Re Elias [2020] VSC 502 (13 August 2020)

1 Yousif Elias, the applicant, is charged with offences allegedly committed on 1 May 2020, including: kidnapping (common law and under s 63A of the Crimes Act 1958); false imprisonment; attempted extortion; robbery; making a threat to kill; making a threat to inflict serious injury; impersonating a police officer; assault with intent to rob; assault with an instrument; assault in company; assault by kicking; unlawful assault; and committing an indictable offence whilst on bail.

2 The applicant, aged 19 years at the time of alleged offending and now aged 20,[1] has been in custody since being arrested on 14 July 2020.

3 On 4 August 2020, a magistrate refused bail on the basis that, notwithstanding that compelling reasons had been shown justifying the grant of bail, the applicant was an unacceptable risk of committing an offence whilst on bail; of endangering the safety and welfare of 'any person'; or of interfering with a witness or otherwise obstructing the course of justice.

4 The applicant now seeks bail from this Court.[2] That application is opposed.[3] It is common ground that, since the applicant is alleged to have committed a Schedule 2 offence whilst on bail for another indictable offence, he must show that compelling reasons exist that justify the grant of bail.

5 Not without some hesitation, I consider that the application should be granted and that the applicant should be admitted to bail on strict conditions. My reasons follow.

6 The following summary of the alleged offending is drawn largely from a helpful report prepared for the bail application by the informant, Senior Constable Laura Iannelli.

7 Jacob Turner, the alleged victim of the offending, is aged 19 years. He met the applicant and his co-accused, Alula Tegegne, for the first time in the evening of 30 April 2020, having been contacted on 'Snapchat'. At that time he was staying at the Ibis Kingsgate Hotel, in King Street, Melbourne. It is alleged that, after they met, the applicant exchanged a 'point' of cocaine for a Xanax tablet, and asked Turner to go into the hotel sell the cocaine for him. Turner went upstairs into the hotel but made no attempt to sell the cocaine. When he returned downstairs after 10 minutes or so, he found that the applicant and Tegegne had left.

8 At about 11.30 am the next morning, 1 May 2020, Turner checked out of the hotel, and encountered the applicant and Tegegne on the corner of Franklin Street and Elizabeth Street. The applicant demanded the cocaine he had given Turner the previous night.

9 Shortly afterward, the applicant and Tegegne dragged Turner down the ramp of an underground car park in Franklin Street. They threw Turner to the ground and punched and kicked him. The applicant and Tegegne then made Turner hand over his shoes and watch, but returned them because they were of little value. They then made Turner take off his clothes, ostensibly so they could search for drugs. When Turner got up he was kicked to the head and fell back down. The applicant said repeatedly, 'I'm going to kill him'. Both the applicant and Tegegne recorded what was occurring on their mobile telephones.

10 The applicant told Turner that he was an undercover police officer and had been investigating him for months. He told Turner he was not leaving until he handed over two bags of 'ice' (methylamphetamine). The applicant demanded that Turner set up all of his dealers, and told him that if he said 'No comment', he would do 12 years in prison. This is captured on mobile phone footage recorded by the applicant.

11 Tegegne is also captured on video striking Turner and kicking him to the head. The applicant slapped Turner twice to the head, calling him a 'fucking dog' and saying, 'I'm going to start cracking this cunt'. They prevented Turner from leaving. Tegegne continued to film as the applicant struck Turner to the head.

12 The applicant then took a cable from a nearby air-conditioning unit and began whipping Turner, the impact from the cord causing cuts and bruising. This assault is also captured on mobile phone footage.

13 The applicant then took out a clear plastic snap-lock bag from his pants pocket which contained powder. He poured powder on his hands and repeatedly slapped Turner to the face. The applicant said to Tegegne, 'this is where they start to go faint'. He then picked up a fire extinguisher from the wall and said, 'I'm gunna fucking kill him', and waved the extinguisher at Turner as if he was going to throw it.

14 A short time later the three left the carpark. When they got outside Turner tried to get away, but the applicant grabbed him and pulled him back. They got onto a tram. The applicant continued to film with his mobile telephone. He repeatedly slapped Turner to the head, and said, 'Why would you even try and think about escaping me. Now you are going to be hostage for three days'.

15 Turner's ordeal ended when the applicant and Tegegne took Turner to a bank to withdraw money. Turner told bank staff he was being held hostage and police were called.

16 On 2 July 2020, police executed a search warrant in an unrelated matter[4] and seized the applicant's mobile phone. Investigators found four videos of Turner being assaulted, injured and held against his will. The applicant admitted forcing Turner into a carpark, assaulting him and kicking him to the head, and described taking Turner to the bank to withdraw money. He refused, however, to provide the details of the co-accused. The applicant was released pending further enquiries, but was once more arrested on 14 July 2020.

17 Tegegne was arrested on 17 July 2020. His mobile telephone contained footage of Turner being whipped with electrical cable. The applicant can be heard telling Turner that he owes him money for cocaine.

18 At the time of the offending, the applicant was on bail for possessing a drug of dependence. He had been arrested on 29 April 2020 in possession of cannabis and Xanax.

19 The applicant was born in Iraq and moved to Melbourne with his family in 2003. He is the youngest of five children, ranging in age from 23 to 36 years. His parents live in Campbellfield, and it is proposed that, if granted bail, the applicant will live with his parents and two sisters.

20 It is claimed that the applicant started using cocaine, cannabis and Xanax about 12 months ago. His prior findings of guilt are relatively few and comparatively insignificant, and include driving offences and possessing counterfeit money. This is his first time in custody.

21 In summary, the applicant relies on the following as establishing compelling reasons justifying the grant of bail:

• first, the prosecution case is largely 'word on word', the video footage not supporting a number of the serious allegations made by Turner;

• secondly, there will be considerable delay, given that the first committal mention is 6 October 2020, and, given the current pandemic, it is likely that the applicant will spend at least two years in custody awaiting trial;

• thirdly, it is likely that the applicant will spend more time on remand than any sentence he might ultimately receive;

• fourthly, given the pandemic, the applicant's time on remand will be onerous, given that he cannot have visitors and cannot take part in rehabilitative and educational programs (having already spent two weeks in quarantine);

• fifthly, should he be granted bail the applicant will be subject to a strict regime of supervision by Youth Justice, and will have drug treatment available;

• sixthly, the applicant has stable accommodation available with his family; and

• seventhly, the applicant has a limited criminal history.

22 The applicant also asserts that any risk can be rendered acceptable by conditions that:

• secondly, maintain a static address with his family;

• thirdly, provide for reporting (once that becomes practicable);

• fourthly, mandate compliance with a supervised drug treatment regime through Youth Justice;

• fourthly, impose non-association with the co-accused, and non-contact with the victim;

• fifthly, restrict the applicant's movement from Victoria; and

23 Considerable reliance was placed on a Youth Justice Bail Service Report, authored by Ms Bridget McGeoch, in which the applicant was assessed as suitable for supervised bail. Among others, Ms McGeoch made the following observations:

Mr Elias has been assessed as suitable for the Youth Justice bail program. Mr Elias has not previously been involved with Youth Justice or comprehensive support services. Given the extent of the alleged offending and his presenting support needs as outlined below, it appears he would benefit from Youth Justice supervision discussions and case management.

If Supervised Bail is granted, Mr Elias will be required to undertake weekly supervision appointments whilst he remains engaged in pro-social activities, and his supervision appointments can increase as determined by Youth Justice in an ongoing assessment of risk and support needs.

Discussions in Youth Justice supervision appointments will focus initially on his substance use, the impact of negative peer associations and strategies to shift this dynamic, values and beliefs, positive and pro­social decision making, engagement in employment, inter-family dynamics and compliance with bail conditions.

...

Whilst subject to Youth Justice supervision, Youth Justice are the identified primary case managers for the young person to coordinate the aforementioned services and referrals. Youth Justice will maintain regular contact with the above care team members, and any concerns or instances of non-compliance will be reported by Mr Elias' support workers to the Youth Justice worker.

Mr Elias is proposed to reside in the Northern suburb of Campbellfield within the family home and will be subsequently case managed by the Northern Youth Justice Program. Youth Justice have completed a referral to Youth Support and Advocacy Service (YSAS) for substance abuse counselling, including the development of a formal relapse prevention plan. YSAS will provide Mr Elias with harm minimisation strategies, as well as substance use information and strategies for ceasing use.

24 Reliance was also placed on the sworn evidence of the applicant's mother, Elham Elias, who gave an undertaking to the Court to report any breaches of bail conditions by her son to police.

• the applicant has a history of committing indicatable offences whilst on bail;

• he will interfere with witnesses, and has already made direct threats of violence aimed at the victim;

• the offences alleged include violence and threats of violence;

• the applicant has made admissions to police sufficient to implicate himself in the offences alleged;

• there is a strong case against the applicant which includes video footage that he recorded;

• apart from committing an indictable offence on bail, the applicant is also charged with kidnapping; and

• the applicant has no employment and no known means of financial support.

27 Among the factors rendering the applicant an unacceptable risk, the respondent submitted, are the following:

• the applicant has a history of failing to obey court orders;[5]

• he has a history of drug abuse and will have access to drugs if bailed;

• he has a propensity for violence and has directly threatened the victim in this matter; and

• he has no employment and no known means of financial support.

28 In a report prepared for the bail application,[6] the informant, Senior Constable Laura Iannelli, relied on the following (among other things):

[106] The applicant is a self-admitted drug user and acknowledges his drug use has become problematic. While in police custody, the applicant told investigators he frequently uses cocaine and boasted about consuming an ounce over a two-day period. According to the applicant, an ounce of cocaine is currently valued at $8000. The applicant did not explain how he had sufficient funds to purchase the drugs.

[107] The applicant frequently consumes Xanax which he obtains illegally. The applicant's drug use makes him an unacceptable risk of re-offending. Investigators believe the applicants drug taking leads to poor decision making and negative peer association.

[108] While it is proposed that the applicant will have Youth Justice and family support available to him; the applicant is not armed with any insight, awareness or control strategies to deal with the realities of life if released on bail and is highly likely to reoffend as a result.

[109] Moreover, in the bail application on 5 August 2020 the court heard from the applicant's sister, Athraa Elias, who gave evidence that the applicant's family were unaware he had a drug addiction. This is extremely concerning and suggests a disconnect in the inter-family dynamics. Without the ability to recognise signs of drug use, it is submitted that proposed supervision from the applicant's family does very little to alleviate the risk of re-offending.

[110] On 14 July 2020, the applicant enquired into the whereabouts of the victim. When investigators confirmed they had been able to speak with the victim and he was no longer held in a detention facility, the applicant replied, 'I know where to find him. If I'm not locked up I will go and knock his teeth out'.

[111] The applicant reiterated the same during the record of interview. He said, 'I want to smash him, I want to smash him again now. I know where to find him. I hope I see him again. Fucking little aerating dog. Fuck his mum's a slut. Yeah you heard all that!'.

29 It is made plain by s 4 of the Bail Act 1977 ('the Act') that the applicant is entitled to bail unless the Act requires the Court to refuse bail.

30 Where, like the applicant, a person is accused of a Schedule 2 offence, s 4AA(3) imposes a 'compelling reason test'. As a result, s 4C(1A) provides that the Court 'must refuse bail ... unless satisfied that a compelling reason exists that justifies the grant of bail'. In considering whether a compelling reason exists, the Court must take into account the 'surrounding circumstances',[7] the burden of satisfying the Court that a compelling reason exists resting on the applicant.[8] Schedule 2 offences relevantly include an indictable offence alleged to have been committed while on bail for another indictable offence (cl 1(a)) and kidnapping pursuant to s 63A of the Crimes Act 1958 (cl 21).

31 In Ceylan,[9] Beach JA observed:[10]

In construing the expression 'compelling reason' in s 4(4), one must be careful to ensure that the words are construed in the context in which they occur and having regard to the legislative purpose of the provisions of the Act. An examination of Schedules 1 and 2 of the Act discloses that the Schedule 1 offences are generally more serious than Schedule 2 offences. While the expressions 'exceptional circumstances' and 'compelling reason' direct attention to matters that might not necessarily be thought to fall on the one spectrum,[11] plainly the 'exceptional circumstances' test in the Act is intended to be one that is more difficult to satisfy than is the 'compelling reason' test. So much might be observed from s 4(6) which requires an offence that is both a Schedule 1 offence and a Schedule 2 offence to be taken to be a Schedule 1 offence for the purposes of s 4 of the Act.

While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified.[13] It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional. Such a requirement would place the bar at too high a level in a scheme where the exceptional circumstances test exists as the most onerous test under the Act.

32 If the Court is satisfied that a compelling reason exists that justifies the grant of bail for a person accused of a Schedule 2 offence, s 4D(1) of the Act requires the Court to apply 'the unacceptable risk test'.

33 The unacceptable risk test is found in s 4E(1), which requires the court to refuse bail if the 'prosecutor' satisfies the court[14] that there is an unacceptable risk that the applicant would, if released on bail:

(i) endanger the safety or welfare of any person;

(ii) commit an offence while on bail;

(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.

34 When considering whether any relevant risk is unacceptable, s 4E(3) requires the court to take into account the 'surrounding circumstances', 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. By virtue of s 3AAA of the Act, this court:

must take into account all the circumstances that are relevant to the matter including, but not limited to, the following -

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) whether there is in force -

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.

35 Further, when interpreting the Act, the court is required by s 1B to take into account (among other things) that:

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; ...

36 The applicant is youthful - now aged 20 years - and has never been in custody before. Unlike the conditions which would have prevailed were it not for the current pandemic, he is unable to have any personal visits by family, friends or loved ones, and he is unable to take part in any educational or rehabilitative programs. These factors render the conditions far more onerous than would ordinarily be the case.

37 Moreover, it is impossible to predict with any level of certainty the length of time during which the applicant will be subject to these onerous custody conditions were bail to be refused. Quite apart from the conditions in which he is currently held, an additional and very significant effect of the COVID-19 pandemic is the inevitable delay that will be encountered in finally determining the charges faced by the applicant. Although it is very difficult in these very uncertain times to try and anticipate the time that will elapse before the charges are finally dealt with, suggestions of two years do not seem to me to be unrealistic.

38 I am satisfied that these four factors combined - the applicant's youth; that it is his first time in custody; the onerous conditions of his remand; and the anticipated delay in finalising the charges against him - provide a compelling reason that justifies the grant of bail. I do not ignore the seriousness of the offending alleged, and I do not accept that the prosecution case (in the main) is other than strong, but I consider that it would border on inhumane to permit the applicant's continued custody in the current circumstances.

39 With respect to the issue of unacceptable risk, the respondent has failed to satisfy me that the putative risks - of interfering with witnesses, committing an offence whilst on bail or otherwise interfering with the course of justice - cannot be rendered acceptable by very strict and rigorous conditions of bail.

40 I note that the offending for which the applicant was on bail at the relevant time was relatively minor, and that his prior findings of guilt are for relatively minor and dissimilar offending. And although the current alleged offending is a breach of the bail to which he was subject for relatively minor offending and also constitutes the breach of an adjourned undertaking, I do not regard these matters as being of great significance.

41 More significant is the applicant's threats made to police to inflict injury on the alleged victim. At this distance, however, it is difficult to assess whether the applicant's menaces were the product merely of empty-headed bravado, or were an indication of sinister intent. Whatever the motivation, however, I consider that any risks to the victim - which might include the commission of further offences on bail and interference with the course of justice - may be ameliorated by strict conditions.

42 Moreover, insofar as the applicant's offending seems to have been influenced by the abuse of illicit drugs, I consider that the risk of further offending prompted by the ingestion of drugs may acceptably be mitigated by supervision provided by Youth Justice as part of the conditions of bail. I also note the undertaking given to the Court by the applicant's mother.

43 Given the above, I will admit the applicant to bail on his own undertaking, with conditions that he:

1. appear before the Magistrates' Court of Victoria at Melbourne on 6 October 2020;
2. reside at [a street address], Campbellfield, and not change residence without prior permission of a court first obtained;
3. not leave the residence [a street address], Campbellfield, any day between the hours of 6.00 pm and 6.00 am;
4. present himself at the front door of the residence at [a street address], Campbellfield, between the hours of 6.00 pm and 6.00 am, upon request by any member of Victoria Police;
5. be under the supervision of Youth Justice, and comply with all lawful directions of Ms Bridget McGeoch or her nominees, including (but not limited to) submitting to such lawful medical, psychiatric, psychological, drug and alcohol treatment, rehabilitation or counselling as directed;
6. not to leave the suburb of Campbellfield except for medical treatment, including (but not limited to) lawful medical, psychiatric, psychological treatment, including drug and alcohol treatment, rehabilitation or counselling as directed by Ms Bridget McGeoch or her nominees;
7. not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner;
8. surrender any valid passport to the Informant and not apply for or possess any other passport or travel document;
9. not attend any point of international departure;
10. not leave Victoria except with the permission of the Informant first obtained;
11. not contact Alula Tegegne, directly or indirectly, whether personally, by telephone, email, social media or other means;
12. not contact or approach any witness for the prosecution other than the Informant.

[2] The application was supported by an affidavit affirmed by the applicant's solicitor, Natasha Freijah, on 4 August 2020, and the exhibits thereto,

[3] The respondent relied on an affidavit sworn on 11 August 2020 by Victoria Gillis, a solicitor with the Office of Public Prosecutions, and accompanying exhibits.

[4] On 2 July 2020, Senior Constable Iannelli charged the applicant with obtaining property by deception (four charges), dealing with the proceeds of crime and committing an indictable offence on bail. (These charges relate to four bogus sales of mobile telephones.) He was released on 'police bail'. Those charges are next listed at the Magistrates' Court on 16 February 2021.

[5] At the time of the alleged offending the applicant was subject to an adjourned undertaking imposed on 15 August 2019 for driving offences.

[6] Exhibit VEG-1 to Victoria Gillis' affidavit.

[9] Re Ceylan [2018] VSC 361.

[11] One test concentrating on frequency or rarity of circumstances, the other on the quality of reasons for a particular decision.

[13] See Paduano [2005] FCA 211; (2005) 143 FCR 204, 213 [37]-[39]; Plaintiff M64/2015 [2015] HCA 50; (2015) 258 CLR 173, 187 [31].