Re Azimi [2020] VSC 118 (11 March 2020)

3 On 5 December 2019, the applicant was charged with aggravated carjacking based on events that occurred on 19 November 2019. On 6 December 2019, she was granted bail in the Melbourne Magistrates' Court, subject to various conditions, including that she not contact witnesses for the prosecution other than the informant.

4 On 27 December 2019, while on bail, the applicant was charged with, inter alia, attempting to pervert the course of justice and harassing a witness following a text message exchange between herself and one of the victims in the aggravated carjacking. That same day, records indicate that the applicant was refused bail in the Melbourne Magistrates' Court and further that her bail in the aggravated carjacking matter was revoked.

5 The applicant has now been in custody since 27 December 2019. Both matters are next listed for a second committal case conference at the Melbourne Magistrates' Court on 24 April 2020. According to the applicant's affidavit in support of bail, there is currently no prospect of a resolution of these charges.

6 There are three co-accused in this matter, Omar Kakar, Nazo Kakar and Yazhi Wang. Omar Kakar and Nazo Kakar are the applicant's brother and sister respectively, and Ms Wang is the applicant's brother's girlfriend.

7 At 9.30pm on 19 November 2019, Mohammed Rezaie and Danie Tang ('the complainants') were sitting in a parked vehicle in Doveton when it is alleged that Omar Kakar approached from behind in a black Volkswagen Jetta. In summary, it is alleged that Omar Kakar exited the Volkswagen Jetta and entered the back seat of the complainants' vehicle while carrying a sawn-off longarm[1], demanding that the complainants give him their 'phone and everything you have'.

8 During the course of this incident, Omar Kakar allegedly discharged the firearm towards the windscreen. The complainants gave him $35 cash and a mobile phone. Omar Kakar demanded that the complainants get out of the vehicle, which they did. Omar Kakar then drove the vehicle away, 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 black Volkswagen Jetta followed Omar Kakar as he drove away from the scene in the victims' vehicle.

9 At 11:30 pm, the stolen vehicle was found out the front of 28 Blossom Drive in Doveton. It was seized by police.

10 Relevantly, Omar Kakar and his girlfriend Ms Wang resided at 36A Blossom Drive in Doveton. A search warrant was executed at those premises on 20 November 2019 and amongst other items, a CCTV hard drive was seized. Examination of the hard drive revealed CCTV footage filmed on the night of the alleged offences. That footage showed that about 10 minutes before the alleged offence, Omar Kakar, the applicant, and the co-offenders, walked out the front door of the house and up to a black Volkswagen Jetta. Omar Kakar retrieved a sawn-off longarm from the boot of the vehicle while the others seemingly watched on. Omar then got into the driver's seat of the vehicle and all of the others also entered the vehicle, the applicant being seated in the front passenger seat. The vehicle was then driven off at 9.23 pm. As indicated already, the alleged crime occurred at about 9.30pm. At 10.08pm, the black Volkswagen Jetta returned to 36A Blossom Drive with Nazo Kakar driving and the applicant still in the passenger seat.

11 On 4 December 2019, a search warrant was executed at Nazo Kakar's address in Cranbourne North where, among other things, her mobile phone was seized. On it, police found a text message exchange with the applicant that was indicative of knowledge of the aggravated carjacking.

12 On 5 December 2019, the applicant was arrested. While in a police cell following arrest, the applicant admitted to an undercover police operative that she was present during the incident and that there would be images of her brother (Omar Kakar) holding a firearm.

13 During a recorded interview, the applicant provided some background to the incident, stating that Mohammed Rezaie had owed her $10,000 and that she, along with the three co-accused, had planned to meet with him under the guise of purchasing drugs so that they could rob him in lieu of monies owed. She admitted that an imitation firearm was intended to be used in the incident to scare Mr Rezaie. However, she noted that Mr Rezaie did not attend and instead sent his brother (also named Mohammed Rezaie) and another person to complete the transaction. Notwithstanding this, the applicant stated that the robbery was still 'completed'.

14 The applicant was charged with aggravated carjacking and remanded in custody. On 6 December 2019, she was granted bail in the Melbourne Magistrates' Court subject to various conditions, including, as stated, a condition that she not contact any witnesses for the prosecution.

15 On 23 December 2019, the police executed a search warrant at the complainant Mohammed Rezaie's residence. His mobile phone was seized and a text message exchange with the applicant was identified, which showed the applicant telling Mr Rezaie to drop the charges because she didn't want to lose her kids 'for something I havnt (sic) done'.

16 On 27 December 2019, the applicant was arrested and charged with attempting to pervert the course of justice, harassing a witness and related bail offences. She was remanded in custody.

17 The applicant is 33 years old. She has two children, aged 11 and 6, for whom she is the primary and only carer. The children are currently living with their maternal grandparents, but are said to be 'traumatised' by their lack of contact with their mother. While the applicant was unemployed at the time of her arrest, she has a history of employment which includes eight years working as a pharmacy manager. The applicant has no criminal history and this is her first time in custody.

18 Section 1B of the Act sets out the guiding principles of the Act and reads in part as follows:

(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 makes plain the fact that there is to be a presumption in favour of the granting of bail.

20 Section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, I must refuse bail unless 'satisfied that exceptional circumstances exist that justify the grant of bail'.

21 The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, I am required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.

22 If satisfied of the existence of exceptional circumstances, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires me to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:

1. endanger the safety or welfare of any person; or
2. commit an offence while on bail; or
3. interfere with a witness or otherwise obstruct the course of justice in any matter; or
4. fail to surrender into custody in accordance with the conditions of bail.

23 The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, I am required to take into account the surrounding circumstances pursuant to s 3AAA. I am also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

24 The meaning of exceptional circumstances has been rehearsed in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat stated the relevant principles as follows:

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.

25 Further, in the recent matter of Re Brown, Lasry J noted:

... the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.

Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.

Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.

26 An affidavit in support of bail by Ms Sarah Condon was filed over in place of an affidavit filed by the previous solicitors of the applicant. The affidavit in response to the initial defence affidavit sworn by Ms Melinda Bossio was also filed. No replacement affidavit was considered necessary.

27 In the lead-up to the application, further affidavit material in support of the application was also filed. There was an affidavit of one of the sisters of the applicant, Pardesay Kakar. In addition, there was an affidavit from Moemen Mohamad, the partner of the applicant.

28 Tendered by Mr de Kretser during the application were some still photographs from CCTV cameras at the Blossom Avenue address. The photographs showed various stages of the applicant and her brother and others approaching and entering the vehicle prior to the alleged crime.

29 Also tendered was a bundle of screen shots of text messages located on the mobile telephone of the complainant. The screen shots show a large number of messages, at least 57 separate messages in fact, apparently sent by the applicant to the telephone of the complainant over a number of days commencing on Friday 13 December 2019. That date was only one week after the applicant was released on bail. In the text messages, the applicant repeatedly asked the receiver of the messages to deposit money into her bank account, something which he did, eventually do. She consistently professed her innocence of the charge of aggravated carjacking, and her belief that the person to whom she sent the messages had been responsible for her having been charged. She repeatedly demanded that he intercede with the police to ensure the charges were dropped. Specifically, she strongly urged him to 'undo' what he had done. She threatened to confront his family about 'exactly wat ur up to'. She also threatened to bring everybody down with her, and 'spill the beans on everyone' if anything happened to her children, whose welfare was seemingly very much at the heart of her actions in sending the message. On repeated occasions during the text message exchange, the applicant asked the complainant to delete her messages from his phone.

30 I have had regard to all of the material filed and tendered in the application.

31 The applicant relied on a combination of matters in proof of the existence of exceptional circumstances justifying a grant of bail. These were as follows:

a) The strength of the prosecution case. It was submitted that whilst this was not a weak case, there were real issues to be tried. This was really more a case of armed robbery than aggravated carjacking, in which case, the exceptional circumstances test would not apply to that charge. Mr de Kretser took me through a number of aspects of the evidence which were said to bear out this fact. Amongst other things, there was an absence of evidence of any knowledge by the applicant that the firearm was real or that the vehicle was to be stolen. It was submitted that the taking of the car could be seen to be 'a folly of the brother on his own'. As for the charge of attempting to pervert the course of justice, the prosecution would have to prove that the applicant was the person who sent the messages, and that the complainant actually received them. Also it was submitted that there was little evidence of the applicant's intention, and no evidence of any threat of violence or the like contained within the messages. Rather, the messages conveyed her naivety, her concern for her children and her exasperation at being wrongly charged with the carjacking. Specifically, the applicant did not, in the messages, ask anyone to change their statement.

b) The seriousness of the offending. On this score, Mr de Kretser characterised the offending as being better described as 'an armed robbery combined with a harass witness'.

c) The likely sentence should the charges be proved. Mr de Kretser submitted that a sentence of a community correction order ('CCO') with a term of imprisonment would be a possible sentence.

d) The fact that an absence of special reasons under s 10AD of the Sentencing Act 1991 was not conceded. In this regard, Mr de Kretser did not put forward any material in support of the likelihood or not of the applicant being able to meet the special reasons threshold in s 10A of the Sentencing Act 1991.

e) Delay. On this score, it was submitted that a delay of 18 months to two years was likely. This was a significant delay in the circumstances, bearing in mind that the offending, if proved, may be capable of being met with a sentence of a CCO combined with a term of imprisonment.

g) The lack of prior convictions or findings of guilt for offences against the Bail Act.

h) The need for the applicant to care for her children. Although the children are currently in the care of their grandparents, there are real problems with that arrangement. The mother of the applicant already has the burden of caring for her husband who has a physical disability and is currently confined to a wheelchair. The children had been taken out of their previous school in Cranbourne and enrolled in a school in Meadow Heights for this year. As things have transpired, they have not yet resumed at school, their grandmother being unable to transport them over the Meadow Heights each day. As such, their education has been interrupted.

i) The emotional and financial hardship flowing to the applicant from her incarceration.

j) The stable accommodation available to the applicant with her partner in Meadow Heights.

l) The stable work history of the applicant and the likelihood of her obtaining employment soon after her release.

m) The fact that the time she has spent in custody to date has been a salutary experience for her, which would tend to ensure no further breaches of bail.

n) The availability of a surety of $10,000 from the partner of the applicant.

p) The difficulties inherent in preparing for trial whilst in custody.

32 In a powerful application for bail, Mr de Kretser relied on the above matters in combination to establish the existence of exceptional circumstances. As for the question of unacceptable risk, he submitted that whilst in this case, as in every case, there was a risk, given the circumstances and the very restrictive conditions which could be imposed, such risk could be rendered acceptable.

33 The respondent opposed bail on the basis set out in the affidavit of Ms Bossio and the oral submissions of Mr Pickering. It was submitted that the applicant has not demonstrated the existence of exceptional circumstances. Additionally, it was submitted that the applicant is an unacceptable risk of committing offences while on bail, interfering with a witness or otherwise obstructing the course of justice, given the applicant was on bail for alleged aggravated carjacking when she contacted a prosecution witness. In respect of unacceptable risk, the main focus, in the submissions of Mr Pickering, was the risk of the applicant again interfering with witnesses.

34 It was the prosecution contention that the case on the aggravated carjacking charge is a strong one, which will be put on a complicity basis. This was so in light of the admissions made by the applicant in her interview and the contents of the CCTV footage from 36A Blossom Drive.

35 Furthermore, it was submitted that the carjacking itself was a serious example of that serious crime, marked by clear evidence of a motive and planning, and involving the use of a loaded sawn-off longarm. Indeed, even were the crime to be considered to be armed robbery rather than carjacking, it would have to be seen to be a serious example of that crime. As for the applicant's involvement, it was central, because what was behind the crime was her desire to secure repayment of a debt owed to her. The ordering by the applicant and the others of five bags of cocaine, the step taken to lure the victim to a particular location to rob him, and the admitted intention of the applicant to have a firearm used to frighten the victim, were serious features of the crime.

36 As for the charge of attempting to pervert the course of justice, this was a serious example of the offence committed in circumstances where charges had been laid and were pending. It was a blatant and repeated breach of the requirements of bail, and was far from being a casual disregard for those requirements. The evidence on the charges flowing from the text messages was strong.

37 In the circumstances, it was submitted that the defence contention as to the availability of a CCO/imprisonment combination sentence was 'optimistic'.

38 The content of the text messages, it was submitted, showed the desperation the applicant felt at the time, and the lengths to which she was prepared to go in order to try to improve her position.

39 That level of desperation which would still persist would raise the real prospect of further non-compliance with bail. Furthermore, the motive for the original crime remains unsatisfied. She is still owed the money which was at the heart of the original offending.

40 It was submitted that the applicant by her conduct has proved her unreliability where bail is concerned, a very important matter.

41 Whilst there was no risk of flight, nor any particular risk of the commission of further offences of violence, Mr Pickering submitted that the real concern is the risk of the applicant interfering with witnesses. In light of her proven conduct, that is a very real concern. Furthermore, the crystallised prospect of the applicant breaching bail is a relevant matter to both steps on the process of bail.

42 In respect of the question of delay, the respondent acknowledged that the likely delay was significant, but it was submitted that in the circumstances of charges of the seriousness of those before the Court, that period was not, on its own, exceptional.

43 Mr Pickering submitted that none of the individual circumstances on their own could be described as exceptional, and nor could they in combination. As an example, Mr Pickering referred to the situation facing the children of the applicant. True it is that they will suffer by not being with their mother, and the position in which they are now cared for by their grandparents is not the optimal one. However, there was nothing to indicate the children were suffering unduly as a result, or were not being safely and adequately being cared for. There is nothing unusual, much less exceptional, about the children of a person being held on remand being adversely affected by that situation. In this case, there was nothing that elevated that reality above the norm.

44 Whilst there were many matters, including the good previous history of the applicant and the situation with her children that might, in another case, have provided strong support for a grant of bail, in this case, the matters relied on by the applicant are simply not sufficient to discharge the onus resting upon her to establish exceptional circumstances.

45 Even were I to be satisfied of exceptional circumstances, it was submitted that I should be satisfied that there is an unacceptable risk that the applicant would again interfere with a witness as she so clearly did within one week of her previous release on bail.

46 I am required, in considering whether exceptional circumstances exist, to take into account the surrounding circumstances as set out in s 3AAA(1) of the Act.

47 The first of these is the nature and seriousness of the alleged offending, including whether it is a serious example of the offence. On that score, there is no question that the charge of aggravated carjacking was a very serious one. People were lured to a designated location on the pretext of a drug deal, for the purpose of an armed robbery, at least, to occur. A loaded sawn-off longarm was used in the crime. The occupants of the vehicle were terrorised before being robbed of their possessions and the vehicle. The firearm was discharged in the close confines of the car, damaging the windscreen, an event which undoubtedly would have caused terror to the victims. The crime was allegedly committed by a number of offenders acting as a team, with the intention of securing repayment of a debt owed to the applicant.

48 As for the charge of attempting to pervert the course of justice, it, too, was a serious offence, committed in circumstances where charges had been laid against the applicant, and she sought to improve her position in respect of such charges by repeatedly contacting the complainant. I am satisfied that she knew full well at the time of all of the text messages apparently sent by her that she was doing something in contravention of a condition of her bail and in contravention of the law.

49 In terms of the strength of the prosecution case, the case on both sets of charges, at this stage at least, could not sensibly be considered to be weak. On the contrary, the cases could be considered to be strong. There is likely to be a strong circumstantial case relied on in proof of the contention that the applicant was a party to an agreement for the aggravated carjacking to take place. As for the second group of charges, on the face of it, there would seem to be ready proof that the applicant did sent the text messages in question, that she sent them to the complainant, on whose phone they were found by the police, and that in doing so, she was at the least intending to exert pressure upon him to 'undo' what she perceived he had done in getting her into trouble. Her repeated requests to him to delete the messages may be considered to bear eloquent testimony to the fact that she realised that she was committing a criminal offence in sending the messages, and was in breach of a condition of her bail in doing so.

50 The accused has no criminal history, a matter much to her credit.

51 As to the extent to which she has complied with earlier grants of bail, she has only been on bail once, and regrettably, within one week of that undertaking being entered into, containing conditions designed to ensure compliance with bail, she repeatedly and blatantly breached the conditions of her bail. As Mr Pickering put it

She has proved in a way that we can otherwise only speculate in another case, she has proved her unreliability on bail. She has proved her level of desperation.

52 Under part (e) I am required to consider whether, at the time of the offending, the applicant was on bail for another offence. She was, and that is a powerful matter pointing against a further grant of bail. By her conduct, it may be considered that she showed her lack of respect for the strictures of bail. Furthermore, her status as someone released on bail elevated her subsequent conduct to Schedule 1 offending.

53 It is true that the personal circumstances of the applicant, including her strong family supports, are much to her credit. I take them into account.

54 Turning to the matters contained in parts (k) and (j), I am very conscious of the reality that if these charges do, indeed, follow their course through the indictable stream, the applicant is likely to spend at least 18 months on remand, even stretching up to two years. That is a very important matter, and in some cases, might be sufficient to amount to exceptional circumstances, alone or at least in combination with other matters. In this case, however, it cannot be forgotten that the charges faced by the applicant are very serious, attracting in the case of the two most serious offences, a maximum of 25 years' imprisonment. To my mind, it cannot sensibly be considered that the likely sentence should the applicant be found guilty of these charges would be less than the amount of time she would have spent on custody should bail be refused.

55 I have given very anxious consideration to this application for bail. In particular, I have been struck by the very obvious distress of the applicant throughout this proceeding, which was perhaps reflective of the considerable level of distress evident in some of the text message communications with the complainant. In view of the blameless background of the applicant, and the central importance of her children to her, her distress in understandable. Furthermore, it would be impossible not to feel some sympathy for her.

56 It cannot be forgotten, however, that within one week of the time when the applicant was the recipient of a grant of bail by Mr Reardon in the Magistrates' Court at Melbourne, which bail had attached to it a specific condition that she not contact witnesses for the prosecution other than the informant, she seemingly repeatedly and blatantly breached that condition, and engaged in further offending.

57 The legislature had seen fit to dictate that aggravated carjacking should have a particular status in the pantheon of criminal offences which would attract the highest test applicable to a grant of bail. Having discharged the onus resting on her of satisfying the learned Magistrate as to the existence of exceptional circumstances, she entirely breached the trust he had placed in her, and, so it alleged, committed a further Schedule 1 offence. The position in which she now sadly finds herself is entirely of her own making.

58 The learned Magistrate made a decision on the material before him that exceptional circumstances had been established in the case as he perceived it. That was, of course, not a decision which would bind me. I need to make the decision for myself. Something has fundamentally changed since then, to the detriment of the applicant's position. She has shown a willingness to ignore the requirements of bail. That is a matter which goes into the mix when I consider the question of exceptional circumstances.

59 In all of the circumstances, I am not satisfied of the existence of exceptional circumstances which would justify a grant of bail in this case.

60 For the above reasons, this application for bail must be refused.

[1] Whilst this weapon was variously described as a 'sawn-off longarm' and a 'sawn-off shotgun' in the materials, a closer consideration of the evidence in which counsel assisted me revealed that the weapon was a rifle rather than a shotgun. The examination of the damage to the vehicle by a ballistics expert made that clear.