Re Mallouk [2019] VSC 661 (26 September 2019)

1 This is an application for bail by Shaddy Mallouk (the 'applicant'). He is charged with a total of 33 offences, including attempted burglary (7 counts), burglary (14 counts), theft (9 counts), arson (2 counts) and dealing with property suspected of being the proceeds of crime. The charges relate to a series of attempted burglaries, burglaries and thefts on commercial premises between 14 January 2019 and 4 June 2019 - the day on which the applicant was apprehended.

2 Significantly, during part of this period of offending, the applicant was subject to an 18-month Community Corrections Order ('CCO'). The CCO was imposed following a conviction for burglary on 1 September 2017 and expired on 1 March 2019.

3 The applicant is alleged to have committed a number of indictable offences whilst subject to a CCO for indictable offence, which is a Schedule 2 offence within the meaning of the Bail Act 1977 (Vic) (the 'Act'). He is therefore required to demonstrate a compelling reason that justifies the grant of bail.[1]

4 The applicant has been in custody since 4 June 2019. A previous application for bail before the Melbourne Magistrates' Court on 1 July 2019 was refused on the basis that he had failed to demonstrate a compelling reason. The present application for bail was filed on 5 September 2019.

5 The committal in this matter proceeded by way of a straight hand-up brief and is now listed for a trial in the County Court on 5 October 2020.

6 In addition to the matters outlined above, the applicant is also charged on summons with contravening the CCO imposed on 1 September 2017. That matter is next listed for hearing on 26 November 2019 at the Werribee Magistrates' Court.

7 The applicant has a co-accused in this matter, Mohamad Ali (the 'co-accused'). He is alleged to have been involved in all but three of the incidents concerning the applicant. He is charged with attempted burglary (10 counts), burglary (12 counts), theft (eight counts) and arson (two counts). He was granted bail on 5 June 2019. His matter is currently listed for a contested committal hearing on 19 November 2019 and indications are that the matter will resolve to a plea.

8 The bail conditions for the co-accused include that he surrender any valid passports or travel documents, not attend international points of departure, not associate with the applicant, and remain in his residence between 10 pm and 6 am. It is noted that the co-accused was granted bail on the basis that any risk resulting from his release could be ameliorated by the imposition of bail conditions.

9 In summary, the prosecution case is that, between 14 January and 4 June 2019, the applicant and the co-accused committed a series of attempted burglaries, burglaries and thefts from commercial premises in the western suburbs of Melbourne. They primarily targeted businesses that stocked large amounts of cigarettes. It is alleged that the applicant and co-accused predominantly committed the offences together; however, there are a number of occasions where they are said to have acted independently.

10 Generally, the method of operation is alleged to involve the applicant and his co-accused going to the targeted business premises in the early hours of the morning, dressed in dark clothing, and occasionally wearing 'Guy Fawkes' or 'Anonymous' masks to conceal their identity. They would gain access to the premises by using a crowbar to force open the front doors. Once inside, they would primarily steal cigarettes. Throughout the commission of the offences, the accused and co-accused would remain in contact via telephone.

11 In relation to the charges of arson, it is alleged that the applicant and co-accused set fire to two of the burgled premises on 2 February and 11 February 2019.

12 In total, the burglaries netted in excess of $100,000 worth of cigarettes and caused property damage in excess of $650,000. They are sobering figures and, on any view, demonstrate that this offending, if it is proved at trial, is serious.

13 Following the first instance of burglary and arson at a gift store in Melton, police attended to a report of a small fire in a stormwater drain in Little River. There they recovered clothing and other items - including Guy Fawkes masks, gloves and shoes - from the scene. The clothing is alleged to match that depicted as being worn by the offenders during the Melton arson on CCTV. DNA evidence obtained from that clothing is said to indicate DNA contributions from both the applicant and co-accused.

14 On 4 June 2019, following a burglary at a Seddon FoodWorks store, in which 300 packets of cigarettes were stolen, the applicant and co-accused were observed by a surveillance team to be transporting the cigarettes in a trolley before loading them into the boot of a vehicle. The applicant and co-accused were confronted by police, but they fled and were subsequently arrested a short distance away. At that stage, both were observed to be wearing dark clothing and gloves, and attempting to conceal their faces. A search of their vehicle located stolen cigarettes, tools utilised for breaking and entering premises, and also a sum of about $4,400 in cash.

15 In addition to the DNA evidence, the prosecution case is said to be supported by CCTV footage obtained from a number of burgled premises. The applicant was identified by police from CCTV footage taken from several burglaries during the charged period due to his 'distinct body shape'.

16 The prosecution also relies on surveillance conducted by police operatives as well as call charge records, General Packet Radio Service ('GPRS') data and cell tower records that indicate the mobile phones of the applicant and the co-accused were in the vicinity of each premises at the relevant time and were in contact throughout the commission of the alleged offences. This information accords with CCTV footage that shows the applicant and his co-accused using their mobile phones at the premises.

17 During his record of interview, the applicant made no admissions in relation to the alleged offending. He stated that he was simply 'looking out' for the co-accused while the co-accused 'did his thing'. He further stated that his link to the investigation is a 'massive coincidence' and provided no explanation for why his DNA was located on items linked to the burglary and arson in Melton on 2 February 2019.

18 The co-accused made admissions about his involvement in the commission of some of the burglaries, but indicated that the applicant had been the organiser. He stated the applicant sourced and destroyed clothing used during the offences. He also asserted that the applicant took a larger percentage of the proceeds from the sale of the stolen cigarettes.

19 The applicant 23 years of age. Before his arrest, he lived at his parents' home in Douglas Street, Altona North. It is proposed that, should he be released on bail, he will return to that address.

20 I am uncertain as to his employment status prior to his remand.

21 He has a criminal history that dates back to 2016. It includes convictions for theft in 2016 and 2018, burglary in 2017, and contravention of an adjourned undertaking in 2017.

22 As previously mentioned, the applicant was made subject to a CCO on 1 September 2017 following a conviction for one count of burglary. A contravention report, dated 4 June 2019, indicates that he has incurred 22 unacceptable absences across all conditions of the CCO - 19 of which related to community work.

23 In view of the present charges and his non-compliance with the CCO, the Department of Justice has recommended that the CCO be cancelled and the applicant be re-sentenced for his burglary conviction. That matter was adjourned pending the outcome of this bail application and is listed for hearing on 26 November 2019 at the Werribee Magistrates' Court. To be clear, nothing in this decision should be regarded as an impediment to whichever course the Magistrate might choose to take in that hearing.

24 The applicant is entitled to bail unless the Act requires the Court to refuse bail. In the circumstances of the present application, the Court must refuse bail unless first satisfied that a compelling reason exists justifying the grant of bail and that any risk the applicant might present if granted bail could be mitigated to an acceptable level.[2]

25 The burden of satisfying the Court that a compelling reason exists rests with the applicant.[3] The Court must also take into account the relevant 'surrounding circumstances' as set out in s 3AAA of the Act in considering whether a compelling reason exists.

26 The meaning of 'compelling reason' was discussed by Beach JA in Re Ceylan [2018] VSC 361. In that decision, His Honour found that a compelling reason is one that is a 'forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant was not justified'.[4] Although the statutory provisions considered in Re Ceylan were later amended, Beach JA found that this definition still applied to the provisions that are currently in force.[5] His Honour's definition has been cited with approval by this Court on many occasions.[6]

27 If the Court is satisfied that a compelling reason exists that justifies the grant of bail, then ss 4C(4) and 4D(1)(b) of the Act require the Court to apply the 'unacceptable risk' test. Pursuant that test, the Court must refuse bail if there was an unacceptable risk the applicant would, if released on bail:

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

(ii) commit an offence while on bail; or

(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.[7]

28 In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court again to have regard to the relevant 'surrounding circumstances' within s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to reduce the risk so that it is not an unacceptable risk.

29 Further, when interpreting the Act, the Court is required acknowledge the guiding principles set out in s 1B of the Act, which provides as follows:

(a) maximising the safety of the community and persons affected by crime to the greatest extend possible; and

(b) taking account of the presumption of innocence and the right to liberty; and

(c) promoting fairness, transparency and consistency in bail decision making; and

(d) promoting public understanding of bail practices and procedures.

30 The applicant, represented by Mr Hannebery of senior counsel, submitted that there are a number of factors that, in combination, constitute compelling reasons that justify the grant of bail.

31 The first of those is the community's interest in supporting the applicant's rehabilitation. In support of that submission, the applicant refers to the judgment of Riordan J in Re Gaylor [2019] VSC 46 (Re Gaylor). In that matter, His Honour considered the community's interest in granting the applicant bail as the principal factor in the existence of a compelling reason. His Honour noted that the applicant was youthful, with a limited criminal history, and had real prospects of rehabilitation with community-based treatment and strong family support.

32 In reaching that conclusion, his Honour reiterated that the guiding principles of s 1B(1) of the Act included 'maximising the safety of the community'. He considered that this principle should be extended to include the safety of the community in the long term - that is, when the offender is released into the community following the determination of the substantive matter. In his Honour's view, releasing the applicant on bail to receive intensive support and treatment supported his application as they increased his chances of rehabilitation and minimised the long-term risk of reoffending.

33 Mr Hannebery, on behalf of the applicant, submitted that, given his age, the applicant has a real prospect of rehabilitation if granted bail; further remand, on the other hand, may have the opposite effect. It was also submitted, again by reference to Re Gaylor, that his compliance with bail conditions will advance his prospects of rehabilitation in relation to any sentence that may be imposed.

34 With great respect, I am slightly uncomfortable with some aspects of his Honour's reasoning in Re Gaylor. An application for bail is very much a short-term application whereas the long-term rehabilitation of an applicant is largely a factor for consideration within the sentencing process.

35 The second factor relied on was the strength, or lack thereof, of the prosecution case. Counsel for the applicant submitted that there are issues to be determined and the case is, in many respects, a circumstantial one - especially given the reliance on the evidence relating to the accused's mobile phone. It was also noted that no stolen property was found at the applicant's address, and there is no evidence that the applicant has benefited from the alleged offences. I would not regard the prosecution case as week in any sense.

36 The applicant, through Mr Hannebery, next submitted that the applicant will spend a significant period of time on remand prior to the trial. It is not contested that the time before trial is likely to be of the order of 17 months. Although this is a lengthy period of pre-sentence detention, Mr Hennebery did not specifically submit that this period would exceed, or would be likely to exceed, any sentence that might be imposed on the applicant were he to be found guilty of these matters. As will be seen, I do regard this matter as significant.

37 It was also submitted that the applicant has a relatively limited criminal history, which does not include a failure to appear or contravention of bail conditions.

38 Particular reliance was placed by Mr Hannebery on the support that the applicant has from his family and his available accommodation. Indeed, a number of the applicant's family were present in court to support him at the hearing of this application. It is proposed that the applicant would return to live with his parents and siblings at the address he resided at prior to his remand. It was submitted that the applicant's parents are not currently employed and are therefore in a position to provide close supervision. His sister and her husband also live in close proximity and are willing to support him.

39 It is not contested that the applicant has been offered full-time, ongoing employment with a business known as Perfect Smash Repairs. This offer was confirmed by a letter from the business owner. It appears the business premises is close to the applicant's proposed residence. Full-time employment may be to his significant benefit from the point of view of both rehabilitation and the avoidance of offending.

40 Finally, the applicant's family are willing to provide a surety. Further details of that surety have not been provided, but Mr Hannebery assures me that a surety of $12,000 is available.

41 Issues of parity were also raised in the material filed in support of the application. It is enough to note that there are significant differences between the applicant's position and that of his co-accused.

42 In relation to the risk if the applicant is released, it is submitted that with strict bail conditions, the risk can be reduced to an acceptable level.

43 Mr Hannebery, on behalf of the applicant, relies upon the nature of the alleged offending as being conduct that, whilst serious, did not necessarily demonstrate a propensity to do physical harm or violence to members of the community. It was submitted that the applicant's risk of endangering the safety of the community is reduced by his strong family support and availability of employment.

44 Mr Devlin of counsel, on behalf of the respondent, fairly conceded that a delay of 17 months was a matter of considerable concern and was a delay that he did not condone. Ultimately, Mr Devlin was of the view that, if the Court was concerned by the length of that delay, it would be open to the Court to conclude that the delay in itself would amount a compelling reason justifying a grant of bail.

45 In response to the applicant's particular submissions on the strength of the prosecution case, Mr Devlin did not take issue with the characterisation that it was a circumstantial case. He pointed out that the strength of the case against the applicant in relation to the last burglary was, in fact, overwhelming because the applicant was arrested during its alleged commission. Accordingly, the circumstantial case against the applicant in relation to the other offences was strengthened by those circumstances.

46 As to the issue of risk, he also noted that the accommodation proposed is the same residence in which the applicant had been living during the period of the alleged offending and that the offences occurred during the night and the early morning, when his parents may have no supervision of his movement. Additionally, the co-accused currently lives close to this proposed address. Obviously a release on bail would require the imposition of a curfew.

47 With respect to the issue of parity, Mr Devlin also noted that unlike that applicant, the co-accused has no history of convictions for burglary or theft. The co-accused was also not subject to any court orders at the time of the alleged offending and therefore had a presumption in favour of bail. As a result, the respondent submits that a comparison cannot be made between their circumstances.

48 The respondent also took issue with the characterisation of the applicant's prior history. In particular, the respondent referred to the contravention report that alleges the applicant's failure to comply with his CCO.

49 In relation to risk, I perceive Mr Devlin's final position to be that there remained an unacceptable risk that the applicant would commit further offences similar to those with which he is charged. It was also submitted that, although the alleged offences were committed against commercial premises rather than individuals, I should be cautious about diminishing the seriousness of those matters.

50 As is often the case, this application causes me some concern. On the face of it, the applicant has tended to both flout the rules that have been imposed on him and to allegedly engage in a complex and well-organised course of offending. The applicant's history of compliance is unsatisfactory - particularly in relation to the CCO to which I have referred - and it is concerning that some number of these offences are alleged to have been committed whilst that order was in force. Ordinarily those circumstances might well lead to a refusal of bail.

51 Nevertheless, and despite some misgivings, it is the length of time now to be spent in custody by the applicant that causes me most concern. Regrettably, the criminal justice system has become inured to delays such as this. In my view, that delay is simply unacceptable particularly for a young applicant who offers at least the prospect of family support, employment and a reversion away from offending. I am simply not prepared to put aside a 17-month delay as being a typical problem in the system that must be tolerated.

52 The length of this delay is, to use the words of Beach JA, 'a forceful, and therefore convincing, reason showing that, in all the circumstances, the continuation of the applicant's detention is not justified'. On that basis, and in combination with the other matters the applicant has relied upon, I am satisfied that a compelling reason has been established which would justify a grant of bail.

53 In view of the nature of the offending, I am also satisfied that the risks that would flow from the release of the applicant on bail would be ameliorated by the imposition of strict conditions; stricter than those proposed by the applicant.

54 I therefore propose that the applicant be released on bail on his own undertaking with a surety in the amount of $12,000 and with the following conditions:

1. The applicant is to reside at 3 Douglas Street, Altona North in the State of Victoria ('place of residence'), which place of residence is to be varied only by order of a court;

2. Other than in the case of emergency or unless accompanied by his mother, Ruba Mallouk, or father, Rolando Mallouk, the applicant is not to be absent from his place of residence between the hours of 10 pm and 6 am (the 'curfew hours') and is to present himself at the front door of his place of residence upon the reasonable request by a member of Victoria Police during the curfew hours;

3. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant, Detective Senior Constable Joshua Curwood;

4. The applicant is not to contact or associate with, either directly or indirectly, his accomplice, Mohamad Ali;

5. The applicant is to report to the officer-in-charge of the Altona North Police Station each day between 6 am and 9 pm;

6. The applicant is to surrender any passport or travel document in his possession to the informant Detective Senior Constable Joshua Curwood or his nominee within 24 hours of being released on bail, and is not to apply for any other such passport or travel document;

7. The applicant is not to leave the State of Victoria without giving seven days' notice to the informant Detective Senior Constable Joshua Curwood, which notice must include the applicant's reason for seeking to leave the State of Victoria;

8. The applicant is not to attend any point of international departure; and

(a) the Werribee Magistrates' Court on 26 November 2019; and

(b) the County Court of Victoria at Melbourne on 31 July 2020;

[1] See Bail Act 1977 (Vic) ss 4AA(3) and 4C ('Bail Act').

[2] Bail Act s 4C(1A).

[3] Ibid s 4C(2)

[4] [2018] VSC 361 [47].

[5] Re Alsulayhim [2018] VSC 570 [28]-[29].

[6] See Re Abaker [2018] VSC 714; Re Gaylor [2019] VSC 46; Re JM [2019] VSC 156; Re Neskovski [2019] VSC 447.

[7] Bail Act s 4E(1)(a).