Application for Bail - James
[2016] VSC 283
•24 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0054
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for Bail by Luke James |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 May 2016 |
DATE OF RULING: | 24 May 2016 |
CASE MAY BE CITED AS: | Application for Bail - James |
MEDIUM NEUTRAL CITATION: | [2016] VSC 283 First revision 24 May 2016 |
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CRIMINAL LAW – Bail – Show cause – Applicant charged with offences while on bail – Multiple previous convictions – Addiction to methamphetamine – Unacceptable risk of offending while on bail – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Emma Turnbull Lawyers |
| For the Respondent | Mr J Kibel | Victoria Police |
HIS HONOUR:
The applicant, Luke James, was arrested in the house in which he was residing in Ringwood on 22 March 2016. He was charged with a large number of offences, some 97 in total. They included two charges of trafficking a drug of dependence contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981, twelve charges of dealing with the proceeds of crime contrary to s 194(4) of the Crimes Act 1958, one charge of handling stolen goods, and a number of charges relating to the possession of weapons contrary to provisions of the Control of Weapons Act 1990. In addition, the applicant was charged with 24 counts of committing an indictable offence while on bail pursuant to s 30B of the Bail Act 1977, and 15 counts of contravening certain conduct conditions contrary to s 30A(1) of the Bail Act.
After his arrest the applicant was remanded overnight to appear at the Ringwood Magistrates’ Court by a bail justice. On the following day, an application for bail on the applicant’s behalf was refused. A further application, based on new facts and circumstances, was refused by the magistrate on 28 April 2016. The applicant now applies to this Court for bail.
As a result of being charged with trafficking methylamphetamine pursuant to s 71AC of the Drugs Poisons and Controlled Substances Act, the applicant is required to show cause why his detention in custody is not justified pursuant to s 4(4)(ca) of the Bail Act. In addition, as a result of being charged with indictable offences that are alleged to have occurred while he was on bail awaiting trial for another indictable offence, the applicant is also required to show cause pursuant to s 4(4)(a) of the Bail Act.
The offences, with which the applicant was charged on 22 March last, arise out of a search that was conducted on that day by police, with the assistance of the Critical Incident Response Team, at premises occupied by the applicant, and three other persons, at Kalinda Road, Ringwood. As a result of the search, the police found a number of items that have given rise to the charges brought against the applicant. In particular, a search of the main bedroom located several items of expensive jewellery, that is believed to be stolen, valued at $5,000. The police also found notebooks containing evidence of drug transactions and amounts of money owed for drug transactions. In a cupboard in the bedroom, investigators located a large hunting knife, and on the bedside table they located a zip lock bag containing a white crystal substance, which is alleged to be methylamphetamine. The investigators also located zip lock bags in the dining room, which are also alleged to contain methylamphetamine. At the time of the search, the applicant was in the lounge room of the premises. Investigators found, in that room, five glass containers of testosterone, the trafficable amount of which is valued at $3,750, two zip lock bags containing a white crystal substance believed to be methylamphetamine, two machetes, a large hunting knife in a sheath, and a kitchen knife that was taped to a pole to make a weapon similar to a spear. On the roof of the premises, investigators located a bag containing $1440 cash, and another bag containing a white crystal substance alleged to be methylamphetamine.
At the time of the applicant’s arrest, there were eight separate outstanding matters against him. The applicant was already on bail in respect of three of those outstanding matters.
On 14 October 2015, a search warrant was executed at the Kalinda Road premises. As a result of that search, the applicant was arrested on 5 November 2015, and charged with a number of offences, including possession of a drug of dependence, possession of a prohibited weapon, storing unauthorised explosives, handling stolen goods, possessing an explosive substance, dealing with the proceeds of crime, and four charges of committing an indictable offence while on bail. The applicant was released on bail to appear at the Ringwood Magistrates’ Court on 5 April 2016.At subsequent court appearances, the applicant’s bail, in respect of those charges, was extended to 17 May.
Subsequently, on 23 December 2015, the applicant, together with a co-accused, was intercepted in his vehicle while driving along Mount Dandenong Road, Kilsyth. Police located a cardboard box under the passenger seat containing $25,845 in cash. In total, an amount of $27,335 was located in the vehicle. In addition, one Endone tablet was located in the glove box, which is a prescribed drug of dependence. The applicant was charged with a number of offences, including possession of a drug of dependence, dealing with property that was suspected to be the proceeds of crime, committing an indictable offence while on bail, and contravening certain conduct conditions of his bail. He was released on bail to appear at the Ringwood Magistrates’ Court on 5 April 2016. Subsequently, his bail on those charges was also extended to 17 May.
On 15 August 2014 a search warrant was executed at premises at Wonga Park then occupied by the applicant, pursuant to the Drugs Poisons and Controlled Substances Act. The applicant was charged with eight offences including: trafficking methylamphetamine; possession of methylamphetamine; four counts of possession of a drug of dependence (a prescription drug); possession of a prohibited weapon without exemption; possession of ecstasy; knowingly dealing with the proceeds of crime; handling stolen goods; and possession of cannabis. The applicant was released on bail to appear at the Ringwood Magistrates’ Court on 9 December 2014 on condition that he reside at the Wonga Park premises. On that date, bail was extended upon the same conditions to 26 June 2015. There appears to have been a number of subsequent adjournments of those charges. On 19 April 2016 they were adjourned to 17 May 2016. I understand that on that date they were further adjourned.
In addition, as I stated, at the time of his arrest there were five separate outstanding matters against the applicant in respect of each of which he had been charged on summons.
On 21 October 2015, the applicant’s vehicle was intercepted while he was driving in Mt Evelyn. The police member located an extendable baton in the central console of the vehicle. The applicant was charged on summons with possession of a prohibited weapon without exemption.
On 1 August 2015, the applicant’s vehicle was intercepted by police in Mooroolbark. On a search of the vehicle, police found $630 located under a plastic panel next to the gear stick of the vehicle, and also found a large number of empty deal bags. The applicant was charged on summons with dealing with property that was suspected to be the proceeds of crime pursuant to s 195 of the Crimes Act.
On 19 June 2015, police sought to intercept a vehicle driven by the applicant in Croydon South. The applicant fled in his vehicle at high speed, chased by the police. Ultimately, he was intercepted. The applicant was charged on summons with driving in a manner dangerous, failing to obey the lawful direction by police, and driving his vehicle with a prescribed concentrate of drugs present pursuant to s 49(1)(bb) of the Road Safety Act.
On 17 May 2014, the applicant’s vehicle was intercepted while he was driving in Mooroolbark. He was charged on summons with driving while his authorisation to do so was suspended. Nine months previously, on 12 August 2013, the applicant was intercepted while driving his vehicle in Kilsyth. He was also charged on that date on summons with the same offence.
The applicant, who is 25 years of age, has a large number of previous convictions, arising from ten separate court appearances between September 2006 and May 2015. They include convictions for possession of methylamphetamine, possessing a prohibited weapon without exemption or approval, dealing with property suspected to be the proceeds of crime, possession of a controlled weapon without an excuse, and theft. Two of those previous court appearances are of relevance to the present application.
On 9 August 2013, at the Ringwood Magistrates’ Court the applicant was convicted of a number of offences including dealing with property that was suspected to be the proceeds of crime, two charges of failing to answer bail, possession of a controlled weapon without exemption, possessing amphetamine, and possession of cannabis. He was sentenced to three community corrections orders, each for a period of 16 months. There were conditions of each order that the applicant attend the Lilydale Community Corrections Centre, perform 100 hours community work, and undergo assessment, treatment and rehabilitation for drug abuse or dependency. The informant’s inquiries with the Lilydale Community Corrections Centre have disclosed that the applicant breached the terms of the order on a number of occasions. Those breaches related to the applicant’s failure to attend at mandatory appointments, his failure at a drug screening test, and his failure to perform 81 hours of the prescribed outstanding community work. It also appears that he produced a false document to the community corrections centre, that purported to state that the applicant was employed as a concreter, as an excuse for his non-attendance at the Corrections appointments.
On 23 March 2015, the applicant, while on bail, was arrested and charged with a number of offences, including possession of methylamphetamine, possession of ecstasy, dealing with property suspected of being the proceeds of crime and possession of a prohibited weapon without exemption or approval. A magistrate refused his application for bail. He subsequently applied to this Court for bail. In support of that application, the applicant relied on a Credit Bail assessment conducted on him on 7 April 2015. Based on that assessment, the judge found that the applicant had shown cause why his detention in custody was not justified, and released the applicant on strict conditions, including that he attend appointments at the rehabilitation program that had been arranged for him.[1] As a consequence, the applicant was released on bail on 30 April 2015. It appears that the charges were dealt with on the next day (1 May) by Ringwood Court. On that date, he was sentenced to 37 days’ imprisonment, being the amount of time already served by the applicant in custody.
[1]Re Application for Bail by Luke James [2014] VSC 175.
As I stated, under s 4(4) of the Bail Act, the applicant is required to show cause why his continued detention in custody is not justified. In the circumstances of the present case, it is not necessary for me to enter into the debate whether an application for bail, in such a case, involves a one-stage or a two-stage process, as recently considered by the Court of Appeal in Robinson v R.[2] In this case, as in many cases, that issue is, to a large degree, academic. The applicant’s history, that I have recited, and, in particular, the fact that, at the time of his arrest, he was already on two sets of bail, and subject to five other separate summary sets of proceedings, raise a strong prima facie case that, in the absence of any other consideration, there would be a significant risk that the applicant might re-offend if he were to be released on bail. The central question, then, is whether the applicant has demonstrated there exists sufficient circumstances that either reduce that risk to an acceptable level, or which would otherwise justify his release on bail.
[2][2015] VSCA 161.
The applicant submits that he should be released on bail to enable him to undergo drug rehabilitation treatment with the Credit Bail program, to live with his mother at her address in Mooroolbark, and to work in his uncle’s bricklaying business.
The applicant has been assessed recently by the CISP Remand Outreach Pilot Program in respect of his problems arising from his addiction to methamphetamine. The report of CISP states that the applicant commenced using methamphetamine when he was 21 years of age, and that he has used it almost daily for the two years that preceded his arrest in this case. In addition, the applicant has a gambling problem. He has used poker machines approximately three times per week, and has tended to gamble until his money has run out. The report of CISP, provided to the court, proposes that the applicant reside with his mother, and that he attend an appointment for a comprehensive alcohol and other drug assessment at EACH in Ringwood on 1 June next. CISP has also recommended to the applicant that he contact Gamblers Help for assistance with his gambling problems.
The applicant’s mother has filed an affidavit in support of the application, stating that she is a full time housewife, and that she would be in a position to monitor the applicant 24 hours per day to ensure that he complied with his bail conditions.
Ms Kay Simpson, a close friend of the applicant’s mother, has also provided an affidavit stating that she is prepared to assist the applicant’s mother in overseeing and ensuring that the applicant complies with his bail conditions. Ms Simpson gave evidence on the hearing before me. She stated that she would be prepared to provide a $5000 surety to secure the applicant’s attendance at court. In addition, she was prepared to give an undertaking to the court that she would contact the informant if the applicant did not abide by the conditions of his bail. Ms Simpson stated that members of the applicant’s family, and herself, were prepared to institute a regime by which the applicant would not leave his mother’s residence except in the company of one or other of them.
The applicant’s uncle, Mr Dean James, has sworn an affidavit that the applicant worked with him in his bricklaying business between 2007 and 2010, during which time he proved to be a hardworking and competent employee. However, the applicant ceased working with Mr James when he moved out of home and resided with other people. Mr James states that if the applicant is awarded bail, he would be prepared to re-employ the applicant.
Ms Kaddeche, who appeared on behalf of the applicant, submitted that if the applicant were released on bail, he will be able to reside with his mother, and receive strong family support in undergoing his drug rehabilitation program. She submitted that those factors, together with the fact that the applicant has already spent some time in custody, give reason to be confident that he would not offend if he were released on bail. In addition, the applicant has spent 72 days so far on remand in lockdown conditions at the Metropolitan Remand Centre. It is expected there will be some delay of the prosecution of the offences that arose out of the most recent set of charges against the applicant. Accordingly, she submitted, there is a prospect that the applicant might ultimately spend more time in custody than he would serve under any sentence imposed for the offences alleged against him.
In essence, Ms Kaddeche submitted that, notwithstanding the applicant’s past history, there had been a change in his circumstances since his arrest in March of this year. Since then, the applicant had spent two months in jail, during which he had been abstinent from taking drugs. The applicant had not been required, previously, to reside with his mother. In addition, the applicant’s mother has now changed her address, so that the applicant’s associates would have difficulty finding him. It was submitted that the applicant has prospects of employment with his uncle, and has the support of members of his family and Ms Simpson, each of whom were present in court. It was submitted that if appropriate conditions were imposed, the court could have some assurance that the applicant would not re-offend while on bail.
In response, bail was opposed by Mr Kibel, who appeared on behalf of the informant, on the grounds that the applicant, if released, is an unacceptable risk of committing further offences. It was submitted that that proposition is supported by the applicant’s previous convictions, his history of repeated re-offending, his contravention of previous bail conditions, and his dependence on methylamphetamine which causes him to indulge in extensive drug dealing. In addition, it is suspected that the money that was seized from the applicant was intended to be used by him to pay a large drug debt, and therefore there is a risk that he will re-offend in order to meet that debt.
Ultimately, the critical issue is whether the matters relied on by the applicant on this application are sufficient to offset what would otherwise be a substantial, and well justified, concern that if the applicant were released on bail he might further offend.
As I stated, those concerns are soundly based. The offences, with which the applicant has been charged, were committed while he was on two separate sets of bail, on which he had been released three months and four months previously respectively. The charges brought against the applicant, in March of this year, include 15 charges of contravening bail conditions, relating to his failure to report to Ringwood Police Station as required by the terms of his bail. Those matters, together, give rise to a real concern that if the applicant were released on bail, he would not comply with the conditions of that bail.
In addition, and importantly, the applicant has previously demonstrated a repeated disregard for complying with the law. His long list of previous convictions, to which I have referred, constitute a lengthy pattern of re-offending by the applicant. The offending in this case occurred while the applicant was still subject to five other sets of summary charges, and to the Community Corrections Order that was still current.
In that context, it is also relevant that the applicant failed to comply with the terms of the Community Corrections Order, on which he had been released by Ringwood Court in May 2013. It is clear that the applicant does have an established drug addiction and a gambling habit which needs attention. Each of those two matters place the applicant at further risk of re-offending, unless they are appropriately treated.
Finally, as submitted by Mr Kibel, there is some concern as to the origins of the large amount of money found in the applicant’s vehicle when he was arrested in December 2015, and, particularly, whether it related to a drug transaction in which the applicant was involved. The relevance of that matter, in respect of the present application, is that the seizure of that sum of money by the police may place the applicant under pressure to offend, if he were released on bail.
The above matters, taken collectively, are of significant weight. I well understand, and appreciate, that it is of prime importance that the applicant undertake and receive appropriate treatment for his longstanding drug addiction and his gambling issues. I also accept that the applicant’s mother, father, stepfather, uncle and Ms Simpson, are each sincerely committed to assisting the applicant to embark on a course of rehabilitation. However, ultimately, the applicant is of adult years. While the level of supervision suggested by Ms Simpson would be ideal, nevertheless, in my view, it would not be practicable or workable, other than in the very short term.
As I stated, in the end, the critical issue is whether sufficient matters have been put forward by the applicant to offset the significant factors that indicate that there is a significant risk, that if the applicant were released on bail, he would re-offend. While the matters relied on by Ms Kaddeche are of some weight, ultimately, I am not persuaded that , taken together, they sufficiently reduce the risk of the applicant re-offending to justify his release on bail. The applicant’s history, to which I have referred, points strongly to a pattern of recurrent offending, and to failing to comply with conditions of bail on which the applicant has been previously released. With some regret, I am not persuaded that the matters relied on by Ms Kaddeche, together, are sufficient to provide a realistic level of assurance that the applicant would not return to the same pattern of conduct in which he has engaged for some years, if he were released on bail.
In those circumstances, I have come to the conclusion that the application for bail should be refused.
In reaching that conclusion, I have given some consideration to the issue as to the potential delay in the hearing of the charges that arise out of the applicant’s arrest in March of this year. The matter has been booked for a contest mention at the Ringwood Court in June. A forensic analysis of the drugs, seized at the applicant’s premises, has not been completed. The present expectation is that, nevertheless, the matter can be fixed for a contest hearing within a period of two to three months. I have determined the issue of the application for bail in this case based on that estimate. If the delay, in the disposition of the charges, is substantially longer, then the question of bail may need to be revisited.
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