Re Hassan [2021] VSC 66 (19 February 2021)

1 Ilias Hassan (applicant) seeks a grant of bail in respect of ten charges allegedly committed in three separate incidents between 28 September 2019 and 23 November 2019. Two of those incidents involve the applicant's ex-partner, JA. The applicant is charged with:

• Learner driver driving without an experienced driver.

2 The applicant has been in custody since his arrest on 21 December 2019. However three months of this custodial period represents a sentence imposed in a separate matter.

3 He has previously been refused bail on two occasions in the Magistrates' Court, on 15 April 2020 and 26 June 2020. On each occasion the magistrate held that the applicant had demonstrated exceptional circumstances that justified the grant of bail but found that he posed an unacceptable risk of the behaviour nominated in s 4E(1)(a) of the Bail Act 1977 (Act). On 7 August 2020 the applicant withdrew an application for bail in this Court after the presiding judge expressed concern as to its evidential basis.

5 The charges are next listed for committal at the Melbourne Magistrates' Court on 1 March 2021.

6 The relationship between the applicant and JA was of some three years duration before they separated in September 2019. JA alleges that the relationship was marked by physical violence and other controlling, aggressive and jealous behaviour by the applicant.

7 It is alleged that the applicant observed JA send a text message to her sister about their relationship (that is, the relationship between the applicant and JA). The applicant became angry and smashed JA's mobile telephone. In response, JA pushed the applicant. He then struck her to the back of the head with a can of deodorant, causing bleeding. JA did not leave the house as she wished because she was fearful of the applicant.

8 The following day JA sought the assistance of a neighbour to call her father, who then took JA back to the family home. JA's father and his fiancé observed the injury to JA's head. JA sought medical treatment the next day.

9 It is alleged that the applicant met with his friend, FA, and asked to borrow his car. FA agreed to lend the applicant the car for a few hours. The applicant failed to attend the agreed meeting place for the return of the car and otherwise avoided FA's attempts to contact him. The car was subsequently located by police on 26 November 2019.

10 It is alleged that JA agreed to meet the applicant to discuss arrangements concerning their dog in the wake of their separation. The applicant collected JA and the dog at about 6pm in FA's stolen car. The applicant drove around the local streets while he and JA spoke.

11 During the conversation JA told the applicant that she had kissed another man. The applicant became angry and punched her to the right eye, resulting in bruising. JA asked him to drive her home, but he refused after noting the obvious bruising to her face.

12 Instead, the applicant drove the car to Keilor Village and parked under the Calder Freeway. Both the applicant and JA exited the car. They argued. At one point it is alleged that the applicant grabbed JA around the throat with both hands, bruising her neck, before hitting her to the head about five or six times. He then pushed her into the car and locked the doors. JA managed to unlock them and escape, but was chased and caught by the applicant. He dragged her back to the car, causing bruising to her arms.

13 At about 12.30am the following day, the applicant drove himself and JA to a carpark. They both slept in the car until about 6am. When they awoke they went to a park near JA's family home to let the dog run outside. At that stage JA did not want to go home due to her apparent bruises.

14 Later, the applicant and JA went to a milk bar to buy cigarettes. Whilst there, JA told a witness that the applicant had assaulted her. Upon seeing JA speak to the witness, the applicant drove away before returning shortly thereafter to collect her. The witness called emergency services to report the incident.

15 The applicant drove to a service station in Coolaroo, first dropping off JA nearby. After obtaining fuel, the applicant returned to JA and eventually took her home at about 3.30 pm.

16 The next morning, 25 November 2019, police attended JA's house where she made a formal statement. Her injuries were photographed the same day. She made a second statement on 27 November 2020.

17 The applicant was located by police on 21 December 2020, at which time he was arrested and remanded in custody.

18 The applicant is 23 years of age. He was aged 22 years at the time of the alleged incidents. He is one of five children to his parents, who came to Australia from Somalia as refugees.

19 The applicant completed year 11 at school before commencing a plumbing apprenticeship, but drug use impacted his ability to work. The applicant has taken illicit drugs, particularly methylamphetamine, cannabis and GHB, since the age of 14 and has not reported any period of abstinence during this time. Evidence tendered on the application indicates that he meets the diagnostic criteria for Substance Abuse Disorder.

20 Since being in custody, the applicant has apparently been drug free. Two urine screen results from 1 September 2020 and 24 November 2020 both show negative results for drugs.

21 In January 2021, the applicant was assessed as being suitable for 'The Cottage', a residential rehabilitation facility in Shepparton. His family has paid a $5,500 deposit to secure his place. He is also engaged with the Somali Australian Council of Victoria, which provides integration supports and at-risk family supports to Somali people living in Victoria. The Court has received a letter of support for the applicant from Dr Hussein Haraco, the Secretary of that Council.

22 During his time in custody, the applicant has been working as a powder-coater and now holds a supervisory position.

Criminal history and family violence intervention order

24 Dating from 2015, there are numerous convictions for driving offences and as well as offences of violence and dishonesty. He has also twice been convicted of contravening a community corrections order (CCO), twice been convicted of failing to answer bail and convicted for both contravening a conduct condition of bail and committing an indictable offence whilst on bail.

25 At the time of the alleged offending, the applicant was subject to six outstanding warrants for his arrest, all of which were executed on 22 December 2019. These matters were resolved by way of consolidated plea at the Melbourne Magistrates' Court on 21 April 2020. This included the cancellation of a CCO and the applicant being resentenced on the original charges. The total effective sentenced imposed of six months imprisonment was, on 27 May 2020, reduced on appeal by the County Court to three months, reckoned as time served.

26 On 9 April 2020 an interim family violence intervention order (FVIO) was made against the applicant, with JA named as the protected person. It has full conditions for her protection, but for a condition allowing non face-to-face contact.

27 Section 1B of the Act sets out its guiding principles, which include maximising community safety and taking account of the presumption of innocence and the right to liberty.

28 Section 4 of the Act establishes that a person accused of an offence and held in custody in relation to it is entitled to be granted bail unless the Act requires the bail decision-maker to refuse bail.

29 Section 4AA delineates the situations in which the exceptional circumstances test applies to a decision whether to grant bail. As is agreed between the parties, one of those[1] applies here, as the applicant is accused of a Schedule 2 offence alleged to have been committed while he was at large awaiting trial for a Schedule 2 offence.

30 It follows that bail must be refused unless the applicant demonstrates the existence of exceptional circumstances that justify the grant of bail. In considering whether exceptional circumstances exist, the Court must take into account the surrounding circumstances including, but not limited to, those prescribed in s 3AAA of the Act.

31 In this matter, the prosecution concedes that it is open to me to find the existence of exceptional circumstances due to a combination of factors, but particularly because there is a risk that the applicant would serve more time on remand than any likely custodial sentence in the event of his conviction on the primary charges.

32 If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[2] Bail must be refused if the Court is satisfied by the prosecution that there is a risk that the applicant would engage in any of the s 4E(1)(a) conduct and that such a risk is an unacceptable one. In applying this test the Court must again take into account the surrounding circumstances[3] and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[4]

33 As the applicant has been charged with a family violence offence, the Court must consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.[5]

34 As noted above, there is no dispute that it is open to the Court to find that the applicant has demonstrated the existence of exceptional circumstances.

35 The phrase 'exceptional circumstances' is not defined in the Act, but its meaning is beyond controversy and has been considered many times by judges of this Court. It means that the cumulative effect of the circumstances relied upon must be something other than ordinary.

36 The applicant relies upon the combination of the following circumstances to demonstrate exceptional circumstances. First, the availability of The Cottage residential rehabilitation program. Second, the delay in the matters being heard resulting in the real risk that he will spend more time on remand than he would receive on any ultimate sentence. Third, the impact of the COVID-19 pandemic on his conditions of custody. Fourth, uncertainties in the prosecution case particularly with respect to JA. It was submitted that she has expressed unwillingness to give oral evidence and, in any event, there are live issues as to her reliability. Fifth, the relative youth of the applicant. Sixth, his ties to the jurisdiction and family support.

37 In my view the applicant has demonstrated exceptional circumstances. Critical to that finding is the very fair concession made by Mr Hutton as to the risk that time spent on remand will exceed any ultimate sentence. I accept his characterisation of the offending as low to moderate examples of serious offences. And, given the applicant's youth and his apparent desire to engage with drug rehabilitation, the available sentencing range is very wide.

38 In this respect I note the opinion of Ms Maria Hutchinson, an addiction treatment counsellor and the CEO of The Cottage. Ms Hutchinson gave evidence on the application, having previously authored a letter about her assessment of the applicant. She is of the opinion that the applicant is 'in a state of willingness and readiness' to engage with drug rehabilitation.

39 With respect to the issues raised by the applicant as to JA, I note that the evidence of the informant was that he had spoken to her the day before the application was heard and that she said she was ready to give evidence and participate in the committal. She had previously said that she wanted the whole thing to 'disappear' but had never said that she would not give evidence. And she has consistently said to the informant that she has always told the truth.

40 The prosecution maintains that the applicant presents an unacceptable risk of all of the behaviours prescribed in s 4E(1)(a) of the Act.

41 The thrust of the submission is that the applicant has demonstrated scant regard for court orders in the past, as evidenced by his convictions for bail offences and breaches of CCOs, and no condition imposed upon him would be sufficient to ameliorate the risk he poses to an acceptable level.

42 In response, the applicant relies principally upon the available place at The Cottage and the ability of the managers of that program to ensure his compliance with any conditions of bail.

43 The Cottage is a privately funded not-for-profit organisation with a residential therapeutic community model. It offers a participative, group-based rehabilitative approach to drug addiction (as well as mental illness and personality disorders). It requires residents to abstain from alcohol and other drugs for the duration of the four-month program. There are four phases to the program and the availability of transitional housing at its completion.

44 Ms Hutchinson gave evidence that residents are not 'locked down' but there are CCTV cameras throughout the facility and for residents who are subject to bail, any breach of a condition by that resident is immediately reported to the informant upon its discovery. During the first phase, termed 'safety' and which endures for about four weeks, residents are not allowed access to mobile telephones, have visitors or leave the premises.

45 The applicant also relies upon the fact that his parents, who lack financial means, have funded the deposit to the Cottage by way of savings and a loan as imposing 'social pressure' on him to comply with bail conditions and not reoffend.

46 I accept the evidence of Ms Hutchinson that the administrators of The Cottage would notify the informant in the event that the applicant was in breach of any bail condition. I also accept her opinion that the applicant is in a state of 'willingness and readiness' to engage with drug rehabilitation. Although the two urine drug screen results tendered on the application are now slightly dated, it would appear that the applicant is currently drug free. He has also managed to managed to maintain a supervisory role in his work as a powder-coater. The applicant has now been in custody for more than 12 months.[6] It is a significant period to a young man of 22/23 years, particularly as it is his first time in custody.

47 The informant, when asked directly, stated that in his opinion the applicant's drug addiction was a 'major' contributor to the applicant's offending. If that be the case, measures that can be taken to address that addiction must necessarily reduce the risk of the applicant reoffending or engaging in any of the other s 4E(1)(a) behaviours, including, particularly, his ability and willingness to abide by orders of a court.

48 That said, I must consider whether the applicant presents an unacceptable risk of interfering with a prosecution witness, JA and, pursuant to s 5AAAA(2) whether there is a risk that he would commit family violence.

49 The evidence of the informant is that since the applicant has been in custody there have been in excess of 1,000 telephone calls between the applicant and JA. Most of those were made by the applicant to JA. There is no suggestion that this is in breach of the interim FVIO, but it is suggestive of an ongoing entanglement and, perhaps, pressure being applied by the applicant. In this regard I am cognisant that in her police statements JA said that during the charged incidents she was in fear of the applicant and that their relationship generally was marked by physical violence and the applicant's controlling, aggressive and jealous behaviour. She has also been unwilling to return to her family home when she had obvious bruising.

50 On the other hand, the content of the telephone calls between the applicant and JA is unknown and JA told the informant that she was 'fine' with the idea of the applicant being on bail and supportive of him receiving rehabilitative treatment for his drug use. The informant stated that JA very much considers the applicant to be her ex-partner.

51 Considering all of these matters, I am of the view that the risk posed by the applicant that he will engage in the s 4E(1)(a) behaviours can be sufficiently ameliorated by appropriate bail conditions. Further, I am of the view that the risk the applicant poses of committing family violence be similarly ameliorated.

52 This can be achieved by the applicant's continued residence away from Melbourne in a strictly supervised, therapeutic environment, with the understanding that any breach of bail conditions will be immediately reported to the informant. In this regard, I propose to impose conditions that are more restrictive upon the applicant than would otherwise be the case if he successfully transitioned through the stages of The Cottage program. With respect to JA, although the interim FVIO allows for non face-to-face contact with her, the conditions of bail will not.

53 The applicant will be admitted to bail on his own undertaking with the following conditions:

1. The applicant is, upon release, to travel directly to The Cottage, 6-8 Andrews Road, Shepparton, in the State of Victoria (The Cottage).

2. The applicant is to reside at The Cottage until further order of a court.

3. The applicant must not leave the premises of The Cottage except in the company of a staff member of The Cottage.

4. The applicant must comply with all lawful directions of the staff at The Cottage.

5. The informant or his delegate may attend at The Cottage from time to time to confirm the applicant's presence at The Cottage.

6. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant.

7. Specifically, the applicant is not to contact, either directly or indirectly, JA.

8. The applicant is not to consume alcohol or other drugs, except as prescribed by an appropriately qualified medical practitioner.

9. The applicant is to attend the Melbourne Magistrates' Court on 1 March 2021, either in person or by means of audio-visual link, as determined by that Court.

[5] The Act, s 5AAAA(2). A 'family violence offence' is defined in s 3 of the Act to include an offence where the conduct of the accused is 'family violence'. In turn, 'family violence' for the purposes of the Act has the same meaning as in the Family Violence Protection Act 2008 (Vic).

[6] As noted above, three of which are referrable to a custodial sentence.