Re application for bail by Rahman [2020] VSC 748 (9 November 2020)

3 There are two co-accused in this matter, Adam Tiba and Abdullah Hammoud.

4 The applicant has been in custody since the date of his arrest. On 27 October 2020, he filed an application for bail in this Court.[1]

5 The progress of this matter is still at an early stage, being next listed for a committal case conference and committal mention in the Melbourne Magistrates' Court on 24 February 2021. The brief of evidence is due to be served by 13 January 2021.

6 At 11.30 pm on 23 June 2020, Lorenzo Tigani and Dimitrios Pramatias attended Lakeside Drive in Roxburgh Park to purchase two pounds of cannabis from the co-accused Mr Tiba and Mr Hammoud. Mr Pramatias requested to see the cannabis and Mr Tiba then produced a .22 sawn-off rifle, which he pointed at Mr Tigani. A scuffle ensued, during the course of which stab wounds were inflicted on both Mr Tiba and Mr Hammoud. Mr Tigani took possession of the rifle.

7 Mr Tiba and Mr Hammoud fled from the scene and presented at the Emergency Department of the Northern Hospital. Mr Tiba was treated for a puncture wound to his back, whilst Mr Hammoud was treated for two puncture wounds to his right calf. Both men refused to cooperate with the police, except to indicate that there had been an incident in Roxburgh Park.

8 Cell tower evidence is relied upon to demonstrate that mobile phones registered to Mr Tiba and Mr Hammoud were in the vicinity of Lakeside Drive in Roxburgh Park between 11.20 pm and 11.40 pm on 23 June 2020.

9 It is the prosecution case that the aforementioned events resulted in Mr Tiba and Mr Hammoud seeking revenge against Mr Tigani and Mr Pramatias, which lead to the shooting death of Adrian Pacione the following month.

10 At 9.00 pm on 18 July 2020, Mr Pacione visited the home of father and son, Mario and Christian Rubini, at Unit 2 of 2 Ella Court in Lalor. They were present at home, together with Mr Tigani.

11 At 10.35 pm, a vehicle was heard arriving in the driveway of the residence, followed by a knock on the front door. Mr C Rubini answered the door and observed three males near the entrance, one of whom was wearing a black hooded jumper with black material over his face and conversing in muffled tones with the others. The prosecution asserts that the three males were the applicant, Mr Tiba and Mr Hammoud.

12 It is alleged the first male produced a semi-automatic handgun and advanced towards the front door of the residence. Mr Tigani observed the firearm and heard a 'click noise' which he believed to be the firearm misfiring. The first male attempted to enter the residence but all three occupants rushed towards the door and managed to force it closed.

13 Almost immediately, four shots were discharged into the residence through the window adjacent to the front door. Three of the four shots penetrated a plaster wall separating the dining and lounge areas, before exiting through the lounge room window. The remaining shot hit Mr Pacione in the head as he was seated on a couch in the lounge room. The bullet entered and exited through the top of his head, causing significant brain injuries.

14 The applicant, Mr Tiba and Mr Hammoud immediately departed the residence in an unidentified vehicle. The prosecution has not identified which of the three accused is responsible for discharging the firearm. It is conceded that there is no eyewitness evidence identifying the applicant as being present at the scene.

15 Mr Pacione was subsequently transported to the Royal Melbourne Hospital with life threatening injuries. He was placed in an induced coma before having his life support turned off on 20 July 2020. He died that day from a gunshot wound to the head. He was 20 years old.

16 Mr M Rubini informed police that Mr C Rubini and his friends were selling drugs. He stated further that Mr C. Rubini, Mr Tigani and 'Taki' (Mr Pramatias) met with, assaulted and stabbed a drug-dealer in the Roxburgh Park area in or around June 2020. It was Mr M Rubini's belief that the 'drug rip-off and assault' was the reason for the shooting. A search warrant executed at the residence located approximately 12 ounces (340 grams) of cannabis. Police allege that the residence was being used for the preparation and sale of cannabis.

17 Cell tower evidence relating to mobile phones registered to Mr Tiba and Mr Hammoud places those phones in the vicinity of the shooting at the relevant time.

18 Sometime during the course of the investigation, the applicant was identified as a person of interest. He had earlier come to the attention of the Australia Security Intelligence Organisation ('ASIO') as it was thought that he may hold similar beliefs to his brother who had died fighting for the Islamic State in Iraq and the Levant ('ISIL') some years earlier. As a result, ASIO had access to telephone intercept material that could be shared with investigators in the present matter.

19 After reviewing the material, investigators identified the following information as relevant to the investigation into Mr Pacione's death:

• At 12.59 pm on 18 July 2020, the applicant called an associate by the name of Mohamed Hamdan and arranged a meeting.
• At 7.05 pm, the applicant called an associate by the name of Amair Fahal, told him that they were, 'going to do that thing... about those cunts who got Adam' and arranged to meet. This exchange is relied upon as evidence of the applicant being involved in a plan to retaliate against persons involved in Mr Tiba's stabbing.
• At 7.12 pm, the applicant called Mr Fahal and told him to come as quickly as possible because 'Adam' wants to meet at 7.30 pm. When asked who else was coming, the applicant responded 'Adam' and that he '[couldn't] be fucked saying the other names.'
• At 7.25 pm, the applicant called an associate by the name of Abdirahman Mohamed and told him that they were, 'going to get those cunts... Adam's, remember those dogs?'. Mr Mohamed said that he was on his way from Geelong but was advised by the applicant that he probably would make it in time.
• At 7.37 pm, the applicant called Mr Tiba and asked if he was going to 'Abz' Hammoud's house, referring to Mr Hammoud. Mr Tiba told the applicant not to 'fucking talk over the phone'. This exchange is again relied upon as evidence of the applicant being involved in a plan to retaliate against persons involved in Mr Tiba's and Mr Hammoud's stabbing.
• At 7.40 pm, the applicant received a phone call from an unknown male asking what was happening with Adam and where they were meeting. The applicant said that he would send through the address and stated further that they were going to 'wreck those cunts who hit him'. This exchange is relied upon as evidence of an intention to commit a violent act against those involved in Mr Tiba's stabbing.
• At 7.45 pm, the applicant called Mr Fahal and told him that he was at the end of the street and advised him to take a U-turn. It is alleged that this call suggests that the applicant and Mr Fahal were meeting one another.
• At 7.48 pm, Mr Tiba called the applicant and advised that he was five minutes away.
• At 8.47 pm, Mr Hamdan called the applicant and asked where he was and who he was with, to which the applicant responded that he was in Mickleham with 'Abz and Adam.' This exchange is relied upon to demonstrate that the applicant was in company with both of the co-accused in the lead up to Mr Pacione's murder.
• At 9.09 pm, the applicant called Mr Fahal. During the course of the conversation, Mr Fahal said that he was parked in a side street in Thomastown with Mr Hamdan. This exchange is relied upon as evidence that Mr Fahal and Mr Hamdan were in company with one another.
• At 9.15 pm, the applicant called Mr Fahal and said that he would be sending the address of 'those cunts' so that Mr Fahal could 'sus out if they are home.' This exchange is relied upon to show that the applicant provided Mr Fahal with the address of the Ella Court residence so that Mr Fahal could conduct reconnaissance and establish whether anyone was home.
• At 9.23 pm, Mr Fahal called the applicant and said that there was only one house which looked like it had people present inside. Mr Tiba said to Mr Fahal, '...it's not the front house... you turn into Ella Court, there's like four or five houses down... there's a unit... it's orange bricks.' Mr Fahal said that he had left the street but asked Mr Tiba if he should return, to which Mr Tiba responded that there was a big driveway and he should look out for the house at the end of the driveway. Mr Fahal responded, 'We will go and sus it out.' This exchange is relied upon to show that Mr Tiba was directing Mr Fahal to the Ella Court residence to ascertain whether the occupants were present, and further to establish that Mr Fahal was in company and referring to Mr Hamdan when he said 'we will go and sus it out.'
• At 9.26 pm, Mr Fahal called the applicant and said that the only house with the lights on was the house at the back. Mr Tiba responded, 'That's the one.' This exchange is relied upon to show that the applicant, Mr Tiba and Mr Fahal were liaising about the location and activities of the Ella Court residence.
• At 9.35 pm, the applicant's mobile phone was pinging off the Lalor West telecommunications tower, which is in the immediate vicinity of the Ella Court residence. It is believed that, in the lead up to the alleged offending, there was a tacit understanding between the applicant and the co-accused that they would commit an aggravated burglary at the Ella Court residence and assault the occupants.
• Between 10.30 pm and 10.40 pm, it is alleged that the applicant, Mr Tiba and Mr Hammoud attended the Ella Court residence and murdered Mr Pacione.
• At 11.03 pm, the applicant called Mr Fahal and advised him that he was with 'Adam and Abz.' This exchange is relied upon to demonstrate that the applicant was in company with the co-accused shortly after Mr Pacione was killed.
• At 11.15 pm, Mr Tiba called the applicant and they arranged to meet.
• At 2.16 pm on 19 July 2020, an unknown male called the applicant and told him that he was coming to pick him up. The applicant said that they would, 'go and see Adam.' When asked whether Adam was coming, the applicant said, 'Apparently this cunts [sic] bailing, I don't want to call him again.' The unknown male responded, 'Fuck.' This exchange is relied upon to show that the applicant and the unknown male intended to visit Mr Tiba, and, further, that the applicant had knowledge that Mr Pacione was, at that time, in a critical condition.

20 On 21 October 2020, the applicant, Mr Tiba and Mr Hammoud were arrested and charged with Mr Pacione's murder.[2] They each provided a 'no comment' record of interview. It is not clear whether any charges have or are intended to be laid against Mr Fahal, Mr Hamdan or Mr Abdirahman based on their respective roles in the alleged offending.

21 The applicant is 18 years old. His parents immigrated to Australia from Bangladesh before he was born. His father is currently employed by the Australian Defence Department as a procurement contractor, and his mother is employed by Telstra in a managerial position. The applicant was raised in Melbourne with two siblings. His older brother, Suhan, died five years ago whilst fighting in Syria on behalf of ISIL. The applicant's sister is 16 years old and is currently in high school. At the time of the applicant's arrest in the present matter, he was residing with his family in Roxburgh Park and undertaking his Victorian Certificate of Education ('VCE'). The applicant hopes to complete his exams so that he can receive an Australian Tertiary Admission Rank (ATAR) and go on to study secondary teaching at university.

22 The applicant has no recorded criminal history. He completed a Youth Diversion Program on 26 March 2020 in respect of offences of robbery, burglary and theft. The circumstances of those charges are detailed in the preliminary police brief exhibited as KJP-9 of the Affidavit in Response.

23 The applicant is also charged on summons dated 5 October 2020 with using a false document and stating a false name at a COVID-19 checkpoint on 2 September 2020. That matter is next listed for mention in the Broadmeadows Magistrates' Court on 24 June 2021.

24 Because the applicant is charged with murder, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist that justify the grant of bail.[3] In considering whether exceptional circumstances exist, the Court is required to take into account the relevant surrounding circumstances contained in the non-exhaustive list prescribed in s 3AAA of the Bail Act 1977 ('the Act').[4]

25 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'.[5] 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.[6]

26 If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the unacceptable risk test.[7] That is, bail must be refused if the Court is satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act and that such risk is an unacceptable risk.

27 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.

28 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.[9]

29 The applicant relied on the following matters in support of the application for bail.

30 At the time the application for bail was filed, the particulars of the prosecution case were not known. However, based on the information available at that time, it was anticipated that issues of knowledge, intent and complicity would arise in this case. At the time of the hearing more details were available but the issues do appear to be as outlined. It was noted that the applicant has made no admissions as to involvement in the alleged offending.

31 The applicant is 18 years old and has no formal criminal history.

32 The applicant has the support of his family. If bail was granted, he was able to return to the family home. Although not articulated in the applicant's material, a report prepared by Youth Justice on 4 November 2020 indicates that the applicant's mother works from home and was in a position to monitor his movements. Further, the applicant's mother gave an undertaking to the Court to immediately advise the informant of any breach of bail.

33 At the time of the applicant's arrest on 21 October 2020, he was preparing to complete his VCE studies through Strathmore Secondary College. His final VCE exams were due to commence on 10 November 2020.

34 The applicant was referred to Youth Justice for assessment of his suitability to engage with the Youth Justice Bail Program. It is noted that, according to the resulting report dated 4 November 2020, Youth Justice were not provided with the details of the allegations against the applicant.

35 According to the Youth Justice report, the only factor that may increase the applicant's risk of complying with bail are his negative peer associations. In his interview with Stephen Riordan of Youth Justice, the applicant acknowledged that he had 'some experience' with drugs and alcohol but stated that he had ceased all substance use early in 2020. The applicant reported being in good health and could not identify any physical or emotional issues of concern. In Mr Riordan's opinion, the applicant was not being avoidant of services but rather appeared genuinely unable to identify any areas in his life that he believed would benefit from professional services or intervention. In the circumstances, both the applicant and Mr Riordan agreed that the applicant would not require support from Youth Justice in the community. The applicant was therefore assessed as not suitable for the Youth Justice Bail Program.

36 The applicant's parents were willing to offer the equity in their family home which is owned outright, to the value of $620,000, as a surety on behalf of the applicant. That amount represents the entire capital improved value of the property.

37 The applicant submitted that he remained in the community without significant incident for several months in the intervening period between the alleged offending and his arrest.

38 The application for bail was opposed. It was submitted that the applicant has failed to demonstrate the existence of exceptional circumstances that justify the grant of bail, and, in any event, is an unacceptable risk of committing an offence or interfering with a witness or otherwise obstructing the course of justice if he is granted bail.

39 It was alleged that the applicant was engaged in extensive drug use prior to his remand, particularly involving cannabis and OxyContin. This is supported by telephone intercept material evidencing text messages between the applicant's sister and one of the applicant's associates, Ammair Fahal, between 9 July and 9 August 2020 discussing his drug use and its detrimental impact on his family. It was submitted that drug use impairs the applicant's decision-making ability and increases his risk of committing offences.

40 The respondent noted that, notwithstanding that the applicant was not present and had no involvement in the original assault against the co-accused on 23 June 2020, he was still willing to involve himself in planning and seeking violent retribution against the alleged perpetrators. It was submitted that the applicant actively recruited others in the alleged offending and relayed clear intentions to commit a violent assault. He was also active in confirming the location of the target residence and the activities of its occupants. It is believed that the applicant's only motivation to be involved in the alleged offending was his loyalty to the co-accused. In these circumstances, and also considering the seriousness of the allegations against the applicant, the respondent expressed concerns that the applicant will be willing to interfere with witnesses and attempt to obstruct the course of justice.

41 The matter came on before me on Friday 6 November 2020. Mr Hartnett who appeared for the applicant strongly pressed the issue of the applicant's exams and the general support he has from his family together with the availability of a substantial surety. He also emphasised the applicant's youth and lack of involvement with the criminal justice system. There was some discussion about the strength of the prosecution case but Mr Hartnett properly conceded that he was not in a position to submit that the prosecution case was weak but indicated that the matter would proceed to trial.

42 This was an early application. It was brought now because of concern about the applicant's exams which were due to commence on Tuesday 10 November 2020 and run for a little over a week. In the circumstances I would have regarded the inability of the applicant to sit for his exams taken with the other matters put on his behalf as being exceptional circumstanced sufficient to warrant his release on bail.

43 The applicant's mother gave evidence before me. She is supportive of her son but I do have concerns about her knowledge and understanding of the extent of the applicant's drug taking and the background of those with whom he was associating at the time of the alleged offending. The second matter was not actually addressed in her evidence.

44 The respondent had provided material on affidavit that it should be possible for the applicant to complete his exams whilst in custody but at the time of the first hearing it was not known how that was to be arranged.

45 I adjourned the application to Monday 9 November so that enquiries could be made as to those matters. The applicant's solicitor made a number of enquiries over the weekend. The informant and the respondent's instructing solicitor gave her their support. When the matter came on for hearing on Monday I was satisfied that suitable arrangements were in place for the applicant to sit his exams and that his study materials could be made available to him.

46 In those circumstances, given the nature of the offending I did not regard the other matters put on the applicant's behalf as constituting exceptional circumstances. It may be that the situation might change in the future in which case a further application can be made.

[1] Only the Supreme Court, or a court committing a person for trial, can grant bail to a person accused of murder - Bail Act 1977, s 13(2) (the 'Act').

[2] Similarly to the applicant, both of the co-accused were charged with common law murder and, in the alternative, murder under s 3A of the Crimes Act 1958. Mr Hammoud was also charged with committing an indictable offence whilst on bail.

[3] The Act, ss 4A(1), 4A(1A), 4A(2), 4AA(1) and Sch 1, item 2.

[5] Re CT [2018] VSC 559 [64] citing with approval Re Sam [2017] VSC 91.

[6] Re CT [2018] VSC 559 [65] citing with approval Re Fairest [2015] VSC 375.