Application for bail by Jamie Robinson
[2015] VSC 5
•19 January 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CR 2014 206
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by JAMIE LEE ROBINSON
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 January 2015 |
DATE OF RULING: | 19 January 2015 |
CASE MAY BE CITED AS: | Application for bail by Jamie Robinson |
MEDIUM NEUTRAL CITATION: | [2015] VSC 5 |
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CRIMINAL LAW – Bail – show cause application – drug offences alleged – unacceptable risk that accused would offend and interfere with witnesses if released – Bail Act 1977 (Vic), ss 4(2)(d) and 4(4)(ca) – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Z Garde-Wilson | Garde-Wilson Lawyers |
| For the Respondent | Mr T Gyorffy QC | Office of Public Prosecutions |
HIS HONOUR:
Introduction
The applicant is one of 28 persons charged with a multiplicity of drug offences relating to the trafficking of methylamphetamine, commonly known as ‘ice’ in the Wangaratta area. He is the subject of charges of trafficking in drugs of dependence as well as aggravated burglary, intentionally and recklessly causing injury and dealing in property suspected of being the proceeds of crime.
On 4 December 2014, the applicant was refused bail by the Magistrates’ Court at Wangaratta. He now seeks a grant of bail from this Court.
The applicant is required to show cause why his detention in custody is not justified.[1]
[1]Bail Act 1977 (Vic) (Bail Act), s 4(4)(ca).
I have determined that the applicant has failed to show cause and that he should not be admitted to bail. My reasons follow.
The charges
On 11 September 2014 the applicant was charged and remanded in custody on the following charges:
1)The Accused at Wangaratta between 11 July 2014 and 11 September 2014 did traffick a drug of dependence namely methylamphetamine.
2)The Accused at Wangaratta between 11 July 2014 and 11 September 2014 did conspire to traffick a drug of dependence namely methylamphetamine with Jessica Fogarty.
3)The Accused at Wangaratta between 11 July 2014 and 11 September 2014 did conspire to traffick a drug of dependence namely methylamphetamine with Jessica Short.
4)The Accused at Wangaratta between 11 July 2014 and 11 September 2014 did conspire to traffick a drug of dependence namely methylamphetamine with Cheyne Orcher.
5)The Accused at Wangaratta on 8 March 2014 did enter as a trespasser a building or part of a building situated at 22 Flanagan Street with intent to assault a person (Thomas Evans).
6)The Accused at Wangaratta on 8 March 2014 did without lawful excuse intentionally cause injury to Thomas Evans.
7)The Accused at Wangaratta on 8 March 2014 did without lawful excuse recklessly cause injury to Thomas Evans.
8)The Accused at Wangaratta on 11 September 2014 did traffick a drug of dependence namely methylamphetamine.
9)The Accused at Wangaratta on 11 September 2014 possessed a drug of dependence namely methylamphetamine.
10)The Accused at Wangaratta on 11 September 2014 did deal with property namely monies suspended of being proceeds of crime.
11)The Accused at Wangaratta on 11 September 2014 did possess a prohibited weapon without an exemption namely a credit card knife.
The parties’ contentions
The applicant relies upon four matters in support of his submission that his detention is not justified.
The first and primary factor is that there will be a substantial delay, in the vicinity of two years, between the time of his arrest and that of his trial.
Second, if granted bail, the applicant will reside at a rehabilitation facility known as Recoveroz in Box Hill, where he will undergo supervised in-house drug treatment (the program). At the hearing, Mr Francis Coughlan of Recoveroz gave evidence of the manner in which the organisation operates, which I shall return to in a moment.
Third, the applicant has strong family support and ties in Victoria and fourth, his parents are willing to provide a surety of $50,000.
The respondent opposes the grant of bail on the following bases:
(a)that the applicant is likely to intimidate and interfere with witnesses and victims;
(b)that he is likely to continue re-offending within a network of criminal associates located within the Wangaratta area; and
(c)that he is likely to associate with co-accused located within the Wangaratta area for the purpose of collecting drug debts.
To this it may be added that the applicant has an extensive, if relatively minor criminal history (including several failures to obey orders of a court) and, notwithstanding his incarceration, there is evidence that the applicant has expressed a desire to participate in unlawful activities in the event that he is granted bail.
Principles
Under s 4(4)(ca) of the Bail Act, the applicant must show cause why his detention in custody is not justified.
The legislature, in enacting Part 2 of the Bail Act, imposed restrictions on the granting of bail dependent on the nature of the alleged offence or offences. The approach to resolving questions of bail to which s 4(4) applies was addressed by Maxwell P in Re Asmar:[2]
In my view, the question – the only question – for the Court on an application to which s 4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
[2][2005] VSC 487.
Section 4(2)(d) states that the Court shall refuse bail if the Court is satisfied–
(i)that there is an unacceptable risk that the accused if released on bail would—
fail to surrender himself into custody in answer to his bail;
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;
Finally, I should mention s 4(3) of the Bail Act, which sets out a non-exhaustive list of factors that the Court shall take into account in determining whether to grant bail –
(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(c)the history of any previous grants of bail to the accused;
(d)the strength of the evidence against the accused;
(e)the attitude, if expressed, to the Court of the alleged victim of the offence to the grant of bail;
(f)any conditions that may be imposed to arrest the circumstances which may constitute an unacceptable risk.
Considerations
The background of the applicant
The applicant is 28 years of age and prior to his arrest lived in Wangaratta. He is a qualified plasterer. In 2009, he injured his back in a work accident, as a result of which he has undergone major surgery and continues to experience back pain. He has not worked since that accident. I was told that for some time he was in receipt of Workcover benefits and that his common law claim was, apparently, settled for $85,000 last year.
Although there is no medical evidence concerning the issue, it appears, at least by reason of his prior convictions and his statements to Mr Coughlan, that the applicant has a history of drug addiction, including in recent years an addiction to ice.
The applicant’s parents reside in Wangaratta and maintain regular contact with the applicant.
The applicant has a relationship with Ms Chloe Wilson and they have two daughters, one of whom is eight months old. The applicant has been the subject of apprehended violence orders in New South Wales requiring him to stay away from Ms Wilson and his children and he remains subject to an order made 20 November 2013.
Prior convictions
The applicant does not have a serious criminal past, but he does have a history of contravening court orders and committing offences involving drugs.
In June 2006, the applicant was convicted of breaching an intervention order in Victoria. Two months later, he was convicted of possessing cannabis and driving whilst disqualified. The applicant was again convicted of drug related charges concerning cannabis and amphetamines in September 2009, March 2011 and January 2014.
The applicant also has a criminal history in New South Wales. In November 2012, he was convicted of drug-related charges. In October 2013, he was convicted of stalking in a domestic situation for which he received a 12 months suspended sentence. The applicant was also convicted of ‘motor vehicle menaces with intent’ and contravening an apprehended violence order. In November and December 2013, he was again convicted of drug related charges and a further breach of his apprehended violence order. In March 2014, the applicant again breached his apprehended violence order for which he was sentenced to two month imprisonment.
On 5 August 2014, the applicant was charged with breaching the apprehended violence order by visiting Ms Wilson at an Albury hotel. He was bailed and was due to appear at the Albury court on 30 September 2014.
The circumstances of the offending
Operation Juliet1 was conducted by Victoria Police officers into the trafficking of illicit drugs, particularly ice, by a group operating in the north-east of Victoria and particularly in and around Wangaratta.
Although the current charges relate to offences committed between 11 July 2014 and 11 September 2014, the telephone intercept of conversations between the applicant and several of his co-accused (particularly one Ms Jessica Fogarty), indicate that the applicant has at least, since early 2014, been intimately involved in the activities of the group which, it is alleged, was operated by Ms Fogarty and a Ms Jessica Short. If accepted as accurate, the intercepts demonstrate that the applicant regularly assisted Ms Fogarty as a ‘standover man’ in relation to the collection of drug debts.
There are a number of disturbing aspects of the applicant’s conduct disclosed in the remand summary. First, the applicant is prepared to resort to violence in pursuing the recovery of monies owing from drug deals. He is alleged to have committed an aggravated burglary in pursuit of drug debts, which included at least one assault of a person (previously owing monies to Ms Fogarty) in the course of a home invasion.
On several occasions, the applicant has been recorded discussing with Ms Fogarty the recovery of monies owing to her from drug deals. For instance, on 3 June 2014, in a conversation with Ms Fogarty, the applicant said:
People rip you like they do, I hate it. Do you want me to do a few run ins. Fuck, I’ll be at your feet when you need help.
And, on 25 August 2014, in a conversation with Ms Fogarty in relation to a drug debt, he said of his method of enforcement:
He realises now, in what I’m meaning, pay up. He cried and yelled ‘my back, my back’ because I dragged him by the car with half his body caught in the window until I stopped and strangled him until he near passed out.
Three days later in an intercepted conversation on 28 August 2014, the applicant told Ms Fogarty that a customer owed him a drug debt and that he had people coming to enforce it prior to Christmas.
When the applicant was arrested on 11 September 2014, he was in possession of three grams of ice as well as over $4,000 in cash and two credit cards belonging to ‘customers’.
Secondly, the intercepted communications also demonstrate that the applicant was aware that in carrying out his activities on behalf of Ms Fogarty he was in breach of a bail curfew.
The strength of the Crown case
It was not contended by the applicant that the Crown case should be regarded as weak or lacking in substance. I was told the applicant intends to plead not guilty. Of course, the applicant is entitled to the presumption of innocence.
It was argued by the respondent that I should, in determining whether to grant bail, take into account the fact that as a result of the telephone intercepts further charges may be laid, some of which may be more serious than those already filed (for instance, the applicant may be charged with trafficking in a drug of dependence in a commercial quantity). Indeed, the submission went so far as to say that, notwithstanding the absence of any such charges, this application for bail was premature.
This submission should be rejected. The putative charges remain illusory. There was no suggestion as to when such charges might be laid or what, in substance, they may contain. On this application the Court must deal with the charges as currently laid, unless there is solid evidence to establish that further charges will be laid and details of the nature of the charges provided by the prosecutor. No such evidence was adduced on this application.
The provision of a surety
If granted bail, the applicant’s parents are prepared to place their equity in their residence as surety. I was told that this is approximately $50,000.
The dependency of the applicant’s partner and child
The applicant asserts that his young child is dependent upon him. I found this suggestion curious in the least. The applicant is the subject of an apprehended violence order in New South Wales which prevents him being within 50 metres of his partner and children. In addition, it is unclear how the applicant lawfully supports his child, as asserted: he has not worked for six years and is apparently not in receipt of Commonwealth or Workcover benefits.
Delay
As I mentioned earlier, this was the primary factor relied upon by the applicant. It is one of real significance.
As part of the Operation Juliet1, there are in excess of 30,000 telephone communications, with approximately 6,000 pages of transcript. The surveillance material, unedited, exceeds 1,000 hours. There are an additional 100,000 mobile telephone communications which require analysis and over 100 statements have been taken.
In December of last year, the prosecution asked that the Committal Mention date be fixed for 2 July 2015, anticipating that a full brief would be ready for service by May 2015.
If this timetable were to be adhered to, it is likely that the committal itself will occur late in 2015. While there was some debate at the Bar table, it seems clear that if the trial were to be heard in Melbourne (and particularly if there remained a large group of co-accused contesting the charges), it would not be heard until close to the end of 2016. The trial will involve multiple accused and many witnesses. It cannot be heard at Wangaratta because of the state of the Court facilities, and the only other regional prospect is Wodonga. It is not at all clear whether the trial could be heard at that Court and, in any event, there is the prospect of an application for transfer of venue.
In summary, I accept the contentions of counsel for the applicant that it is likely that, absent the applicant changing his plea, his case will not be heard until late 2016.
The practical end result is that the applicant will spend two years in custody prior to the trial. Whilst this is a significant matter, and considerably disturbing, it is not the only consideration, and needs to be viewed in the light of the requirements of s 4(2)(d)(i) of the Bail Act – to which I now turn.
Unacceptable risk of committing an offence whilst on bail: s 4(2)(d)(i)
The applicant’s prior criminal history reveals only a minor indication of violence. However the intercepted telephone conversations which I have set out, as well as what appears to be a strong prosecution case on the aggravated burglary count, demonstrate a willingness on the part of the applicant to perpetrate acts of violence in relation to drug deals to the extent of a home invasion.
It was said on behalf of the applicant that stringent bail conditions restricting the applicant to residence at Recoveroz, a long distance from Wangaratta, would reduce the likelihood of him committing an offence whilst on bail.
I mentioned earlier that Mr Coughlan gave evidence as to the operation of a drug rehabilitation facility known as Recoveroz. I reject the submission made by counsel for the respondent that his evidence, in essence, was irrelevant and better suited to a plea. Clearly, if the Court is considering a grant of bail, the terms and conditions of that bail are relevant in determining the acceptability of the risk posed by the applicant as s 4(3)(f) of the Bail Act makes clear. Here, the applicant quite properly argued that a relevant consideration in assessing that risk was a condition concerning the residence of the applicant away from Wangaratta and what steps he might take to reduce or eliminate his drug addiction which, presumably, fuels his need for money. That being said, as discussed now, my concerns about the applicant are not alleviated by Mr Coughlan’s evidence.
Mr Coughlan said that the applicant was a suitable candidate for the program and provided the Court with a list of conditions that would apply to the applicant’s admission to the program. The proposed conditions included that the applicant:
(a) be subjected to random drug screenings twice a week;
(b) for the first month of the program be required to be in the company of an authorised person at all times;
(c) not contact friends or family for the first 28 days following his admission; and
(d) be subjected to a night curfew.
Mr Coughlan was at pains to state that if the applicant breached any of the conditions, or became unsuitable for the program, he would notify the informant immediately. Mr Coughlan recommended that the applicant be placed in the program for 12 months. I asked Mr Coughlan to comment on the risk that after 12 months the applicant may return to Wangaratta (assuming he does not abscond during the program) and reunite with his criminal associates there. Mr Coughlan acknowledged that possibility. He said:
We do the best we can to provide options for all of our clients to take advantage of the program and stay clean. It’s a matter of teaching the client that there is another way of doing things, instead of recourse to old behaviour which is going back to drug use all the time…
I have a number of reservations concerning the Recoveroz arrangements if there is a grant of bail with an attachment of the conditions suggested by Mr Coughlan.
First is the artificiality of the arrangement with Recoveroz. The organisation was engaged by the applicant’s lawyers. The applicant himself has shown no inclination whatsoever in the past, of his own volition, to seek assistance in rehabilitation. His only other attendance at a rehabilitation service was as a result of a court order in New South Wales when he was required to attend Odyssey House at Wagga Wagga. Whilst it was submitted by counsel for the applicant that third party intervention was the norm in relation to rehabilitation, I take a different view. I think it speaks volumes for the applicant’s lack of genuine interest in rehabilitation that the only stimulus is the prospect of incarceration. As I will explain in a moment, I do not believe that the applicant has any genuine interest in rehabilitation.
Second, the evidence as to the assessment of the applicant by the Recoveroz personnel is scant. Mr Coughlan and Mr Thompson, his colleague who provided a report concerning the applicant, simply rely upon the applicant’s account as to his willingness to engage in the rehabilitation process. They had no access to material from Odyssey House or any other relevant material from the applicant’s treating general practitioner in Wangaratta.
Third, I am by no means satisfied that removal from Wangaratta will help the applicant attempt genuine rehabilitation or inhibit him from committing an offence. In a letter written by the applicant when in custody only a few months ago to Cheyne Orcher, a co-accused, he wrote:
DALTS,
HOW IS IT OVER IN C YARD YA MONYANG I’LL BE OVER AS SOON AS I’M ALOUD CUNT, WELL ATLEAST YOU’VE GOT YA BESTIE NOW LOL. HEY GO FOR BAIL ON 19TH OF THIS MONTH BRO AND HOPEFULLY WE BOTH GET RELEASED AND GET SHIT GOING TOGETHER UNO AS UNO AS MY LAWYERS BILL WILL BE $30,000 WELL FUCK ME BROTHER FROM ANOTHER MOTHER.
CANT WAIT TO GET OUT BRO IM OVER THIS JAIL EVEN KNOW THE PULL I’VE GOT “LMAO” FIG JAM. AT LEAST YOU HAVE YOUR CAR BACK BRO FUCK THE COPS THEY HAVE NOTHING ON US THE RAT DOES.
HOWS YA LITTLE ONE GOING. SHE’S BE BIG NOW HAVE YOU SEEN HER MUCH. HEY I’M MOVING TOO MELBOURNE YOU SHOULD DO SO YA SELF OR YOU TOO SCARED FUCK IF SO YOU HAVNT CHANGED THEN LOL LOL ANYWAY LOOSE LIPS SINKS SHIPS SO DON’T FUCKING SAY A THING LOL WILL STAY MATES THEN [sic]
Moreover, the applicant’s history in relation to obeying court orders is disheartening. He has been convicted on three occasions for breaching the New South Wales apprehended violence orders – on the last occasion, he was sentenced to two months imprisonment.
In summary, I am not satisfied that simply removing the applicant from the scene of his alleged wrongdoing and requiring him to attend Recoveroz will sufficiently reduce the risk of him committing an offence whilst on bail to the point where it is acceptable. Nor do I think that the provision of a surety will ameliorate this concern.
Interfering with witnesses or otherwise obstructing the course of justice: s 4(2)(d)(i)
For the reasons I advanced under the previous point, I am not convinced that this risk is obviated by a bail condition requiring the applicant to live in Melbourne or to participate in the Recoveroz program. On the basis of the telephone intercepts, the applicant has shown a willingness to deal violently with others, and particularly those involved in the purchase of drugs, which will inevitably include a number of the co-accused and witnesses.
Moreover it is clear from the letter to Cheyne Orcher that the applicant intends to remain in contact with at least one of his co-accused.
There are many, many witnesses in this case, and I think an unacceptable risk remains (whatever the stringency of bail conditions) of interference with potential witnesses prior to the trial.
Conclusion
I am not persuaded that cause has been shown. I consider there is an unacceptable risk that, if I were to release the applicant on bail, he would re-offend and interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
For these reasons I refuse the application for bail.
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