Re Hammoud [2021] VSC 496 (16 August 2021)

2 The applicant was arrested and charged in this matter on 21 October 2020 alongside two co-accused, Adam Tiba and Tahmid Rahman. A further co-accused, Ammair Fahal, was arrested and charged on 13 January 2021.

3 The applicant has been remanded in custody since 21 October 2020 and has not made any previous application for bail in this matter. Mr Rahman and Mr Fahal are both on bail; Mr Rahman having been granted bail by me on 21 May 2021,[1] and Mr Fahal having been granted bail in the Melbourne Magistrates' Court on 22 March 2021. Mr Tiba remains on remand, having been refused bail by me on 6 July 2021.[2]

4 On 22 March 2021, each of the accused were committed to stand trial in this Court by way of the 'fast-track' procedure adopted in response to the COVID-19 pandemic.

5 The matter is next listed for directions hearing before Freeman JR on 17 August 2021,[3] followed by pre-trial cross-examination of prosecution witnesses commencing on 21 September 2021.

6 At the time of the alleged offending in the informant Antonelli matter, the applicant was on bail and summons in relation to a number of outstanding matters. The matter for which the applicant was on bail has since had bail revoked (informant Hodge). All known matters are detailed below.

7 On 9 June 2019, a Ford Ranger was stolen from a residential premises in Seaford. Later, false numberplates were affixed to the vehicle. On 16 August 2019, the applicant drove the vehicle to an appointment at the Broadmeadows Justice Centre. Police conducting patrol of the carpark noticed that the vehicle numberplates did not appear legitimate, and spoke to the applicant when he exited his appointment. The applicant requested a satchel from inside the vehicle, which was searched and found to contain $9,725 cash, four zip-lock bags with white powder, believed to be methamphetamine (3.15 grams total) and ecstasy (.95 grams total), and identification cards in the applicant's name, as well as in the name of a third party.

8 The applicant was arrested and remanded in custody on charges of theft of a motor vehicle, handling stolen goods, fraudulently using a registration label, trafficking methylamphetamine, possessing methylamphetamine, possessing ecstasy, dealing with the proceeds of crime and committing an indictable offence whilst on bail.

9 On 29 August 2019, the applicant was granted bail in the Melbourne Magistrates' Court. The same day, charges of theft of a motor vehicle, handling stolen goods and trafficking methylamphetamine were withdrawn and struck-out.

10 On 29 June 2021, whilst the applicant was already on remand in the informant Antonelli matter, his bail was revoked in this matter in the Broadmeadows Magistrates' Court.

11 The balance of the charges are next listed for a contest mention in the Broadmeadows Magistrates' Court on 26 August 2021.

12 On 7 November 2019, the applicant was charged on summons with three offences of obtaining property by deception. The charges relate to purchases made with stolen credit card details, exceeding a value of $18,000, between 22 December 2018 and 15 January 2019. The matter is next listed for plea in the Broadmeadows Magistrates' Court on 26 August 2021.

13 On 12 May 2021, the applicant was charged on summons with a single offence of obtaining property by deception relating to the use of stolen credit card details to make a purchase of $7,240.28 on 13 June 2019. The matter is next listed for a mention in the Melbourne Magistrates' Court on 25 August 2021.

14 The details of the alleged offending and investigation were summarised in my reasons in Re Rahman,[4] and again more recently in Re Tiba.[5] They are not repeated here.

15 The Court is required to take into account the guiding principles set out in s 1B(1) when applying and interpreting the Bail Act 1977 ('the Act').[6] This includes, amongst other things, maximising community safety and persons affected by crime to the greatest extent possible, and taking into account the presumption of innocence and the right to liberty.[7]

16 Murder is a Schedule 1 offence within the meaning of the Act.[8] Bail must therefore be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.[9] In determining whether exceptional circumstances exist, the Court must take into account the relevant 'surrounding circumstances', including, but not limited to, those prescribed in s 3AAA(1) of the Act.[10]

17 The phrase 'exceptional circumstances' is not defined in the Act. In Re KE,[11] Kaye JA observed:

The meaning of the term 'exceptional circumstances' has been considered in a number of decisions of this Court. In essence, in order to fulfil that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.[12]

18 It is not sufficient alone that exceptional circumstances exist, but those circumstances if established must also justify the grant of bail. In Roberts v The Queen,[13] the Court of Appeal said:

What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending...

It is the perceived need to avert or mitigate such injustice which justifies the grant of bail - provided always that the circumstances can properly be characterised as exceptional.[14]

19 If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must apply the 'unacceptable risk test'.[15] That is, bail must be refused if the respondent satisfies the Court 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.[16] In considering whether any relevant risk is unacceptable, the Court must again have regard to the 'surrounding circumstances' contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[17]

20 Adam Tiba is charged with murder, unintentional killing contrary to s 3A of the Crimes Act, attempted armed robbery and possessing a handgun without a licence. He has a limited criminal history, comprising a single finding of guilt without conviction recorded for driving whilst his licence was suspended in 2020. He remains on remand.

21 Tahmid Rahman is charged with murder and unintentional killing contrary to s 3A of the Crimes Act. He has no formal criminal history but has previously completed a diversion for charges of robbery, burglary and theft. As stated, I granted him bail on 21 May 2021 with a surety of $500,000 and various conditions, including compliance with all lawful directions of the Broadmeadows Community Youth Justice Alliance, abstinence from drugs of dependence and a prohibition on his contact with the co-accused.

22 Ammair Fahal is charged with aggravated burglary, failing to comply with an order under s 465AA of the Crimes Act and committing an indictable offence whilst on bail. He has one prior finding of guilt without conviction recorded in the Children's Court for unlawful assault in 2018. He was granted bail unopposed in the Melbourne Magistrates' Court on 22 March 2021.

23 The applicant is 22 years old. He was born and raised in Melbourne, with the exception of a brief period spent living and studying in Lebanon in his early adolescence. He is the second youngest of six siblings. The applicant's father, Nawaf Hammoud, died suddenly of a heart attack when the applicant was approximately 11 years old.

24 The applicant began playing soccer at the age of eight. He was accepted to study at SEDA College from year 11 onwards on the basis of his soccer skills, and around the same time, secured one of sixteen places in the 'Melbourne Football All Stars' team, with whom he travelled to Europe to play local competitions in England, Scotland, Germany and Holland. After successfully completing his VCAL studies, the applicant undertook a diploma of sports development at SEDA College and continued to play soccer for the Fawkner Soccer Club. He was forced to stop playing soccer after finishing his studies, citing ongoing pain in his left leg resulting from a compound fracture suffered around the age of 16. Since that time, he has worked full-time in his brother's Campbellfield business, 'Hammoud Steel'. Prior to his remand, he resided with his mother and siblings in Meadow Heights.

25 In the past six years, two of the applicant's nieces and nephews died of rare genetic conditions. These events had a significant psychological impact on the applicant and his family. In a psychological report dated 7 July 2021,[18] Jeffrey Cummins diagnoses the applicant as suffering from a major depressive disorder with features of traumatisation triggered by the deaths of his niece and nephew and the injury which ended his pursuit of a professional soccer career. He has not previously received mental health treatment. The applicant reports having engaged in daily cannabis use in the 15 months prior to his remand and previous methamphetamine use. Mr Cummins opines that the applicant was self-medicating with these substances in lieu of seeking mental health treatment.

26 The applicant has a limited criminal history. On 5 August 2019, he was sentenced in the Moorabbin Magistrates' Court to a six-month community correction order for offences of possessing a controlled weapon without excuse, possessing alprazolam and committing an indictable offence whilst on bail. That sentence was appealed in the County Court, and the applicant was re-sentenced on 17 October 2019 to a six-month adjourned undertaking. On 14 January 2020, the applicant was sentenced in the Broadmeadows Magistrates' Court to a 12-month adjourned undertaking for two offences of obtaining property by deception.

27 The applicant relies upon the following matters in combination to demonstrate the existence of exceptional circumstances that justify the grant of bail:

28 It is submitted that the allegations against the applicant are weak and circumstantial. In relation to the charges arising from the June 2020 incident, it is submitted that the only evidence to support the allegations is the statements of Mr Tigani and Mr Pramatias, whose credibility is in issue. The firearm located at Mr Tigani's residence has been forensically tested and reveals no links to the applicant. In relation to the events at the Ella Court residence in July 2020, it is submitted that there is no identification evidence placing the applicant at the scene. At best there is cell tower records showing his presence in the general area, which is the same general area as his home and local suburbs. Further, there is no direct evidence to establish that the applicant was acting in concert with the co-accused or aware of the conduct of his co-accused Mr Tiba, or that he had any knowledge of a firearm being present.

29 The applicant is 22 years old, and was 21 at the time of the alleged offending. It is submitted that he has a limited criminal history relating to offences of violence.

30 The applicant enjoys the support of his large family as well as his local Islamic community. A number of letters in support of the application have been provided from the applicant's family members, including three of his siblings and one niece.[19] They each express a similar sentiment that, if bail is granted, the applicant will be strongly supported and cared for by his family in the community. The applicant's family have reached out to Alaa Elzok, who is the Imam of the Heidelberg Mosque and a qualified counsellor, in relation to the applicant. It is understood that Imam Alaa Elzok has since met with the applicant, however the outcome of that meeting, including any arrangements for ongoing contact, are not clear.

Stable accommodation and ties to the jurisdiction

31 The applicant proposes to continue residing at the family home in Meadow Heights with his mother and siblings, who are said to be of good character, if bail is granted. It is submitted with reference to the fact that all of the applicant's immediate family members reside in Victoria, that he has strong ties to the jurisdiction.

32 In a letter dated 10 June 2021, Soorah Albatat, clinical psychologist, states that the applicant's mother has previously been diagnosed with post-traumatic stress disorder and adjustment disorder, and has been receiving therapy for same since 2017.[20] Since the applicant's remand, she has been struggling with anxiety, sleep disturbance, nightmares, flashbacks and poor motivation.

33 In the event that the applicant is granted bail, he is able to immediately resume working in his brother's business, 'Hammoud Steel'. The applicant's sister, Dunia Hammoud, also works in this business. It is submitted that the applicant's absence from the business whilst on remand has placed a strain on the business itself, which has already suffered financially from COVID-19 lockdowns.

Special vulnerability and onerous conditions of custody

34 The applicant is suffering from poor mental health, as well as a longstanding physical injury to one of his legs which causes him chronic pain and discomfort. These challenges cause the applicant's time in custody to be more onerous than it might otherwise have been. The applicant hopes to receive appropriate treatment for his mental and physical health in the community, which he says is not available to him in custody.

35 Mr Jeffrey Cummins, consultant clinical and forensic psychologist, assessed the applicant via video-link on 15 June 2021. On the basis of that assessment, Mr Cummins prepared a report dated 7 July 2021 in which he expressed the opinion that the applicant suffers from a major depressive disorder of mild to moderate severity, triggered by earlier traumatic events as already described. Mr Cummins is of the opinion that it is only in the context of the applicant's current remand that the applicant has stopped to reflect on his psychological state and realised that he is feeling depressed. He has not previously undergone any psychological assessment, and therefore does not have any earlier diagnosis. In this context, the applicant's condition has been untreated, notwithstanding him self-medicating through cannabis use and, for a brief period, methamphetamines. It is Mr Cummins' opinion that the applicant genuinely appreciates his need for mental health treatment, and to this end Mr Cummins is willing to provide treatment to the applicant if bail is granted. In concluding his report, Mr Cummins expresses the view that any ongoing risk posed by the applicant can be moderated to an acceptable level through twice-weekly urine screens and regular mental health treatment.

36 The applicant has been in custody since his arrest on 21 October 2020, with the matter next listed for pre-trial hearings under s 198B of the Criminal Procedure Act 2009 on 21 September 2021. It is submitted that the applicant is likely to experience a delay in the finalisation of his matter. It is submitted that this issue is exacerbated by the applicant's period spent on remand, which has attracted additionally onerous conditions than might otherwise be the case, due to the pandemic.

37 The applicant's mother, Ibtisam Hammoud, is willing to offer a surety on behalf of the applicant by way of equity in the family home, which represents her only asset. In an sworn affidavit dated 4 August 2021, Ms Hammoud states that she is aware of the charges against the applicant, his outstanding matters and his criminal history. She states that she was overseas in Lebanon when the applicant was bailed in earlier matters. Ms Hammoud confirms that she is prepared to be a surety in this matter, understanding that the prosecution can apply to have her surety forfeited if the applicant is commits an offence whilst on bail or is non-compliant with his bail conditions. She states that she discussed whether to offer a surety with her family, and considered it for some time before reaching her decision. Finally, Ms Hammoud states that she is willing to report any non-compliance with bail, if she becomes aware of it, to the informant in this matter.

38 It is submitted that the applicant does not pose any unacceptable risk, particularly having regard to there being no previous attempts to flee the jurisdiction, interfere with witnesses, destroy evidence or commit further offences, notwithstanding the intervening period of several months between the alleged offending and his arrest. However, if the respondent does establish an unacceptable risk, it is submitted that conditions of bail can render any risk acceptable, including conditions as to residence, curfew, daily reporting, surrendering of passport and restrictions on leaving Victoria and Australia.

39 The application for bail is opposed on the basis that the applicant has not shown exceptional circumstances, and in any event is an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail.

40 In response to the applicant's written material, and in addressing the surrounding circumstances and unacceptable risk in more detail, the respondent relies on the following matters.

41 In addressing the first alleged incident in June 2020, it is submitted that there is strong identification evidence placing the applicant at the scene at the relevant time. This is relied upon by the respondent as the catalyst for the second incident in July 2020, where Mr Pacione was killed. In relation to the second incident, the telephone intercept material obtained in relation to co-accused Mr Rahman places the applicant in company with Mr Rahman and Mr Tiba in the lead up to Mr Pacione's shooting, and shortly after. It is the prosecution case that a tacit understanding existed between the applicant and his co-accused to commit an aggravated burglary at the Ella Court residence, with an intention to assault the occupants.

42 The applicant, together with his co-accused, elected to 'fast-track' the matter to the Supreme Court. Notwithstanding the pandemic, s 198B hearings have been scheduled without undue delay and are due to commence on 21 September 2021. It is not, at this stage, anticipated that there will be any exceptional delay in the matter progressing to finalisation.

43 The only submission made by the respondent with respect to the surety is by way of comparison with the surety amount offered in co-accused Mr Rahman's bail application, which was $500,000, compared with $40,000 as is offered in this case.

44 In support of the contentions on unacceptable risk, the respondent relies on the applicant's alleged access to firearms, noting that both the June and July incidents involved the use of firearms. In the case of the latter incident, the firearm is yet to be recovered. It is submitted that the applicant has displayed a willingness to commit multiple acts of significant violence while in possession of a firearm. It is further noted that the applicant was subject to charges in other matters at the time of the alleged offending in both matters, and that he is a regular cannabis user, which has the propensity to affect his judgment and increase his risk of further offending. Finally, it is submitted that the safety and welfare of Mr Tigani and Mr Pramatias is a live concern for police if bail is granted, magnified in circumstances where the charges faced by the applicant arise out of a situation where the applicant and his co-accused were allegedly seeking retribution against Mr Tigani and Mr Pramatias for an earlier incident.

45 The matters put in support of the application are essentially his family support, the availability of a surety, his recent diagnosis of a major depressive disorder, the availability of treatment for that disorder and delay in a general sense. That is, he would be required to be in custody for more than a year before his trial was likely to come on. The applicant also relied on the significance of being in detention during various restrictions as a result of the COVID-19 pandemic. As I indicated to Mr McMahon SC, who with Ms Dwyer appeared on behalf of the applicant, in argument, I am satisfied that those matters taken together satisfactorily answer exceptional circumstances. That leaves open the matters of unacceptable risk. And the real question of unacceptable risk that arises and has arisen in this series of cases is, what is the risk to the witnesses?

46 What might be said about a comparison of the evidence against each of the accused is that although there might be evidence that is sufficient to show that the applicant was present in the car, he appears to play no active role. That is to be compared with what is going on between co-accused Rahman and Tiba in particular. In the consideration of unacceptable risk, I therefore add that although it is not a necessarily weak case against the applicant, I do not regard it as a strong case. As it was pointed out by Mr McMahon SC, the case is more generally a case about aggravated burglary. That is, one way of assessing the case is that, in a tit-for-tat sort of way, the attempt to steal the money in an earlier incident is then answered by an aggravated burglary. It is therefore not a particularly strong case as it relates to murder; either at common law or constructive murder pursuant to 3A of the Crimes Act 1958.

47 The applicant has no prior convictions for offences of violence and he has open to him a structured set of living conditions with his family and structured work available to him. He has, at this stage, already spent nine months in custody and would understand the consequences of what might occur should he breach his bail.

48 I was impressed with the evidence of the applicant's brother, Fawaz Hammoud, who has expressed determination to make sure that his brother does not get involved in further criminal activity. I accept that he will actively support the applicant and control him if he needs to, and I note his preparedness to give both an undertaking to supervise his brother on bail and to make sure that his firearms are transferred to other premises.

49 I do not know that I would go so far as Mr Jeffrey Cummins and categorise the applicant was a low risk of committing an offence of violence, but I would not regard him as being any particular risk of committing such an offence. In those circumstances, I am not satisfied that the applicant is an unacceptable risk and I will grant him bail.

50 The applicant will be released on bail on his own undertaking with one surety in the sum of $30,000, and on the following special conditions:

(a) He attend the Supreme Court of Victoria in Melbourne on 21 September 2021 and then surrender himself and must not depart without the leave of the Court, and if leave is given, return at the time specified by the Court and, again, surrender himself into custody.

(b) He reside at an address known to Police in Victoria and not change that address without the leave of the Court.

(c) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail except when in the company of his mother, Ibtisam Hammoud, or his brother, Fawaz Hammoud.

(d) He present himself at the front door of the premises and during those curfew hours, if and when called upon by a member of Victoria Police to do so.

(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act without lawful authorisation under that Act.

(f) He undergo supervised urine screen each Monday and Friday and provide a sample of oral fluid for testing if required to do so by a member of the Victoria Police force, and the results of the urine screens are to be provided to the informant.

(g) He is to attend psychologist Jeffery Elwood Cummins for assessment and treatment. He is to undergo any treatment directed by Jeffrey Elwood Cummins.

(h) He is not to contact, directly or indirectly, the co-accused, that is, Adam Tiba, Ammair Fahal, or Tahmid Rahman for the duration of his bail. He not contact directly or indirectly any witness for the prosecution except the informant.

(i) He not leave the State of Victoria.

(j) He surrender any passport he may have to the informant within 24 hours. That he not attend any point of international departure.

(k) He use only one mobile phone and provide the number of that mobile phone to the informant.

(l) He reappear before the Court for judicial monitoring to review his compliance with this order at 9.30am on 5 November 2021 and any further dates this Court appoints during the course of this order.

[1] Re Rahman [2021] VSC 402. Mr Rahman was granted bail on 21 May 2021 after having previously been refused bail by me on 9 November 2020. See Re Rahman [2020] VSC 748.

[2] Re Tiba [2021] VSC 429 [43].

[3] Concerning contested aspects of an application filed on behalf of the applicant pursuant to s 198B of the Criminal Procedure Act 2009.

[4] [2020] VSC 748 [6]-[19] (Coghlan JA).

[5] [2021] VSC 429 [6]-[19] (Coghlan JA).

[6] Bail Act 1977, s 1B(2).

[7] Ibid s 1B(1)(a)-(b).

[9] Ibid ss 4AA(1), 4A(1A) and 4A(2).

[10] Ibid s 4A(3).

[11] [2021] VSC 175 (Kaye JA).

[13] [2021] VSCA 28 (Maxwell P, Niall and Emerton JJA).

[18] Affidavit in Support, Exhibit TM-3.

[19] Affidavit in Support, Exhibit TM-5.

[20] Affidavit in Support, Exhibits TM-5 and TM-8.