Application for Bail by Vincent
[2018] VSC 9
•25 January 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0327
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| and | |
| IN THE MATTER of an Application for Bail by YOSHAAN VINCENT | |
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JUDGE: | J Forrest J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 January 2018 |
DATE OF JUDGMENT: | 25 January 2018 |
CASE MAY BE CITED AS: | Application for Bail by Vincent |
MEDIUM NEUTRAL CITATION: | [2018] VSC 9 |
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CRIMINAL LAW – Application for bail – Whether the applicant is an unacceptable risk – Charges of extortion, theft and possessing a controlled and/or prohibited weapon – Bail Act 1977 (Vic), s 4(2)(d) – Bail granted on conditions – Geographical limitation on the applicant’s movements whilst on bail.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | D. Edwardson QC with P. Smallwood | Grigor Lawyers |
| For the Respondent | N. Hutton | Office of Public Prosecutions |
HIS HONOUR:
The applicant, Yoshaan Vincent, has been remanded in custody since 29 November 2017 and is currently held at the Metropolitan Remand Centre.
Mr Vincent is the subject of charges of extortion with threat to inflict injury (two charges), theft of a motor vehicle, possessing a controlled weapon without excuse, possessing a prohibited weapon without exemption/approval and failing to provide information relating to a data storage device seized under warrant.
On 11 December 2017 Mr Vincent’s application for bail was refused by a Magistrate at the Melbourne Magistrates’ Court.
It is alleged by the prosecution that Mr Vincent’s offending occurred when he was a member of the Comanchero Outlaw Motorcycle Gang (the Comancheros) and took place in the company of two other members of that gang.
Those two co-accused have also been charged with similar offences involving the victim. One has been bailed and the other refused bail.
Mr Vincent has not been charged with any offences requiring him to ‘show cause’ pursuant to s 4(4)(a) of the Bail Act 1977 (Vic) (the Act). The Court is required by s 4(2)(d) of the Act to refuse bail if satisfied there is an unacceptable risk that Mr Vincent, if released on bail, would:
(a) fail to surrender himself into custody in answer to his bail; or
(b) commit an offence on bail, or
(c) endanger the safety or welfare of members of the public, or
(d) interfere with witnesses or otherwise obstruct the course of justice.
At the heart of the application is whether those risks can be adequately satisfied by granting bail on strict conditions, including participation at a drug rehabilitation clinic as an outpatient; no association with members of the Comancheros and no contact with witnesses.
Submissions of the applicant and the prosecution
Underpinning Mr Vincent’s application are the following contentions:
(a) Mr Vincent proposes to plead not guilty to the charges and is entitled to the presumption of innocence;
(b) It is likely that Mr Vincent will be kept in custody for at least 15 months before standing trial if refused bail;
(c) Mr Vincent will undertake a drug rehabilitation program, attending sessions with a counsellor at least once a week;
(d) Mr Vincent is currently incapacitated by reason of a nasty tear of his Achilles tendon and has considerable restricted mobility; and
(e) Any risk of Mr Vincent interfering with witnesses or reoffending can be addressed by stringent bail conditions.
As against this, the respondent submits that:
(a) Mr Vincent has a significant criminal history;
(b) These offences were alleged to have been committed whilst Mr Vincent was on a Community Corrections Order (CCO), some 2 months after his release from gaol, having served a 12 month sentence of imprisonment;
(c) There is a strong prima facie case against Mr Vincent; and
(d) Given the nature of the charges, there is a real risk that Mr Vincent will reoffend and, in particular, that he may intimidate the victim who will be the primary witness at the trial.
Mr Vincent’s personal circumstances
Mr Vincent is now 28 years of age and is a qualified carpenter. He was in sub-contract employment between July and October 2017.[1]
[1]Reference of Timothy Lefebvre dated 10 December 2017.
He is in a long term relationship with his partner, who is prepared to support him if granted bail. He is also supported by his parents, with whom he will reside if granted bail.
Criminal history
Mr Vincent’s criminal history is not encouraging.
Mr Vincent has prior convictions for trafficking methyl amphetamine, recklessly causing serious injury, dealing with property suspected of being the proceeds of crime, possession of drugs, possession of weapons and explosives, and affray.
Mr Vincent’s prior convictions date from the Children’s Court in 2006. For six years until 2013 he was, at least as far as the criminal justice system is concerned, a law abiding member of the community.
In 2013 in the County Court he was sentenced to 15 months imprisonment with 11 months suspended for 12 months for a charge of recklessly causing serious injury, and was concurrently sentenced to 7 months imprisonment with 3 months suspended for 12 months on a charge of affray. So, he effectively served 4 months’ imprisonment.
In November 2016 in the Magistrates’ Court, on charges of trafficking methyl amphetamine, possessing an explosive substance, possessing an unregistered handgun, dealing with property which was suspected proceeds of crime, possessing cocaine, possessing a prohibited weapon and retention of stolen goods, he was sentenced to 12 months imprisonment to be followed by a 12 month CCO. A condition of the CCO was that he undergo assessment and treatment for drug abuse and for mental health. He was released from gaol on 10 June 2017 and commenced the CCO on 13 June 2017.
The circumstances of the offending
The prosecution alleges that on 1 August 2017 Mr Vincent sent an Instagram message to the victim requiring him to attend a gym at Hallam. At the gym and in the company of a fellow Comanchero member, Mr Vincent demanded that the victim give him his motorcycle or $15,000 cash today or ‘you’ll get your head smashed in’.
Four weeks later Mr Vincent met with the victim at the Sandhurst golf club and took possession of the motorcycle, and helmet. There is CCTV of a person matching Mr Vincent’s description leaving the golf club and Mr Vincent matches the description of the male described by the victim.
Five weeks later, on about 8 October 2017, Mr Vincent again contacted the victim and instructed him to return to the Sandhurst golf club. At that time, with the two co-accused—both alleged to be members of the Comancheros—Mr Vincent demanded that the victim sign and hand over his VicRoads registration transfer paperwork for the motorcycle. The victim did so.
Subsequently, the two co-accused in October 2017 (without Mr Vincent’s assistance) are alleged to have made further threats upon the victim, endeavouring to extort cash from him on several occasions.
On 2 November 2017 the victim reported the matter to police as he feared that he would be seriously assaulted as he could not meet the increasing demands for payment.
On 29 November 2017 Mr Vincent was arrested and a search of his vehicle located a black hunting knife, a nitro gym and Comanchero shirt, and two sets of false number plates.
The charges
Mr Vincent was charged with six charges, particularised in the following terms:
Charge 1: The accused at Sandhurst between 2 August 2017 and 29 August 2017 made a demand of [the victim], while threatening to inflict injury upon [the victim], intending the recipient of the threat to fear that the threat would be carried out unless the recipient complied with the demand.
Charge 2: The accused at Sandhurst on 9 October 2017 made a demand of [the victim], while threatening to inflict injury upon [the victim], intending the recipient of the threat fear that the threat would be carried out unless the recipient complied with the demand.
Charge 3: The accused at Sandhurst on 29 August 2017 did steal a black and gold 2016 Harley Davidson Motorcycle being property belonging to [the victim] and valued at $35,000.00.
Charge 4: The accused at Mount Waverley on 29 November 2017 did possess a controlled weapon without excuse.
Charge 5: The accused at Blackburn South on 29 November 2017 did possess a prohibited weapon without an exemption under s 8B or an approval under s 8C of the Control of Weapons Act 1990, namely a sword.
Charge 6: The accused at Blackburn South on 29 November 2017 without reasonable excuse and being a person who has the relevant knowledge did fail to provide information to access data on a series of electronic devices seized under search warrant at 150 Holland Road, Blackburn South after being informed by a police officer of the existence of a 465AA order and its terms and was informed it was an indictable offence to do so.
The evidence on the application
Ms Sonja Radovic, on behalf of Mr Vincent, and Mr Benjamin Nankin, on behalf of the Director of Public Prosecutions, each filed affidavits.
In addition, Ms Amanda Brown, a drug rehabilitation counsellor with Lamberti Associates provided two reports and gave oral evidence.
Ms Brown is a drug rehabilitation counsellor who has extensive experience and her qualifications were not challenged by the respondent. Mr Vincent told her that he has had a drug addiction issue with methamphetamines for some years and this has played a part in his offending.
Ms Brown has seen Mr Vincent on two occasions (once at the Magistrates’ Court and subsequently at the Melbourne Custody Centre) and believes that he is a suitable candidate for outpatient therapy at the clinic that she operates in South Yarra. It is proposed that he attend once a week and will be monitored by Ms Brown.
Ms Brown is prepared to give an undertaking that she will notify the informant should Mr Vincent fail to attend any outpatient or referral treatment as directed by her.
The proposed conditions of bail
Ms Radovic states in her affidavit that Mr Vincent would undertake to comply with the following bail conditions:
(a) Daily reporting;
(b) To not associate with any member of the Comancheros;
(c) The provision of a surety;
(d) A curfew;
(e) To comply with all lawful directions of Amanda Brown;
(f) To surrender all passports and not apply for another;
(g) To live at a static residential address, 150 Holland Road, Blackburn South;
(h) To not contact any witness for the prosecution save for the informant;
(i) To not contact any co-accused;
(j) To only have one mobile number and provide that number to the informant; and
(k) To provide the passcode to mobile phone to the informant upon request.
Consideration
The prosecution’s task on this application is to satisfy the Court that, notwithstanding stringent conditions as to bail as proposed by the applicant he remains at risk of reoffending or interfering with witnesses – particularly the victim.
There are several matters that support that proposition. Not the least is the fact that the subject offences—of which I am satisfied there is a strong prima facie case—relate to multiple threats of violence to the victim. When this is combined with the fact that Mr Vincent had only been released from jail for a period of two months before the alleged extortion commenced, and was subject to a CCO at the time, there is a real prospect that absent stringent and demanding bail conditions he poses a risk of both reoffending and interfering with witnesses.
The primary consideration in Mr Vincent’s favour is that he will probably spend 15 months, if not more, in custody if bail is refused, pending trial in the County Court. The matter is currently listed for a committal mention on 1 March 2018 and any trial will be at least 8 – 12 months in arrears of that date. Whilst it is not suggested that this period of incarceration would eclipse any potential sentence if Mr Vincent is found guilty, it is a significant period of incarceration of a person who is entitled the presumption of innocence.
There is also the ability for Mr Vincent to receive counselling for his drug addiction from Ms Brown as an outpatient. Notwithstanding that there is evidence that he has experienced problems with drug addiction in the past, I have reservations as to whether this is a genuine attempt at rehabilitation, given that it was initiated by his lawyers prior to his application for bail in the Magistrates’ Court. That said, Ms Brown was an impressive witness and it is clear that Mr Vincent’s drug addiction (while not playing any part in the subject offence) has been a problem in his past.
Finally, there is the suggested provision of a surety by his parents in the sum of $100,000. I think this is relevant but of limited significance. Given that he has a stable relationship, will reside with his parents and has answered bail on all previous occasions, Mr Vincent does not seem to be a significant flight risk. Any such risk will be minimised by the provision of a surety in the sum proposed.
To put it bluntly and colloquially, the real risk, even with stringent bail conditions, is that of Mr Vincent or his cohorts putting “the frighteners”, in one way or another, on the victim. Alternatively, he may despite the bail conditions resume his relationship with the Comancheros with the inevitable consequences of such an association.
That said, the Act places the onus on the Director to satisfy the court that bail should be refused notwithstanding the conditions that may be imposed. In that setting it is inimical to the demands of justice to keep an accused in custody for over a year when he or she is entitled to the presumption of innocence; but bail can only be granted if the risks identified in the Act can be minimised.
In my view, if the conditions proposed by Mr Vincent are attached to an undertaking of bail with the added condition of a geographical limitation upon his movement (i.e. limited to the Melbourne metropolitan area, or a part of it, and excluding attendance at a nitro gym), then he should be granted bail.
I propose to ask counsel for Mr Vincent and the Director to endeavour to formulate appropriate conditions consistent with these reasons.
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