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[2017] VSC 413
General information, not legal advice.
Supreme Court of Victoria
2017-07-13
Beale J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Show cause - Offences involving family violence - Firearms offences - Delay - Significant criminal history - History of drug use including methamphetamine - Unacceptable risk - Bail Act 1977 (Vic) ss 4(4)(a), 4(4)(c), 4(4)(d) and 18AA(1)(a) - Bail refused.
1 The applicant Steve Al-Jinavo (DOB: 13 August 1986) seeks bail. He has been on remand since he was arrested on 6 February 2017.
2 He was arrested after an incident the day before when, allegedly, he physically assaulted and threatened his former domestic partner, Ms Lola Kanjou. The charges laid by Informant Norris are:
3 I am also informed that Norris has laid several further charges in respect of the applicant's arrest on 6 February 2017. According to paragraph 5 of her affidavit in opposition to bail, they are:
4 The applicant is also facing a number of charges for other offences committed or allegedly committed between November 2016 and February 2017. I will say more about those charges in a moment.
5 This is the applicant's second application for bail to this court on the Norris charges, bail having been refused by Lasry J on 13 April 2017.[1] Accordingly, pursuant to s 18AA(1)(a) of the Bail Act 1977 ("the Act"), the applicant needed to demonstrate new facts or circumstances in order to make a fresh application for bail.
6 The applicant relied on two matters to establish new facts and circumstances - first, delay in the hearing of the Norris charges (which are now listed for summary contest in late November 2017) and, second, some DNA parentage results, of which I will say more later. The prosecutor conceded that new facts and circumstances were made out based on delay, even though he still opposed the grant of bail.
7 During the hearing, I found that new facts and circumstances were made out and the hearing proceeded by way of submissions. No evidence was called, the parties content to rely on the affidavit material.
8 The applicant must show cause as to why his detention in custody is not justified, pursuant to ss 4(4)(a), (c) and (d) of the Act. This is because he has been charged with committing an indictable offence whilst on bail, using a firearm in the commission of an indictable offence and breaching bail.
9 In his reasons for refusing bail in April this year, Lasry J described the alleged offending the subject of the Norris charges as follows:
[4] These charges arise from in incident where, it is alleged, on 5 February 2017, the Applicant drove his former partner, Ms Lola Kanjou, and their son to his parent's house in Westmeadows. I gather the context of these events is that the Applicant denies paternity of this child. Ms Kanjou says she and the applicant had been in a relationship for 3 years.
[5] On 5 February 2017, the applicant and Ms Kanjou have met at Epping at about 6:30pm and then, upon arrival at the Westmeadows home, the Applicant directed Ms Kanjou and the child into his parents' garage where he attempted to take a DNA swab from the child for the purposes of a paternity test.
[6] At this point an argument erupted between the Applicant and Ms Kanjou during which the Applicant physically assaulted her causing bruising to her forehead and face as well as swelling to her left eye. He also threw and smashed her mobile phone.
[7] It is alleged the applicant's sister, having heard screams emanating from the garage, interrupted the assault at which point the Applicant left the garage before returning holding a silver handgun and allegedly stating "I'm going to shoot and kill you and the baby" and "I want to go to jail".
[8] The following day, 6 February 2017, the Applicant was being watched by police driving an Audi motor vehicle. He was arrested by them and a loaded silver handgun was found under the driver's seat. The applicant was taken to Broadmeadows Police Station and on interview declined to answer any questions.[2]
10 I note that the applicant has since obtained DNA parentage results dated 16 June 2017 which indicate Ms Kanjou's child is not his son. He relied on these results as part of the new facts and circumstances. He also relies on them as casting doubt on the credibility of Ms Kanjou, who had maintained he was the father. In the first affidavit in support of the application for bail, the applicant contends that the prosecution has a weak case on the Norris charges because of the complainant's alleged credibility problems.
11 The DNA parentage results might be considered a 'double-edged sword' for the applicant. The fact that the applicant obtained them lends credibility to Ms Kanjou's account that they had a dispute on 5 February 2017 over the child's paternity. Her credibility is also bolstered by her prompt complaint to police on the night of 5 February 2017 and police photos of what appears to be recent bruising suffered by her. I, like Lasry J,[3] would not describe the case against the applicant on the Norris charges for 5 February 2017 as weak.
12 As mentioned earlier, the applicant is also facing other charges, from four separate informants, namely Walsh, Smith, Nader and Bisongo. These matters are listed at the Broadmeadows Magistrates' Court on 31 August 2017 for contest mention (in respect of the charges laid by Informants Walsh and Bisongo) and plea (in respect of the charges laid by Informants Smith and Nader).
13 In relation to the Walsh charges - which concern alleged incidents in November 2016 - the applicant was arrested, charged and bailed by Informant Walsh on 1 February 2017, just 4 days before the Norris charges. It is alleged that on 23 November 2016, the applicant was driving a BMW X5 motor vehicle erratically on Pascoe Vale Road, Roxburgh Park. Police followed the vehicle along Somerton Road until it became stationary in the right hand turning lane to enter the Western Ring Road. Police activated their lights and sirens in order to speak to the driver. As police left their vehicle to approach on foot, the applicant accelerated in a forward direction and rammed the back of a stationary unmarked police vehicle which was unrelated to the attempted interception. The unmarked police vehicle was pushed into the intersection, causing minor damage. A pursuit ensued, but, due to the risk to other road users, it was eventually terminated. During the pursuit the vehicle was captured by a speed camera at the intersection of Devon Road travelling at 148km/h in a 60km/h zone.
14 The vehicle was later found abandoned in Watt Avenue, Pascoe Vale. Later enquiries revealed that the BMW was stolen. The applicant is charged with offences including theft of the motor vehicle, reckless conduct endangering serious injury, speeding, dangerous driving, failing to stop and criminal damage.
15 I understand that the Defence have indicated that identity is an issue in relation to the Walsh charges.
16 In relation to the Smith charges, on 12 December 2016 a search warrant was executed at the applicant's home address. Police located and seized a butterfly knife, a taser that had the appearance of a torch, approximately 30ml of the drug GHB and a small bag containing 0.1 grams of methamphetamine. He was charged and bailed on his own undertaking. As mentioned, these charges are listed for plea.
17 In relation to the Nader charges, on 28 January 2017, little more than a week before the incident the subject of the Norris charges, the applicant was detected by police driving at 111km/h in a 100 km/h zone. At this time he was a Victorian probationary driver's licence holder and subject to an alcohol interlock condition. On that date, the vehicle did not have P plates displayed or an interlock installed, as required by the interlock condition.
18 An oral fluid test was conducted for the purpose of testing for illicit drugs. The sample contained methamphetamine and cannabis. The applicant was charged on summons on 6 May 2017. As mentioned, these charges are also listed for a plea.
19 In relation to the Bisongo charges, on 6 February 2017 police executed a search warrant at the applicant's home address in relation to the investigation for the Norris charges. They located a silver iPad which was later determined to have been stolen during a burglary on 29 December 2016.
20 On 24 February 2017, a further warrant was executed at the same address. Police located a silver Macbook Pro, a white Macbook and a gold iPad Air. Enquiries later revealed these items to have been stolen during a car theft on 22 July 2015 and a burglary on 25 December 2016.
21 The applicant was charged on summons with handling stolen goods. These matters are also listed for contest mention.
22 If found guilty on the Norris charges for the 5 February 2017, I consider it very likely that the applicant will receive a sentence of immediate imprisonment for at least as long as the period spent on remand. A fortiori, if the applicant is also found guilty of the Norris charges for 6 February 2017.
23 The complainant, Ms Kanjou, alleges that on 5 February 2017, the applicant, after physically assaulting her in the garage of his parent's home, left the garage briefly and returned with a hand gun and said to her: "I'm going to shoot and kill you and the baby." If the two charges of threatening to kill and the charge of being a prohibited person in possession of a firearm are found proven, they are likely to be viewed as serious examples of such offending, especially given their occurrence in a domestic setting.
24 The applicant did not deny the seriousness of the allegations made by Ms Kanjou[4] but, relying on Boulton's case,[5] submitted that even if the applicant is found guilty on the Norris charges, the ultimate disposition may be a community corrections order (CCO) combined with a sentence of imprisonment less than time spent on remand. Not only does the seriousness of the alleged offending count against this submission but the applicant's prior criminal history does to.
25 The applicant may have limited priors for offences involving violence, but the following features of his criminal history should be noted. First, he has priors for weapons offences. On 20 August 2014, on an appeal to Melbourne County Court, he was convicted of being a prohibited person in possession of a firearm and possessing cartridge ammunition without a license or permit. He was also convicted on the same day of 3 counts of possessing a weapon without exemption.
26 Second, he has received multiple and substantial sentences of imprisonment in the past: in March 2010, a total effective sentence of 2 years with a non-parole period of 12 months; in October 2011, an aggregate sentence of 3 months; in November 2011, an aggregate sentence of 4 months, wholly cumulative on the October sentence; in August 2014, a total effective sentence of 2 years and 3 months with a non-parole period of 14 months. With time served, he was released on parole sometime in early 2015.
27 Third, the applicant has a history of breaching community based dispositions: in May and September of 2007, he was found to have failed to comply with community based orders; in March 2010, he was found to have breached a suspended sentence of imprisonment; in November 2013, he was found to have contravened a CCO. As the applicant's counsel submitted, breaches of previous community based dispositions do not automatically disqualify one from being placed on another order of that kind but the applicant's history in this regard undermines the submission that, even if found guilty on the Norris charges, he may receive a sentence of imprisonment that is less than the time to be spent on remand.
28 Even if the applicant were to receive a sentence of immediate imprisonment less than the time spent on remand, it is difficult to imagine that it could be much less.
29 The applicant's drug history also causes me concern.[6] On his own admission, it is a longstanding problem. Both the first affidavit in support of his bail application and the psychological report exhibited to that affidavit indicates he has been using illicit drugs since he was in his teens. From the age of 22, he was a daily ice user. In the psychological report of Warren Simmons dated 11 April 2017, the applicant is reported to have claimed that "he has not used [methamphetamine] for about a year now...and denied any other substance use."[7] This does not sit easily with the fact that, in relation to the Smith charges - to which he has indicated he is pleading guilty - police located at his home address on 12 December 2016 a small bag containing 0.1 grams of methamphetamine and 30ml of GHB.
30 The applicant submitted that he is now motivated to address his drug and psychological issues. I hope that is so. He also submitted that he has a new girlfriend, and since DNA testing has shown that he is not the father of Ms Kanjou's child, he need have nothing to do with her if released on bail. He also has the support of his family and is willing to submit to strict bail conditions. Unfortunately, these considerations, and the delay, are not in my view sufficient to show cause why his continued remand in custody is unjustified, having regard to the seriousness of the charges, his criminal history and his drug history. Indeed, I am satisfied that he is, in all the circumstances, an unacceptable risk to commit further offences whilst on bail and endanger members of the public.
[1] Re Steve Al-Jinavo [2017] VSC 198.
[2] Re Steve Al-Jinavo [2017] VSC 198 at [4]-[8].
[3] Re Steve Al-Jinavo [2017] VSC 198 at [22].
[4] The applicant did note that the injuries suffered by the complainant were limited to bruising, as depicted in the police photographs of the complainant which the applicant tendered and that the complainant, in her police statement, was unsure as to whether she was struck with an open hand or a fist.
[5] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen 46 VR 308; [2014] VSCA 342.
[6] As it did Lasry J, who considered him a high risk of relapse.
[7] Report of Warren Simmons dated 11 April 2017, p 4.