IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0060

IN THE MATTER of the Bail Act 1977 (Vic)		
		
-and-		
		
IN THE MATTER of an application for bail by WALID YOUSUF		

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JUDGE:	LASRY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 April 2021	
DATE OF JUDGMENT:	9 April 2021	
DATE OF REVISED REASONS:	18 May 2021	
CASE MAY BE CITED AS:	Re Yousuf	
MEDIUM NEUTRAL CITATION:	[2021] VSC 272	

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CRIMINAL LAW — Application for bail — Charges of armed robbery, assault and making threats to kill — Potential delay of two years – Applicant’s youth — Significant proposed family support and oversight from the Department of Corrections — Exceptional circumstances established — Unacceptable risk not demonstrated — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4a, 4D, 4E — Cases cited: R v Dixon [1975] 22 ACTR 13; Re Gaylor [2019] VSC 46; Byrne v DPP [2015] VSC 764; Re Elias [2020] VSC 502; Mae Loc Tran [2008] VSC 191; Robinson v The Queen [2015] VSCA 161.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Ms Caitlin Dwyer	Theo Magazis & Associates	
			
For the Respondent	Mr Alexander Albert	Office of Public Prosecutions	

HIS HONOUR:

1	This is an application for bail by Walid Yousuf (‘the applicant’).  The applicant applies for bail for the matter where the informant is Senior Constable Wayne Attard (‘the Attard matter’).  The charges in the Attard matter, which arise from alleged offending on 17 March 2020, are:
(a)	Armed robbery;
(b)	Commit indictable offence on bail;
(c)	Contravene a conduct condition of bail;
(d)	Make a threat to kill; and
(e)	Assault.
2	The applicant is also the accused in seven other matters before the courts. These matters have all resolved to pleas of guilty.  The applicant remains on bail for three of these matters and is on summons for the remaining four.  The relevant charges in these matters are as follows:
3	The matter where the informant is First Constable Alanna Lander (‘the Lander matter’), where the applicant is on bail:
(a)	Theft of petrol;
(b)	Drive an unregistered motor vehicle;
(c)	Fraudulently use registration plate;
(d)	Fraudulently use registration plate;
(e)	Drive a motor vehicle in breach of permit by driving without an accompanying supervising driver;
(f)	Theft of petrol; and
(g)	Theft of petrol.
4	The matter where the informant is Constable Ashley Rickard (‘the Rickard matter’), where the applicant is on bail:
(a)	Criminal damage;
(b)	Commit indictable offence whilst on bail (criminal damage).
5	The matter where the informant is Senior Constable Kery Morris (‘the Morris matter’), where the applicant is on bail:
(a)	Contravene a conduct condition of bail (driving a motor vehicle);
(b)	Fail to produce licence for inspection upon request;
(c)	Drive a motor vehicle in breach of permit by driving without an accompanying supervising driver;
(d)	Drive a motor vehicle in breach of permit by not having ‘L’ plates displayed;
(e)	Drive an unregistered motor vehicle.
6	The matter where the informant is Constable Matthew Morgan (‘the Morgan matter’), where the applicant is on summons:
(a)	Intentionally cause injury;
(b)	Recklessly cause injury;
(c)	Unlawful assault;
(d)	Drive an unregistered motor vehicle;
(e)	Drive an unregistered motor vehicle;
(f)	Commit indictable offence (intentionally cause injury) whilst on bail.
7	The matter where the informant is Senior Constable Victoria Pittit (‘the Pittit matter’), where the applicant is on summons:
(a)	Drive a motor vehicle in breach of permit by driving without an accompanying supervising driver;
(b)	Drive a motor vehicle in breach of permit by not having ‘L’ plates displayed;
(c)	Fail to produce licence for inspection upon request;
(d)	Contravene a conduct condition of bail (driving a motor vehicle);
8	The matter where the informant is Leading Senior Constable Dean Maguire (‘the Maguire matter’), where the applicant is on summons:
(a)	Drive whilst suspended;
(b)	Speeding by less than 35km/h over the speed limit.
9	The matter where the informant is Senior Constable Colin Raj (‘the Raj matter’), where the applicant is on summons:
(a)	Robbery;
(b)	Intentionally cause injury;
(c)	Robbery;
(d)	Intentionally cause injury;
(e)	Commit indictable offence on bail (robbery);
(f)	Contravene a conduct condition of bail (curfew).
10	Some of the charges in the Lander, Morgan and Raj matters have been withdrawn or otherwise replaced with alternative charges.  A consolidation plea for the Lander, Rickard, Morris, Morgan, Pittit, Maguire and Raj matters is listed on 30 April 2021 at Broadmeadows Magistrates’ Court. 
11	The applicant was also sentenced for one charge of aggravated burglary, one charge of theft, one charge of commit indictable offence on bail and on charge of assault on 27 November 2020 in the County Court at Melbourne for a matter where the informant is Fielding (‘the Fielding matter’).  The applicant was sentenced to 12‑months’ imprisonment in combination with a three year Community Correction Order (CCO), as well as a fine of $400.  203 days were declared as time already served by way of pre-sentence detention.    
12	In support of this application, the applicant’s solicitor Mr Steven Parker has filed affidavits in support of bail.
13	The respondent opposes the application.  Ms Amelia Grace Walker, on behalf of the Director of Public Prosecutions, has filed an affidavit in response to the application.
Procedural history
14	The allegations in the Lander, Rickard, Morris, Morgan, Pittit and Maguire matters occurred between 14 October 2018 and 14 March 2020, prior to the allegations in the Attard matter occurring on 17 March 2020.  
15	The applicant was charged for the Attard matter on 26 March 2020 and remanded in custody on this date.  The applicant applied for bail in the Magistrates’ Court in Melbourne for the Attard matter on 30 March 2020 and was granted bail with conditions. 
16	The allegations in the Raj matter occurred on 25 April 2020.
17	On 8 May 2020, the applicant committed the offending which is the subject of the Fielding matter and was remanded in custody on the same day.  The applicant’s grant of bail for the Attard matter was revoked on 19 November 2020.  
18	As I have already mentioned, the applicant pleaded guilty to the Fielding matter on 27 November 2020.  The applicant was sentenced, inter alia, to 12 months imprisonment with 203 days declared as pre-sentence detention.  Due to the operation of emergency management days, the applicant’s sentence for Fielding matter expired on 13 February 2021.  Since this time, the applicant has remained in custody solely due to the charges in the Attard matter.  The Attard matter is next listed for Contested Committal on 31 May 2021.
The Attard allegations
19	The complainant in the Attard matter and the applicant met through a mutual friend about a week before the alleged offending occurred.  Shortly after they met, the applicant asked the complainant on a number of occasions for small amounts of money, which the complainant refused to give to the applicant.  This is alleged to have created a degree of tension between the two of them.
20	On 17 March 2020, the applicant arranged to meet the complainant and their mutual friend at Saltwater Reserve in Point Cook.  The mutual friend, driving the complainant’s vehicle, drove the complainant to Saltwater Reserve.  Upon their arrival, the applicant and an unknown associate arrived in a separate vehicle and parked it on the passenger side of the complainant’s vehicle.
21	The applicant exited his vehicle in the company of the unknown associate and approached the complainant, who was sitting in the front passenger seat.  The applicant punched the complainant twice in the face as the complainant tried to get out of his car.  The applicant continued to punch the complainant and shut the car door on the complainant’s leg.
22	The applicant then demanded that the complainant transfer him $500, which the complaint refused to do.  The applicant is alleged to have gone to the vehicle he arrived in and returned with what is described as a “silver-handled knife with the blade still retracted.”
23	Whilst holding the knife towards the complainant, the applicant is alleged to have said “I don’t care about you, I don’t care about [redacted], I don’t care about my friend, I don’t care about me, I will kill you.”  Whilst holding the knife, in respect of which the blade was never revealed, the applicant again demanded that the complainant access his internet banking, which the complainant did.  The applicant then took the complainant’s phone and transferred $1000 from the complainant’s bank account into his own bank account before leaving the scene with the unknown associate.
24	On 26 March 2020, the applicant attended the Altona North Police Station where he was arrested and interviewed.  The applicant provided a ‘no comment’ interview.  On 6 April 2020, bank records obtained from the ANZ Bank and National Australia Bank showed a $1000 transaction from the complainant’s account to the applicant’s account on 17 March 2020.  On 7 April 2020, the complainant attended the Altona North Police Station and selected a photograph of the applicant from a photo board.
The applicable law
25	I am required to take into account the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘the Act’) when applying and interpreting the Act, namely:
(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; and
(c)	promoting fairness, transparency and consistency in bail decision making; and
(d)	promoting public understanding of bail practices and procedures.
26	As the applicant is charged with Schedule 2 offending, being armed robbery and committing an indictable offence while on bail, while on bail for Schedule 2 offending, I must refuse bail unless he can establish exceptional circumstances that justify a grant of bail.  In determining whether exceptional circumstances exist, I must take into account the relevant surrounding circumstances, including, but not limited to, those prescribed in s 3AAA(1) of the Act.    
27	In the event that the applicant establishes that exceptional circumstances exist that justify a grant of bail, I am then required to consider whether or not the respondent has demonstrated that the release of the applicant on bail would result in an unacceptable risk of him engaging in any of the conduct outlined in s 4E(1)(a) of the Act.  If the respondent demonstrates that the applicant poses an unacceptable risk, I must refuse bail.  When considering whether any relevant risk is unacceptable, I must again have regard to the surrounding circumstances set out in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate risk so that it is no longer unacceptable.  
The applicant’s circumstances
28	The applicant is 21 years old.  He was born in Saudi Arabia and has lived in Australia since the age of five.  The applicant left school in year 10 and worked as a labourer and tiler.  He commenced an apprenticeship as a roof plumber and undertook a civil construction course, which he has not yet completed.
29	The applicant has a history of substance use, predominantly methylamphetamine, Xanax and alcohol.  The applicant was using significant quantities of these substances daily prior to his remand.
30	In October 2020, the applicant was assessed by psychologist Ian Mackinnon.  In a report dated 8 November 2020 (‘the Mackinnon report’), Mr Mackinnon diagnosed the applicant with mild post-traumatic stress disorder (PTSD) and polysubstance abuse disorder.  Mr Mackinnon also observed in the report that the applicant suffers from anger management issues and symptoms associated with attention-deficit hyperactivity disorder (ADHD), although he did not formally diagnose the applicant with ADHD.  The Mackinnon report was exhibited to the affidavit in support of the application for bail, although it was primarily produced for the purpose of sentencing for the Fielding matter.
31	The applicant’s prior criminal history consists of two matters heard in the Children’s Court.  The applicant was sentenced on both occasions to a good behaviour bond without conviction.  The applicant will be pleading guilty to matters that pre-date the informant Attard matter at the consolidated plea hearing on 30 April 2021.  Relevantly for this application, the charges to which the applicant will plead guilty on 30 April 2020 include three charges of committing an indictable offence whilst on bail and three charges of contravening a conduct condition of bail. 
The applicant’s submissions
32	Counsel for the applicant, Ms Dwyer, relies on a combination of factors to demonstrate the existence of exceptional circumstances justifying the grant of bail and also in support of the submission that the applicant does not pose an unacceptable risk if released on bail.  
Strength of the prosecution case
33	Counsel for the applicant noted that complainant observed what is said to be a ‘closed’ knife where no blade is sighted during the incident.  Counsel said that a triable issue exists in relation to whether or not the evidence establishes that the applicant was in possession of a knife, and as such whether an armed robbery charge is made out as opposed to a robbery charge.  Issue is also taken in relation to the threat to kill allegation.
Opportunities for rehabilitation and support
34	Counsel called the applicant’s uncle, Mr Khaled Yousuf Taher, to give evidence at this application.  The salient points of Mr Taher’s evidence were as follows:
(a)	Mr Taher is aware of the applicant’s offending in the Fielding matter, and the applicant’s alleged offending in the Attard matter and other matters before the courts.  Mr Taher is also aware of the Children’s Court matters in the applicant’s prior criminal history.
(b)	The applicant’s family have a plan to support the applicant, with Mr Taher being at the forefront of that plan.
(c)	Arrangements have been made for the applicant to live with his mother at a new address should he be granted bail, so that the applicant would be removed from the area he was living in when the offending occurred.  The family were making arrangements for the applicant to live around Hawthorn, to make it easier for him to pursue educational opportunities at Swinburne University of Technology (‘Swinburne’).  
(d)	Mr Taher has contacted several clinics to investigate treatment options for the applicant’s mental health and substance use issues raised in the Mackinnon report.  
(e)	Mr Taher is willing to offer a surety for the applicant in the amount of $5,000.
35	There was also evidence in the written material filed with the Court that the applicant’s family have contacted the Hader Clinic regarding the various programs and treatment that organisation offers.  The applicant’s family are prepared to pay for the applicant to undergo inpatient treatment at the Hader Clinic if that is necessary.
36	Counsel acknowledged that although the rehabilitative measures being put in place for the applicant were prospective rather than already organised, based on the evidence of Mr Taher, the Court can be satisfied that the applicant’s family have mobilised and will take an active role in his rehabilitation.  Counsel noted that this rehabilitation will occur in tandem with oversight from Corrections Victoria as the applicant serves the CCO component of his sentence for the Fielding matter.  Counsel drew attention to aspects of the Mackinnon report in support of the submission that the applicant has acknowledged his substance use and mental health issues and is now prepared to seek treatment for the same upon his release from custody. 
Applicant’s age and time in custody before trial
37	Counsel submitted that the rehabilitative services available to the applicant should he be granted bail ought to be considered in opposition to the alternative circumstance of him remaining in custody until his trial.
38	The Mackinnon report canvasses the deleterious effect that continued detention would have on the applicant.  As a young offender who has not previously been in custody, prolonged exposure to a custodial environment will foster relationships with negative influences and entrench anti-social behaviours.  Counsel quoted the cases of R v Dixon, Re Gaylor and Byrne v DPP in support of the submission that an extended period of time in a prison environment can detrimentally impact a young person’s prospects of rehabilitation.  Counsel also noted the restricted programs and limited availability of personal visits for people remanded in custody throughout the COVID-19 pandemic as being relevant for the applicant’s rehabilitative prospects should he not be granted bail.  I observed at the application that it seems to me extraordinary that people in custody are deprived of personal visits and the benefits that flow from those in circumstances where the government has indicated there is no virus circulating in the community.  I observed that some reconsideration should be given to re-establishing personal visits for prisoners.  
39	Counsel submitted that the 11 months the applicant had already spent in custody had been a salutary experience for him.  Counsel noted passages of the Mackinnon report and inferences that can be drawn from Mr Taher’s evidence in support of the submission that the applicant has developed insight into his issues and his need for rehabilitation.  Further, the applicant knows that demonstrating rehabilitation may reduce his eventual sentence for his matters before the courts that have not yet finalised, providing a powerful inventive for him to engage with the support services that his family have arranged for him.  Counsel emphasised that as this was the applicant’s first time in custody, this had been his first opportunity to experience a prison environment and reflect on how he wants to live his life.  The applicant has also been abstinent from drugs of dependence while in custody.  Counsel submitted that there was sufficient evidence before the Court for me to be satisfied that the applicant has evinced a genuine desire to rehabilitate.
Delay
40	Counsel observed that the applicant had 60 days of pre-sentence detention available on the Attard matter at the time of this application.  Counsel submitted that, given there are triable issues in this case, I ought to evaluate the issue of delay on the basis that this matter will proceed to trial.
41	Counsel referenced the County Court practice note in support of the submission that that the trial for this matter will proceed either in July-September 2022 or early 2023.  This would mean the applicant will have been in custody solely for the Attard matter for two years and will have been in continuing custody for two years and eight months from the age of 20.  Counsel further submitted that there is a real prospect of the applicant receiving a lesser sentence of imprisonment should he be found guilty than the likely period of delay before trial.  
Proposed bail conditions
42	It is noted in the written material that appropriate conditions of bail could be imposed to address the issue of unacceptable risk.
The respondent’s submissions
43	Counsel for the respondent, Mr Albert, contested the application on the basis that the applicant had not demonstrated exceptional circumstances justifying the grant of bail and that the applicant otherwise posed an unacceptable risk of committing an offence while on bail. 
Prior offending and non-compliance with previous grants of bail
44	Counsel submitted that the applicant’s past criminal history and current matters before the courts demonstrate that he has no regard for motor traffic law and bail obligations.  Counsel noted that although the applicant’s family have offered their support now, they were apparently unaware of his past recalcitrant behaviour until relatively recently.  The applicant would appear to have a history of concealing anti-social behaviour from his family.
45	Counsel also raised concerns that if the applicant relocated to Hawthorn to attend Swinburne, there will be lesser degree of family supervision ensuring bail compliance.
46	Counsel relied upon the applicant’s past history in support of the submission that, notwithstanding the applicant’s family’s good intentions, he posed an unacceptable risk of further offending should he be granted bail. 
Delay
47	Counsel submitted that the length of any potential delay was uncertain given the COVID-19 pandemic.  As trial listings were frequently changing, a degree of certainty around the question of delay would only be forthcoming following the applicant’s committal hearing on 31 May 2021.  As such, it cannot be conclusively said that the applicant’s trial will proceed in July-September 2022 or early 2023.
48	Counsel also noted the presumption under s 16(3C) of the Sentencing Act 1991 (Vic) that offences occurring whilst on bail prima facie will be served cumulatively as being a relevant consideration in terms of potential sentence at the consolidation plea on 30 April 2021.
Analysis
49	I do not place significant weight on submissions pertaining to the strength of the prosecution case for the armed robbery charge for the purpose of deciding this application.    
50	It was put on behalf of the applicant that, based on current estimates, a delay will occur of some two years before this matter reaches trial.  This submission was not resisted on behalf of the respondent.  I am required to assume at this stage that this matter will remain contested and as such that the applicant faces a likely delay in the order of two years.  Taking into account time served for the Fielding matter, his would mean the applicant will have been in custody for two years and eight months before this matter reaches trial.  
51	It seems to me that over the period of the COVID-19 pandemic, the Courts are becoming unfortunately inured to this kind of delay.  A two year delay for a 21-year-old in custody for the first time is simply intolerable.  It remains intolerable despite fact that it happens frequently and to a large number of people.  The likely delay in this matter and the applicant’s young age are capable on their own of amounting to exceptional circumstances.
52	Ms Dwyer on behalf of the applicant advanced a further argument that the applicant’s pre-trial period remanded in custody may exceed the sentence that would eventually be imposed should he be found guilty of all the charges in the Attard matter, including the armed robbery charge.  This may or may not prove to be so.  If this were to occur, it makes the issue of delay all the worse.  Even if this were not to occur, the period of delay in this case remains very significant.  It is not a qualifying pre-requisite that a period of pre-trial delay can only be an exceptional circumstance if it exceeds the sentence that would be imposed upon a finding of guilt.
53	In relation to the question of unacceptable risk, the risk the applicant poses would be reduced by the significant family support he is being offered, the prospective rehabilitative services that will be made available to him, oversight from the Department of Corrections, his period of abstinence from drugs of dependence while in custody and appropriate conditions of bail.  I do not place much weight on the prospect of a $5000 surety, however it is also a factor to be considered.  
54	I take into account the respondent’s concerns about the suitability of the applicant’s proposed accommodation, as well as the concerns stemming from the applicant’s poor compliance with previous grants of bail.  The applicant is dealing with significant issues of anger management, polysubstance use and mild PTSD.  I am not absolutely certain that releasing the applicant on bail will not result in him committing further offences.  However, these concerns must be balanced against the applicant’s youth and the prospective time he will spend in custody, coupled with the level of support that will be available to him should he be granted bail.
55	In my opinion, the two factors which bring this application to the level of exceptional circumstances are the issue of delay and the applicant’s youth.  The other matters which were raised in submissions are of course relevant, however those are the two matters that I primarily rely on.  In light of the evidence before the me and parties’ submissions, I further find that the respondent has not demonstrated that the applicant poses an unacceptable risk.
Conclusion and orders
56	Having considered the evidence in this matter and the parties’ submissions, at the conclusion of the hearing I indicated that I was satisfied that exceptional circumstances justifying a grant of bail had been established and that any risk could be mitigated to an acceptable level with appropriate conditions of bail.
57	Accordingly, I granted bail and made the following orders:
 (1)	The said Walid Yousuf (‘the applicant’) be admitted to bail upon his own undertaking with a surety in the amount of $5,000 by Khaled Taher and with the following conditions:
(a) 	Until further order, the applicant reside at [redacted], Point Cook in the State of Victoria (‘place of residence’);
(b) 	The applicant notify the informant Acting Sergeant Wayne Attard or his nominee at least 7 days in advance of any proposal to change to his place of residence;
(c) 	The applicant not leave his place of residence between the hours of 8:00 p.m. and 6:00 a.m. (‘curfew hours’) unless in the company of a parent or his uncle Mr Taher;
(d) 	The applicant present at the at the front door of his residence during curfew hours upon the reasonable request of the informant or his nominee, being an authorised member of Victoria Police;
(e) 	The applicant comply with all conditions of the community corrections order imposed by her Honour Judge Quin in the County Court on 27 November 2020;
(f) 	The applicant not contact, whether directly or indirectly, any witnesses for the prosecution, other than the informant;
(g) 	The applicant not, either in person or electronically and whether directly or indirectly, contact [redacted];
(h) 	The applicant not use or possess any narcotic substance as defined by the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
(i) 	The applicant provide the informant or his nominee with the results of any drug screens undertaken while on bail within 24 hours of the drug screen occurring subject to the approval of the Department of Corrections;
(j) 	The applicant not leave the State of Victoria;
(k) 	The applicant not leave Australia;
(l) 	The applicant not attend any points of international departure;
(m) 	The applicant surrender any current passport or travel document in his possession or control to the informant or his nominee within 24 hours of being released on bail;
(n) 	The applicant is not to apply for any such passport or travel document or cause, whether directly or indirectly, any other person to do so on his behalf; and
(o) 	The applicant appear:
(i) 	at the Magistrates’ Court at Broadmeadows on Monday 30 April 2021 at 9:30 a.m.;
(ii) 	at this Court, for the purpose of judicial monitoring, on Friday 7 May at 9:30 a.m.; and
(iii) 	at the Magistrates’ Court at Melbourne on Monday 31 May 2021 at 9:30 a.m.
and thereafter as directed by each court.