Application for Bail by Philip Satatas
[2017] VSC 156
•29 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0046
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an Application for bail by Philip Satatas |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2017 |
DATE OF RULING: | 29 March 2017 |
CASE MAY BE CITED AS: | Application for Bail by Philip Satatas |
MEDIUM NEUTRAL CITATION: | [2017] VSC 156 |
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CRIMINAL LAW – Bail – Show cause situation – Kidnapping, false imprisonment, intentionally causing injury, theft, assault in company and using dangerous article.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Paul D’Arcy | Solicitor for Public Prosecutions |
| For the Accused | Mr Jason Gullaci | James Dowsley & Associates |
HIS HONOUR:
On 7 January the applicant, Phillip Satatas, was arrested and remanded in custody on nine charges which included kidnapping, false imprisonment, making a threat to kill, intentionally causing injury, theft of a motor vehicle, assault in company and using a dangerous article.
He unsuccessfully applied at the Melbourne Court for bail on 15 February.
As a result of being charged with an indictable offence in the course of which the applicant is alleged to have used an offensive weapon, the applicant is required to show cause why his detention in custody is not justified pursuant to s.4(4)(c) of the Bail Act 1977 (‘the Act’).
The offences that are the subject of those charges are alleged to have occurred on 27 November and 28 November 2016. The circumstances of the offending are alleged in the police summary of evidence contained in the papers, which I shall summarise.
It is alleged that on the evening of 27 November the complainant was assaulted by the applicant and his two alleged co‑offenders, Ricki Kelly and Brett Kelly, after he had parked his vehicle in a street in Diamond Creek in order to answer a telephone call.
The applicant and his two co-offenders are alleged to have pulled the complainant from his vehicle and physically assaulted him by punching and kicking him. In the course of that assault it is alleged that the co‑offender, Ricki Kelly, attacked the complainant twice with a blowtorch. The complainant was then forced into the boot of his vehicle and the lid of the boot was closed.
The applicant and the co‑offenders then departed the scene with the applicant driving the complainant's vehicle and the co‑offenders driving their own vehicle. The complainant was driven to an unknown location where the boot was opened and his mobile phone was stolen from him. He was punched in the jaw, breaking three of his teeth. The applicant and his co‑offenders bound the complainant with ducting tape, removed his shoes and socks and forced a sock into his mouth in order to gag him. During that time the complainant was begging to settle a debt between himself and Ricky Kelly.
The complainant was then conveyed to an address in Heidelberg Heights. He was removed from the vehicle and carried inside that address while still bound. The three offenders placed him on a chair. The applicant tied the complainant's hands, kicked him to the ground and began stepping on his head and back while the co‑offenders watched. The complainant was then threatened with his life and was told his assailants had organised for a snake to be placed near him so as to bite him.
Subsequently, at about 4 am on the next morning, 28 November, the complainant, who was still bound and gagged, was forced into the boot of his vehicle which was driven to South Morang where it was abandoned by the applicant and his co‑offenders. Some hours later the complainant managed to open the boot by kicking it. Eventually he was found by a passer‑by who telephoned the police.
The complainant attended at the Northern Hospital on the same day. On examination he was found to have bruising to the left shoulder above the right eye, to the left loin and to the back of the head. He also had multiple burn marks to his elbows.
On 5 December he was examined by Dr Au of the Victorian Institute of Forensic Medicine. He was observed to have multiple injuries to various parts of his body, including to his head and neck, back, both arms and both legs consistent with the application of blunt force trauma. Dr Au could not exclude an electro‑shock weapon as the cause of injuries to the right clavicle, right elbow and right knee.
On 7 January the applicant was arrested in Clayton South. Since then he has been in custody. A committal case conference in respect of the charges against the applicant and the two co‑accused has been fixed for 11 April next.
On 12 January the complainant identified the applicant as one of his assailants from a photoboard. In addition, DNA evidence taken from the boot of the complainant's vehicle and from a cigarette butt found in the boot is said to link the applicant to the alleged offending. Four latent fingerprints located on the boot area of the complainant's vehicle have been identified as being identical to those of the applicant.
On 28 November attending police found a blowtorch in the shape of a pen on the road outside the address at which the complainant was abducted. On the search of the Heidelberg Heights address on 2 January 2017 police located another identical torch.
The applicant is 27 years of age. He has had one previous court appearance. In November 2013 he was before the Moorabbin Magistrates' Court on charges of cultivation of a narcotic plant, possession of drugs of dependence, possession of a prohibited weapon, theft from a motor vehicle and attempted theft from a motor vehicle. Each charge was adjourned without conviction for a period of 12 months on condition that he pay a sum to the court poor fund and complete a Salvation Army lifestyle program.
Mr Gullaci, who appeared for the applicant, relied on a number of factors in support of his application. They may be summarised as follows: In the first place it is put that this is the first occasion on which the applicant has been in custody where he has remained for two and a half months in prisons for sentenced offenders. Secondly, it was pointed out that he has only limited previous court appearances, none of which have resulted in a conviction and, importantly, none of which were for violence or the use of a weapon. There are no other matters pending against the applicant.
Thirdly, Mr Gullaci relies on evidence that if he were released on bail the applicant would be able to reside at his parents' home address at [redacted], Rye where both his parents and his grandmother live.
In support of that, Mr Gullaci called evidence from the applicant's mother and her evidence satisfies me that the accommodation at that address is suitable for the applicant. Indeed, the applicant resided at that address for a period of two and a half years before March 2016. He left that address to live with his then fiancée in Mornington, where he was living at the time of the alleged offending.
Fourthly, Mr Gullaci relied on the evidence that if he were released on bail the applicant would have the support of his family and, in particular, his parents who could provide a stable environment for him to live in.
In addition, the applicant's parents are prepared to go surety in the sum of $15,000 to ensure that he answer his bail and attend court.
Mr Gullaci also put before the court a report of the Court Integrated Services Program which assessed the applicant on 7 February 2017. That report is now out of date but indicates that the assessment then made was that the applicant was suitable to enter the program. In particular, the report noted that the applicant has had a history of drug abuse for almost ten years and in 2012 he had a diagnosis of depression and anxiety.
The report proposed an initial treatment plan comprising an appointment with the Australian Community Support Organisation, an appointment with his local general practitioner in Rye and appointments with the CISP case manager.
Mr Gullaci also pointed out that the applicant, at least until 2016, had regular employment. He is a trained and certified carpenter. However, it appears that at the time of the offending he was self‑employed and it is not clear the amount of work that he then had available to him or would have available to him on release.
Finally, Mr Gullaci relied on the fact that on 10 March this year Justice Beach of this court granted to the co‑offender, Brett Kelly, bail on strict conditions. Mr Gullaci pointed out that in fact Mr Kelly has more previous convictions, albeit in New Zealand, than the one prior court appearance of the applicant.
Mr Gullaci realistically accepted on the facts of the alleged offending that there was a risk of the applicant re‑offending which he needed to address. However, he submitted that the factors to which I have just referred were sufficient to offset that risk and that conditions, similar to those imposed on Brett Kelly, should be sufficient to address any residual risk.
As I stated, in support of the application, I have heard the evidence of the applicant's mother, Rosa Satatas, who told me a bit about the applicant's background. Mrs Satatas understands the gravity of the charges against her son and some of the issues relating to his drug abuse. She told me on her oath that she undertook that if the applicant failed to comply with any of the conditions of bail, that she would forthwith notify the police.
In response to the application, Mr D'Arcy, who appeared for the respondent, submitted that notwithstanding the matters addressed by Mr Gullaci, nevertheless, if the applicant were released on bail there would be an unacceptable risk that he would not answer his bail, that he would interfere with witnesses and that he would endanger the safety of the public. In that respect Mr D'Arcy relies substantially, if not wholly, on the circumstances in which the offending is alleged to have occurred.
In weighing those arguments, the resolution of the matter that has been put before me is by no means simple. I should say at the outset that I am not particularly concerned that if the applicant were released on bail that he would not answer his bail. His family is in Victoria and he has strong ties to this jurisdiction. Any risk in that respect, in my view, can be appropriately catered for by the imposition of conditions, including daily reporting to the local police station.
The real issue that needs to be addressed concerns the risk of the applicant engaging in conduct of a kind reflected in the alleged offending if he were released on bail and it is that risk that has given me some concern.
As I stated, under s.4(4) of the Act the applicant is required to show cause why his continued detention in custody is not justified. In the circumstances of this case, it is not necessary for me to enter into the issue whether such an application involves a one‑stage or a two‑stage process and whether the burden of establishing or negating the risk issues proscribed in s.4(2) is borne by the respondent or the applicant.
On any view, the circumstances of the alleged offending in this case are very serious and, indeed, quite alarming. The applicant is, of course, entitled at this stage to the presumption of innocence and the materials available to me relating to the offending are somewhat limited.
Nevertheless, the circumstances of the alleged offending contained in those materials and the apparent evidence of the applicant's involvement in it are sufficient to raise a real concern that if he were released on bail he might become involved in other violent and dangerous behaviour.
Mr Gullaci realistically accepted that the materials before the court gave rise to such a risk, which he sought to address by the matters to which I have referred.
Thus, the critical issue is whether the circumstances relied on by the applicant are sufficient to negate or reduce the risk that the applicant might so conduct himself if I were to grant him bail. It is that issue that has given me reason to pause in this matter. As I stated, the circumstances of the alleged offending do give rise to a real concern.
Nevertheless, on the other hand, there are a number of facts that in combination I consider do weigh against and mitigate to a realistic degree the level of that risk. Firstly, it is relevant that the applicant has only had one previous court appearance and the fact he did not sustain a conviction in that matter is, to some extent, a reflection of the seriousness or lack of it of the offending alleged in that case. Importantly, he has no previous history of violence or of any other anti‑social conduct.
Secondly, this is the first time that the applicant has been in prison. As I have mentioned, he has spent the last two and a half months, in prison with sentenced offenders. It would be expected that that term of imprisonment would have had a salutary effect on the conduct and the insight of the applicant into his conduct and, in particular, as to the issues pertaining to his drug abuse.
Thirdly, as I have mentioned, the alleged involvement of the applicant in the offending was clearly in the context of a long‑standing drug problem that was referred to in the CISP report that has been put before me. In my view, appropriate conditions can be tailored to require that appropriate treatment be undertaken by the applicant in order to address that issue and so alleviate the risk level associated with it.
Fourthly, and importantly, the applicant does have stable accommodation available with his parents. While I had some reservations as to his mother's evidence relating to her understanding of her son's drug problem at the time of the offending, nevertheless, I do consider that she would exercise a sensible degree of stability and supervision over the applicant in order to ensure that he undertake appropriate treatment which would not only be for his own good but, importantly, for this court, the good of the community. In that respect it is significant that the applicant has the support of his parents so much so that they are prepared to put at risk a substantial part of their savings as security for his further attendance at court.
I also note in that respect the undertaking given by the applicant's mother, Mrs Satatas, that she will immediately report to the police any infraction by the applicant of the conditions of his bail and I expect that Mr Gullaci will have carefully explained to Mrs Satatas the effect of an undertaking so given to the court.
Notwithstanding the force of those matters, as I have said, the matter is not simple. However, in the end I do consider that the matters relied on by Mr Gullaci are such as to persuade me that if appropriate conditions are imposed the applicant has shown cause why his continued detention in custody is not justified.
Before outlining those conditions, I should add one further matter. In my view, ordinarily issues of parity play little, if any, role in bail applications. Nevertheless, there are very close similarities between the applicant's case and the case of Brett Kelly and, indeed, as I stated, Mr Kelly has more previous convictions than the applicant. That observation does not of itself justify or indeed weigh in favour of the grant of bail in this case. Nevertheless, I am fortified in the conclusion that I have reached that in very similar circumstances the co‑offender was granted bail subject to strict conditions similar to those that I am minded to impose in the present case.
In those circumstances I propose to order as follows: that the applicant, Phillip Satatas, be admitted to bail on his own undertaking with one surety in the sum of $15,000 upon the following special conditions.
(a) The applicant is to attend at the Melbourne Magistrates' Court of Victoria on 11 April 2017 to attend a committal mention and then surrender himself and he must not depart without the leave the court and, if leave is given, return at the time specified by the court and again surrender himself into custody.
(b) The applicant is to reside at [redacted], Rye in the State of Victoria and notify the informant within 24 hours of any proposed change of address.
(c) The applicant is to attend at the Court Integrated Services Program, CISP, within 24 hours after release and thereafter follow all lawful directions made including any treatment, counselling or supervision as recommended by CISP.
(d) No later than 4 pm on 31 March the applicant is to provide written proof of his attendance at CISP to the informant.
(e) The applicant is to arrange and attend an appointment at the Rye Family Clinic for the purpose of undertaking a mental health assessment and referral to an appropriate counsellor within seven days of his release on bail.
(f) The applicant is to remain at his premises at [redacted] between the hours of 9 pm and 6 am each day for the duration of bail.
(g) The applicant is to present himself at the front door of those premises during those hours when called upon by a member of the Victorian Police Force to do so.
(h) The applicant is to report daily to the officer‑in‑charge of the police station at Rosebud or his or her nominee between the hours of 8 am and 7 pm.
(i) The applicant is to abstain from possession or use of any drugs of dependence.
(j) The applicant is not to contact or by any means whatsoever any witness for the prosecution except the informant or his nominee, or to have contact with either co‑accused.
(k) The applicant is not to leave the State of Victoria.
(l) The applicant is to surrender any valid passports or any other valid travel documents to the informant within 48 hours of being admitted bail and not apply for any other.
(m) The applicant is not to attend any point of international departure before the period of bail.
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