -

(a) there is a risk that the accused 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; and

(b) the risk is an unacceptable risk.

(2) The prosecutor bears the burden of satisfying the bail decision maker -

(a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and

(b) that the risk is an unacceptable risk.

(3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must -

(a) take into account the surrounding circumstances; and

(b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.

24 The authorities emphasise how difficult it may be to establish the existence of exceptional circumstances. For example, Justice Champion in Re CT[5], a case involving a bail application by a child, stated:

The Act does not define what may amount to exceptional circumstances. It is well established that, 'in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail.' It has been observed that 'the hurdle confronted by an applicant in establishing exceptional circumstances is a high one.' That having been said, it is not an impossible standard to reach.[6]

25 Priest JA in Re Gloury-Hyde[7] had this to say:

The concept of exceptional circumstances is an elusive one. But as Beach JA observed in Ceylan,[8] it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant. One matter that has often been regarded as important in this context, is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.

26 The applicant relies on a combination of the following factors to demonstrate the existence of exceptional circumstances:

(iii) The availability of in-house treatment for the applicant.

(iv) The high level of motivation of the applicant to rehabilitate himself and to abide by bail conditions.

(vi) The previous compliance by the applicant with court orders.

(vii) The fact the applicant has no prior convictions for violence.

(viii) The sentence likely to be imposed in this case.

27 In respect of the asserted weakness of the prosecution case, Mr Furstenberg submitted that for reasons he detailed during the application, which were also set out in detail in an outline of submissions filed on behalf of the applicant in the previous bail application in the County Court,[9] there were deficiencies in the prosecution case, and in particular, that the case on the main charge of aggravated home invasion was weak. On that score, it was submitted, in particular, that the evidence of the applicant possessing a handgun, as opposed to some other implement, at the time he allegedly entered the premises, was not strong.

28 On the question of delay, by the time the trial of this matter proceeds in March 2019, the applicant will have been on remand for 17 months. As for the period of this remand since the discharge of the jury on 22 August, Mr Furstenberg submitted that the reason for that event was significant, and to the advantage of the applicant. The jury was discharged due to the fault of the Crown in failing in its ongoing duty of disclosure. Whilst acknowledging this was an innocent failing by the Crown, it was submitted the reason for this additional period of delay made the overall period, in combination with other factors, exceptional.

29 As to the availability of in-house treatment for the applicant for his drug addiction, Mr Furstenberg called evidence from Denise Abadee, an experienced drug and alcohol counsellor who is the director of a private residential drug treatment facility in Elsternwick called the Wellbeing Planet. She gave evidence that a position is available for the applicant as an in-patient at the facility, that she has assessed him, and that she considers him to be highly motivated to do something about his long-term drug problem. She told the Court of the support and treatment which would be available to the applicant should he be bailed to the facility, of the high level of supervision and control there would be over him, and of the fact that were he to fail to abide by either the rules of the establishment, or his bail conditions, that the Wellbeing Planet would report any such failures to the respondent.

30 In respect of the level of motivation of the applicant to deal with his drug addiction and abide by bail conditions, Mr Furstenberg submitted that the overdose by the applicant which led to his current incarceration was a 'light bulb moment', and he has now firmly decided he wants to do something about his problem.

31 Mr Devlin for the respondent, relying on the outline of submissions on behalf of the respondent filed before the County Court bail application, and submissions made before me, emphasised the seriousness of the offending, pointing out that armed robbery and aggravated home invasion are both punishable by 25 years' imprisonment. He submitted that the crimes before the Court are serious examples of the crimes.

32 He took issue with the criticisms of the Crown case. He played to the Court some portions of the CCTV footage showing the three offenders at the front door of Mr Chaddoud's house, and of the assault upon Chaddoud by the offender alleged to be the applicant. Mr Devlin asserted that it is possible in the footage to observe the handgun in the hand of the applicant. At the very least, he can clearly be seen to be holding a silver implement of some sort. Mr Devlin submitted that in any event the failure of the prosecution to establish the item was a firearm as opposed to some other weapon would not be fatal to the aggravated home invasion charge.

33 All in all, Mr Devlin submitted, the prosecution case was not a weak one. Evidence proving the identity of the applicant and his possession of a handgun, made up of a combination of direct and circumstantial evidence, was strong

34 Mr Devlin touched on the prior criminal history of the applicant, noting that the firearms charges in 2014 were particularly serious.

35 In respect of the extent to which the applicant had complied with bail in the past, or had complied with court orders, the failure of the applicant to comply with the conditions of bail on which he was released on 11 January 2018 in this case was a very telling matter. Despite the stringent bail conditions and the imposition of a surety of $75,000, the applicant was unwilling or unable to comply with the bail, using drugs and committing serious drug offences whilst at large.

36 On the issue of delay, Mr Devlin accepted that it was unfortunate that the applicant would have spent 17 months on remand before the charges would be finalised, but pointed out that were it not for the fact that he had breached the previous bail undertaking, he would not be in custody at all.

37 Insofar as the overdose of the applicant on 2 July 2017 was relied upon as a light bulb moment, Mr Devlin made the point that the applicant's departure from hospital before the police could attend there and speak to him was not consistent with the overdose having had the effect upon him asserted by Mr Furstenberg.

38 Mr Devlin submitted that the applicant has not discharged the onus resting on him to prove exceptional circumstances. Furthermore, even were I to disagree with that and find there were exceptional circumstances, there was an unacceptable risk that the applicant would, if released on bail, endanger the safety of members of the public, or reoffend. As commendable as inpatient treatment for drug addiction may be, having the applicant undergo such treatment would not reduce the risk of his relapsing and returning to serious criminal offending to an acceptable level.

39 Mr Devlin submitted that bail should be refused.

40 In this case, a consideration of the matters required to be taken into account when looking at the surrounding circumstances of the case[10] reveals the substantial hurdles facing the applicant in establishing exceptional circumstances.

41 The offending alleged is very serious, involving a late night intrusion into a private dwelling by three people, one of whom, allegedly the applicant, was armed with a firearm. The victim was gratuitously assaulted and a large number of items stolen.

42 I do not accept that the prosecution case is weak. Its ultimate strength remains to be seen. Judge Gamble, who was well aware of the many criticisms of the case made on behalf of the applicant, considered the case to be 'neither a weak one nor an overwhelming one.' I consider that to be a realistic description of the case.

43 The prior convictions of the applicant are significant, and in particular, his convictions in 2014 for being a prohibited person in possession of firearms and other charges. The sentencing remarks of Judge Dean on 26 September 2014 indicated that his offending took place in the context of his being a trusted member of an organised criminal syndicate headed by Fadi Haddara, which was involved in trafficking in methylamphetamine and firearms. One of his duties was to store firearms for Haddara and an optical surveillance device showed the applicant delivering two revolvers to Haddara on 22 January 2014. He received a total effective sentence of 2 years 6 months with a non-parole period of 15 months. It is a very concerning thing that only a relatively short time after serving that sentence, the applicant was again allegedly involved in offending which involved a connection with firearms. The lack of convictions for violence, in light of the serious firearms convictions, is of little assistance to the applicant.

44 Where the extent of compliance with the conditions of earlier grants of bail is concerned, as already indicated, the history of bail in connection with this very case shows the applicant was unable to comply with conditions imposed upon him. This is not an encouraging history.

45 As for the applicant's family support, which was relied on heavily on his behalf in the application, that support was all available to him at the time of his previous failure to comply with bail.

46 In respect of the availability of in-house treatment for the applicant, it is of course to be hoped that when he gets the opportunity in future, the applicant will seek to avail himself of such services. He had been a drug addict for many years and needs to break that cycle. However, I do not believe that even the strict rules of the Wellness Planet, coupled with stringent bail conditions, are sufficient to provide the necessary level of comfort that the applicant will not present an ongoing risk of reoffending and endangering the public.

47 I have already indicated that if bail is refused, and the trial proceeds as currently scheduled, the applicant will have spent 507 days in custody by the time the charges are finalised. As acknowledged by the prosecution, this is a significant period of time. Whilst the delay, as stated by Judge Gamble in his reasons, is 'lengthy and regrettable', like his Honour, I do not consider the delay to be inordinate in the circumstances. Furthermore, when one considers the considerable seriousness of the offending here, and the serious and relevant prior convictions of the applicant, that period on remand would not exceed the length of the likely sentence which would be imposed if the applicant is found guilty of these charges.

48 In conclusion, taking into account the surrounding circumstances of this case, I am not satisfied that the applicant has shown that exceptional circumstances exist which would justify the grant of bail in this case.

49 Furthermore, for completeness, I note that even had I considered exceptional circumstances to have been shown, I would have been satisfied there would be an unacceptable risk of the applicant endangering the safety of members of the public and committing further offences if released on bail.

50 It follows, therefore, that the application for bail must be refused.

[1] Bail Act 1977, s 4A(1A).

[2] Alicia is also an acquaintance of the applicant.

[3] Telephone records confirm contact between the applicant's mobile phone and that of Chaddoud.

[4] Defined in s 3AAA of the Act.

[5] [2018] VSC 559.

[7] [2018] VSC 393.

[8] [2018] VSC 361 [46].

[9] Exhibited to the applicant's affidavit in support of bail.

[10] S 3AAA of the Act.