IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2020 0084

IN THE MATTER of the Bail Act 1977		
		
and 		
		
IN THE MATTER of an Application for Bail by CHOL KUR		

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JUDGE:	TINNEY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 April 2021	
DATE OF JUDGMENT:	26 April 2021	
DATE OF REASONS	20 May 2021	
CASE MAY BE CITED AS:	Re Kur	
MEDIUM NEUTRAL CITATION:	[2021] VSC 285	

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CRIMINAL LAW – Bail – 21 year old applicant - Charge of robbery arising from planned robbery with gang connection – Applicant subject to youth parole for robbery at time of offending – Subsequently left Victoria before being spoken to by Victoria Police – Arrested in NSW – Delay – Applicant in custody since 6 October 2019, but plea hearing to be held within eight weeks of application - Onerous conditions in custody – Serious criminal history including many prior convictions for robbery – Poor history of compliance with bail - Family support and stable accommodation – Compelling reason not established – Unacceptable risk in any event – Bail refused – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E. 

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr T Brown	Balmer & Associates	
			
For the Respondent	Mr R Gibson QC with
Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
Introduction
1	The applicant applied for bail on a charge he faces of robbery, arising from an incident which took place in Kings Park on 28 September 2019. 
2	It was common ground between the parties that the Court was required to refuse bail unless satisfied that a compelling reason existed that would justify the grant of bail. This was because the applicant was accused of committing an indictable offence while released under a youth parole order. 
3	Having heard the application, I indicated that I was not satisfied of the existence of a compelling reason in justification for the grant of bail, and further indicated that even had I been so satisfied, I would have been satisfied that there was an unacceptable risk of one or more of the eventualities contemplated by s 4E(1)(a) of the Bail Act 1977 (‘the Act’). I therefore refused the application for bail. 
4	I indicated that I would publish detailed reasons for my decision at a later time. These are those reasons. 
Procedural history and circumstances of plea of guilty
5	The applicant was originally charged with murder and other offences arising out of the stabbing of Maaka Hakiwai (‘Maaka’) and his brother, Nathaniel Hakiwai (‘Nathaniel’), on 28 September 2019. The applicant was 19 years old at the time of the events and 21 years old by the time of this application. He had offended in company with AM and Joshua Horton (‘Horton’). 
6	The applicant was subject to a youth parole order at the time of his offence, having received a sentence of 18 months’ detention in a youth justice centre on 2 April 2019 and having been granted parole on 9 September 2019. Before being spoken to by Victoria Police following the present offending, the applicant left Victoria and travelled to New South Wales on or about 30 September 2019. This was in breach of the applicant’s conditions of parole which prohibited travel interstate. Parole was cancelled by the Youth Parole Board on 16 October 2019.The applicant was arrested and remanded in custody in NSW on unrelated matters on or about 6 October 2019. He remained in custody on those matters until early April 2020 by which time a decision had apparently been made not to proceed with the charges. The applicant was then taken into custody by Victoria Police and extradited from NSW on 2 April 2020.
7	After his arrest, a warrant was executed upon the applicant in respect of his breach of parole. He subsequently served the unexpired portion of parole, namely 179 days. The parole expired on 29 September 2020.
8	On 27 April 2020 at the committal mention, the applicant elected to ‘fast track’ his matter into this Court. His case and those of AM and Horton proceeded by straight hand-up brief. 
9	The applicant made an offer to plead guilty to robbery prior to a hearing in this Court on 19 June 2020. The offer was rejected by the prosecution. 
10	An application for a judge alone trial for the applicant and AM was granted by Hollingworth J on 2 October 2020
11	Horton stood trial before a jury for the murder of Maaka and for intentionally causing serious injury (‘ICSI) to Nathaniel. He was found guilty by the jury of manslaughter and ICSI on 30 March 2021.
12	The trial of the applicant and AM was allocated to Lasry J as the trial judge and listed to commence on 28 April 2021. At a mention before his Honour on 13 April 2021, the prosecution conceded that the charge of 3A murder faced by the applicant and AM was not viable.
13	On 19 April 2021, the prosecution accepted the offer by the applicant and AM to plead guilty to robbery. The applicant pleaded guilty to the charge of robbery before Lasry J on 22 April 2021. The plea hearings for the applicant and AM were listed on 21 July 2021, the same day as the plea hearing for Horton. 
14	The applicant sought an urgent date for this bail application. 
Alleged offending
15	On 28 September 2019 at approximately 2:15pm, AM was picked up in a black Toyota RAV4 from a friend’s house in the Kings Park area. Already in the vehicle were the applicant and Horton, and three girls aged between 15 and 17 years, one of whom was driving the vehicle. 
16	At 2:30pm, brothers Maaka, aged 17, and Nathaniel, aged 18, arrived at a bus stop at the intersection of Main Road West and Oakwood Road, Kings Park, on their way to the local gymnasium. Nathaniel was wearing a ‘Philadelphia 76ers’ peaked cap. 
17	While they were waiting for the bus, footage from a local CCTV camera captured the RAV4 completing two full circles of a nearby roundabout before driving towards the bus stop. It was the prosecution case as I understood it at the time of the application that there was a discussion between the applicant and AM in the car about the prospect of robbing the Hakiwai brothers, which culminated in the brothers being selected by AM as targets for the alleged robbery. According to one of the girls in the vehicle, AM requested the driver to stop the car so he could ‘drill’ the brothers – meaning to rob them. It is said that two of the girls in the vehicle tried to discourage him from doing so, while the applicant encouraged him. Horton was silent. 
18	The RAV4 pulled over just past the bus stop, at which point AM and the applicant allegedly exited from the rear of the vehicle and spoke to the brothers. During this exchange, the applicant asked for Nathaniel’s cap. When he refused, the applicant tried to grab the cap but Nathaniel held onto it, causing the applicant to punch him in the face. At the same time, AM allegedly struck Maaka and a fight ensued.
19	During the fight, the applicant was knocked to the ground, at which time it is alleged that Horton got out of the rear of the RAV4 armed with a knife. Horton approached Maaka, who was struggling with the applicant, and stabbed him to the abdomen, piercing his heart. Soon after, Maaka collapsed to the ground and lost consciousness.
20	Horton then approached Nathaniel and stabbed him in the left thigh. The applicant and Kur then ran towards the RAV4, with the applicant taking the peaked cap from Hakiwai as he went by. Having stabbed Nathaniel a second time, again to his left thigh, Horton also returned to the RAV4, which was driven away. A passing motorist who witnessed the fight followed the RAV4 for a short distance and noted the vehicle’s registration number. 
21	Maaka was transported to Royal Melbourne Hospital but never regained consciousness and died later that day. 
22	Nathaniel was transported to The Alfred Hospital for emergency treatment for his injuries. 
23	The applicant was located in Lake Illawarra, NSW, on 6 October 2019 and detained on unrelated matters. As indicated earlier, he was extradited to Victoria. He declined to comment in his police interview. 
Personal background
24	The applicant turned 21 on 2 April 2021. He was born in South Sudan and came to Australia with his family in 2005 when he was 4 years old. He is the oldest in a sibship of nine. The applicant’s father returned to South Sudan in early 2021 leaving the applicant’s mother caring for the children. The family is a supportive one and there is said to be stable accommodation available to the applicant at 81 George Street, Taylors Hill. The applicant was educated to the year 10 level at St Albans Secondary College. He has continued his education in custody and is currently completing VCAL studies. Whilst the applicant has no history of employment, he has expressed an interest in work as a mechanic. Should he be released on bail, he will explore educational and employment opportunities. He has no drug or alcohol issues, and no mental health issues. 
Criminal history
25	The applicant’s criminal record is a serious one, commencing in April 2018 when he was 18 years old and spanning some five appearances in the Children’s Court and various Magistrates’ Courts. The applicant has accrued no fewer than 7 findings of guilt for robbery, and also convictions or findings of guilt for affray on two occasions, and other crimes of violence. The history shows a very poor record of compliance with grants of bail, including ten convictions for committing an indictable offence whilst on bail and three for contravening conduct conditions of bail.
The law
26	Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty. 
27	Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
28	Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason. In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances, including, but not limited to, those prescribed in s 3AAA(1) of the Act. 
29	If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. 
30	In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
31	In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)	For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)	It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)	A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.
The applicant’s submissions
32	Mr Brown, for the applicant, relied upon a combination of matters as set out in the affidavit in support and expanded upon in his oral submissions in proof of a compelling reason. The matters were as follows:
a)	The young age of the applicant and the delay in finalisation of the charge. It was submitted that the applicant was only 19 at the time of the offending, and is still only 21. The fact of his having turned 21 means that a youth justice centre disposition is no longer open to him. He has spent a very significant period of time as a young person in Port Phillip Prison, an adult prison.
b)	The time spent on remand may exceed the ultimate sentence. It was submitted that whilst not all of the time spent in custody thus far is referable to the current offending, the time spend in custody in NSW is dead time which will need to be considered when the applicant comes to be sentenced here. Although the charge is serious, it is a single charge of robbery only. The detention of the applicant for the further eight weeks or so before the plea hearing will be held may, in circumstances where the overall period in custody may exceed the eventual sentence, amount to preventative detention.
c)	The onerous nature of custody due to COVID-19. Mr Brown developed this theme, emphasising that for a young man to have spent the amount of time in custody that has been the applicant’s lot, in these onerous conditions, is a significant matter. 
d)	Bail history. The affidavit in support asserted that whilst the applicant has prior convictions for committing offences whilst on bail, he has no prior convictions for failing to answer bail or for breaching conduct conditions of bail. Mr Brown conceded in oral submissions that the latter assertion is incorrect. The applicant has a number of convictions for contravening conduct conditions. 
e)	The fact that the applicant has continued with his studies whilst in custody. That is to his credit, and will increase his prospect of employment upon his eventual release. 
f)	The availability of stable accommodation and a supportive family. 
g)	The availability of conditions of bail to address the risks posed by the applicant. In respect of the fact of the applicant having left Victoria in the immediate aftermath of his crime, and in contravention of the terms of his parole, Mr Brown submitted that the Court should not conclude that at the time of his departure, the applicant necessarily knew the gravity of the incident being investigated by Victoria Police, and that he was a person of interest in the murder.
33	On the question of risk, Mr Brown submitted that the risk posed by the applicant can be ameliorated to an acceptable level by the imposition of strict conditions. 
The respondent’s submissions
34	Mr Gibson QC, who appeared with Ms Lenthall for the respondent, relied on the answering affidavit and his oral submissions in asserting that a compelling reason had not been made out, and that in any event, the applicant would pose an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, or failing to surrender into custody in accordance with the conditions of bail. 
35	Mr Gibson pointed out that this was a bail application in which the presumption of innocence had no application in light of the applicant’s plea of guilty. Furthermore, the offence of which he has admitted guilt was a serious one, being a targeted robbery against effectively two young victims in daylight in a public street, committed by two offenders with a gang connection. The applicant’s moral culpability is high in light of his hands-on role in the carrying out of the crime. 
36	The crime of the applicant occurred in the context of his serious criminal history, which contains numerous convictions for robbery and other crimes of violence, and numerous convictions for committing indictable offences whilst on bail and breaching conduct conditions of bail. The applicant has shown ‘an established pattern of committing the same offence that he’s before this court on; namely robbery’. Furthermore, the applicant was actually on parole for robbery at the time of his crime, and the circumstances of his having left the jurisdiction shortly after his crime and in breach of his conditions of parole would entitle the Court to conclude that he clearly left Victoria to avoid being questioned in relation to his involvement in the incident in question. 
37	Mr Gibson submitted that the offence to which the applicant has already pleaded guilty, in view of its seriousness and the significant criminal history of the applicant, would warrant a significant gaol sentence. It was implicit in the submissions made, whilst not expressly stated, that there would be a real prospect that the sentence likely to be imposed upon the applicant may exceed the period he has spent on remand. 
38	On the matter of delay, it was submitted that with the plea listed for hearing on 21 June 2021, there is no inordinate delay in prospect. 
39	Mr Gibson submitted that the applicant had entirely failed to establish the existence of a compelling reason which would justify the grant of bail.
40	As for the matter of the risk posed by the applicant, Mr Gibson submitted that his antecedents made it clear that the risk he posed was unacceptable. 
Analysis
41	The crime to which the applicant has pleaded guilty is a serious one for the reasons advanced by the prosecution. Vulnerable soft targets, one of them a child, were selected by the applicant and AM in consultation. The intended robbery was then pursued by the applicant and his confederate, and in spite of the resistance shown by the brave Hakiwai brothers, and notwithstanding the shocking outcome in which both of the brothers were stabbed by Horton, for which the applicant is not answerable, the applicant remained resolute in his pursuit of the team goal. It is notable, and quite a distasteful feature of the eventual robbery, that it was carried out in the aftermath of the fatal stabbing of Maaka, and almost certainly, the stabbing of the primary victim himself.
42	The seriousness of the offending is aggravated by the important fact that the applicant was on parole at the time in respect of earlier offences including six charges of robbery, two charges of affray, a charge of intentionally causing injury, and seven charges of committing an indictable offence whilst on bail. Where bail is concerned, the status of the applicant as a parolee is specifically required to be factored into the surrounding circumstances.
43	Looked at more broadly, the criminal history of the applicant is an important consideration pointing against a grant of bail in this case. The submission by Mr Gibson that the applicant has shown an established pattern of committing crimes of robbery sits comfortably enough with his criminal record, his status as a parolee in respect of crimes of robbery, and the offence with which this application is concerned.
44	The bail history of the applicant is poor, and made no less so by the absence of convictions for failing to answer bail. He has, over the relatively short time of his criminal history, shown a lack of respect for the strictures of bail. Furthermore, his act in leaving Victoria in the immediate aftermath of his crime, and the broader events surrounding that crime, is, to my mind, a telling matter highlighting the risk he would pose, if released on bail, of not answering bail. When he departed for NSW within days of his crime, the applicant knew that he was not permitted to leave Victoria. He also must have known the seriousness of the incident about which the police would like to speak to him. He was present when a friend of his fatally stabbed one person and seriously stabbed another. There was substantial media publicity given to the events. In the knowledge of the inevitable fact that Victoria Police would like to speak to him in investigating this very serious incident, the applicant saw fit to run away from his responsibilities. 
45	In respect of the personal circumstances of the applicant, the ongoing support of his family and the availability of the family home in which to live would provide little comfort to the court as to the applicant’s likely future conduct. It should be remembered that the various convictions and findings of guilt accrued by the applicant since 2018 have all occurred when he was living at home with his mother, and being supported in the same way. There is no reason to suppose those arrangements would keep him in line and out of trouble. Furthermore, I note that the respondent challenges the applicant’s contention as to family support in any event. In the affidavit in opposition to bail, there was an indication that at the time a search warrant was executed at the family home, the applicant’s family were not even aware that the applicant was on remand in NSW. 
46	Turning to the views of the victim of the crime and his family, the Court was informed that Nathaniel and his family oppose the granting of bail to the applicant.
47	Turning finally to the matters set out in s 3AAA(1)(k) and (n), the delay between the time of the application and the finalisation of the charge will only be a modest one. As for the likely sentence, Mr Brown did not go so far as to submit that the time on remand should bail be refused will necessarily exceed the sentence likely to be passed. In my view, that was a realistic way of approaching the matter. The length of the sentence to be passed on the applicant is a matter for future consideration. The fact remains, it has not been challenged that the offence to which he has already pleaded guilty is a serious one which would necessarily attract a term of imprisonment. 
48	I considered all of the circumstances relied upon by the applicant. In the end, I was far from satisfied that the appellant had discharged the onus resting on him of establishing that a compelling reason existed that would justify the grant of bail.
49	For that reason, bail would have been refused. 
50	For completeness, I noted that even had the applicant succeeded in surpassing the first step in the two-step process of bail, the overall circumstances, including the criminal history of the applicant, the fact he was on parole at the time, and the nature of the crime to which he pleaded guilty, would have led me to the conclusion that he would pose an unacceptable risk of endangering the safety of the public, committing an offence while on bail, or failing to answer his bail. 
51	For that reason, also, bail would have been refused.
Conclusion
52	For the reasons stated, this application for bail was refused.