MAN CHARGED WITH ARMED ROBBERY, ASSAULT, AND MAKING THREATS TO KILL APPLIES FOR BAIL UNDER THE EXCEPTIONAL CIRCUMSTANCE OF DELAY
Re Yousuf [2021] VSC 272 (18 May 2021)
This is an application for bail against the applicant charges with armed robbery, assault, and making threats to kill under the exceptional circumstance of delay of the proceedings due to the pandemic.
Facts:
This is an application for bail by Walid Yousuf (‘the applicant’). The applicant is 21 years old. He is charged with armed robbery, assault and making threats to kill
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.
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.
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.”
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.
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.
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.
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 offense while on bail.
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.
Issue: Should the court grant the application for bail?
Analysis:
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. The court is 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, this would mean the applicant will have been in custody for two years and eight months before this matter reaches trial.
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.
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.
Conclusion: Bail is hereby granted.
