Application for Bail: Tomisic
[2016] VSC 428
•27 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2016 0093
APPLICATION FOR BAIL BY DINO TOMISIC
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JUDGE: | KAYE JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2016 | |
DATE OF RULING: | 27 July 2016 | |
CASE MAY BE CITED AS: | Application for Bail: Tomisic | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 428 | First Revision: 1 August 2016 |
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CRIMINAL LAW – Bail – Show cause – Whether unacceptable risk of danger to victim if released – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Trirarico & Marcevski Lawyers |
| For the Respondent | Mr J Kibel | Victoria Police |
HIS HONOUR:
The applicant was charged on 13 June 2016 with a number of offences, namely, criminal damage, causing criminal damage by fire, reckless conduct endangering life, intentionally causing injury, recklessly causing injury, unlawful assault, assault by kicking, possession of an unregistered general category hand gun, and refusing to undergo a breath test. He made an unsuccessful application for bail on 1 July 2016 at the Bendigo Magistrates’ Court. Subsequently, on 11 July, he was served with an additional charge of stalking pursuant to s 21A(1) of the Crimes Act 1958. The charges are listed for a mention before the Bendigo Magistrates’ Court on 1 August next. The applicant applies to this Court for bail.
As a result of the stalking charge, it is common ground that the applicant is required to show cause pursuant to s 4(4)(b) of the Bail Act.
The charges arise from incidents that are alleged to have occurred at the home of the applicant’s estranged wife, Jenny Tomisic, at Mia Mia on 13 June. The applicant and Ms Tomisic had been in a relationship since 2002. Since 2005, they had jointly owned and operated the Redesdale General Store in Main Road, Redesdale. Their daughter, Rosalie, who is now aged 5 years, was born in 2011. They married in 2012. The applicant and his wife separated in May 2016. Ms Tomisic rented a small weatherboard house at Mia Mia, a short distance out of Redesdale, and moved into it with Rosalie.
The circumstances of the alleged offences, and the background of the relationship between the applicant and Ms Tomisic, are set out in statements of Ms Tomisic, and of other witnesses, contained in the police brief. In short, it is alleged that, from a fairly early stage in their relationship, there was a history of verbal and physical abuse by the applicant towards Ms Tomisic, particularly in the context of his having indulged in the heavy consumption of alcohol. After the birth of their daughter, Ms Tomisic was subjected to a number of physical and verbal acts of violence by the applicant which predominantly took place after he had been drinking. When intoxicated, the applicant would be provoked by the slightest matter to commit acts of violence towards her. Those incidents included an occasion when the applicant punched Ms Tomisic a number of times to the head, which resulted in her having a black eye, in 2011. In 2015, the applicant held his arm against Ms Tomisic’s throat, and pulled his arm back in a motion that suggested that he was going to punch her. In addition, the applicant would leave a series of notes around the house for Ms Tomisic, which contained vulgar, abusive and degrading remarks compiled while the applicant was in a state of intoxication.
The applicant was a member of the Sporting Shooters Association of Australia for 30 years. On 28 April 2016, he surrendered his five firearms, and Ms Tomisic’s seven firearms, to an authorised firearms dealer.
After Ms Tomisic moved into her rented accommodation in May 2016, she continued to assist at the general store, because she still harboured a strong affection for the applicant, and also because she wished the business to continue.
On 5 June, the applicant contacted the arms dealer, to whom he had surrendered his firearms, and requested one of the firearms, a Savage .22 rifle, saying that his wife had a problem with kangaroos at her house. The firearm was collected by the applicant, and he kept it at his own residence.
On Saturday 11 June, the applicant, Ms Tomisic, and others, were together at the Redesdale Hotel. When the evening concluded, Ms Tomisic gave the applicant a lift to the residence that was attached to the general store, and then she drove home. When she arrived there, the applicant telephoned her and accused her of looking suggestively at one of the hotel staff that night, which Ms Tomisic denied.
On Sunday morning, 12 June, the applicant made an abusive phone call to Ms Tomisic, and then hung up. The applicant then drove to Ms Tomisic’s house. She permitted him to cuddle their daughter, and he left.
Later on the same day, Ms Tomisic went to the Redesdale Hotel with a friend. The applicant was already present at the hotel. He sat with her for a short time then left. He telephoned her twice, at 4.00 pm and 11.00 pm, repeating that he would not be able to live without her.
The applicant was drinking continuously throughout that day, at the hotel, and on his return to his residence. At 3.00 am, on the next morning, 13 June, he drove his Rodeo utility to Ms Tomisic’s house. He attempted to enter the house, but was unable to do so. He tried to wake their daughter by tapping on her bedroom window. Ultimately, Ms Tomisic let him in the house. Initially, the applicant was distraught, but then he became angry when Ms Tomisic told him that the relationship was still off. He then left the house, got into his utility, and drove it straight at, and collided with, the Mercedes sedan vehicle that was jointly owned by himself and Ms Tomisic.
When the applicant returned to his home in Redesdale, he woke up his son who was living there, and talked about the problems that he said Ms Tomisic was causing for him. He was then stressed and depressed. The police attended at his home at 5.40 am. The applicant agreed to assist the police and to attend at the police station at 1.00 pm.
In the meantime, the applicant continued to consume more alcohol. He then attended at the premises of the firearms dealer, returning the rifle in a bag. He had also placed an unregistered .22 calibre hand gun in the bag.
At about midday, the applicant drove to Ms Tomisic’s house. At the time, Kerin Rowlands was present at the house on a social visit, with her 17 year old and 6 year old daughters. The applicant arrived in an angry frame of mind. He remained for about 15 minutes and then left, returning to the general store. At 12.30, pm he telephoned the police station and said he would not be attending as he had earlier agreed to do.
The applicant then loaded a blue 20 litre container of diesel and petrol mix into the rear of his utility. He drove to Ms Tomisic’s house, arriving there at about 2.00 pm. He parked in the front of the house, removed the 20 litre can from the back, and walked towards the house and the Mercedes vehicle that was parked next to it. He said ‘I’m going to burn you out’. Ms Tomisic attempted to grab the jerry can and prevent him from setting fire to the house. She yelled at him that their daughter was inside. While they were struggling over the can, the applicant flicked fuel over Ms Tomisic.
The applicant then walked back to the Mercedes vehicle and threw the jerry can in the boot. Ms Tomisic pulled it out and threw it down the driveway. The applicant then attempted to force Ms Tomisic into the boot of the vehicle, but she was able to escape. At that time, the applicant had a cigarette lighter in his hand.
The applicant told Ms Tomisic that he was going to put her in hospital. He began punching her to the face and head, hitting her in the head with rocks, and kicking her in the stomach. While assaulting her, he called her a ‘dog’ for getting the police involved. That assault continued for a number of minutes.
The applicant and Ms Tomisic then struggled further over the jerry can. At one point, the applicant was able to gain control of the can, and he began splashing it at various points of the house, closest to the Mercedes vehicle. He put the can in the boot of the vehicle, but again it was removed by Ms Tomisic. The applicant then lit the fuel in the boot of the Mercedes vehicle with his cigarette lighter. At that stage, the pillar of the vehicle was approximately 1.8 metres from the wooden decking of the premises, and the front of the vehicle was about 1.1 metres from it. The vehicle was also close to two large United gas bottles that supplied gas to the residence. The dwelling itself is a wooden structure with a large wooden deck around it.
As a result of the actions of the applicant, the vehicle caught on fire. Ms Tomisic attempted to douse the fire with a small extinguisher, but she was unsuccessful in doing so. The fire ultimately destroyed the vehicle. The fire caught onto a beam over the top of the vehicle, but fire crews, who arrived, were able to contain the blaze within one metre of the eaves of the house.
The applicant then drove away from the scene, returning to Redesdale, where he met his son. He told his son that he had done something wrong. The applicant drove his son back to the general store, before changing vehicles. He then drove to one of the hotels in Heathcote where he telephoned the police station stating that he was going to hand himself in. The applicant’s son then drove him to the Heathcote Police Station and parked outside. At that stage, the applicant was not making any sense because of his level of intoxication.
The applicant was arrested by the police in front of the Heathcote Police Station. He became violent in the interview room while awaiting transport to the cells at Bendigo Police Station. Ultimately, he was conveyed to Bendigo Police Station. He was taken to Bendigo Health for treatment, and there he underwent a preliminary breath test, which returned a reading of 0.34 per cent.
The applicant has been in custody since his arrest. On 11 July, he was served with an Intervention Order made on behalf of Ms Tomisic by the Bendigo Magistrates’ Court on 28 June. The terms of that order prohibit the applicant from being within 50 metres of Ms Tomisic, and from being within 200 metres of her residence at Mia Mia.
The applicant is 63 years of age. He has only limited previous convictions, the most recent of which, for driving while disqualified, was incurred in 1992. All of his other previous convictions are more than 40 years old. They are not of any relevance in this application.
The applicant is the sole director, secretary and public officer of the company which owns the general store at Redesdale. He is also the sole signatory to the company’s bank accounts. While he has been in custody, the business has been temporarily operated by his 20 year old sons. It is put on behalf of the applicant that the daily takings of the business have decreased in his absence.
It is proposed that if the applicant is granted bail, he will reside at the premises of Mr Steven Timmons, a friend, at Cranbourne, which is 170 kilometres from where Ms Tomisic resides.
Mr Timmons gave evidence before me. He has known the applicant for some 30 years. Mr Timmons has two jobs. He works part time in his leather making business in Dandenong, and in addition he drives a school bus during the day. He told me that he is prepared to have the applicant reside at his home, and to attend at and work at his business. He also said that he would be prepared to give an undertaking to report to the informant if the applicant breached any of the conditions of his bail.
The applicant has been assessed by Mr Anthony Dieni of the St Paul’s Drug Prevention Rehabilitation and Aftercare Program on 1 July 2016 in the cells of the Bendigo Police Station. Mr Dieni gave evidence at the hearing of the application.
Mr Dieni has been a drug and alcohol therapist and counsellor for almost 40 years. He told me that on his assessment the applicant crossed the line from being a heavy drinker to becoming an alcoholic approximately six years ago. When Mr Dieni first assessed the applicant, he was commencing to withdraw from the abuse of alcohol. Mr Dieni also had the opportunity to speak to the applicant today, and observed that he is in a better physical condition, and does not suffer from the tremors any more. Mr Dieni assessed that the applicant is suitable for the program which he conducts through the St Paul’s Drug Prevention Rehabilitation and Aftercare service. In particular, Mr Dieni would provide counselling to the applicant twice each week. At an early stage in the program, the applicant would be examined by a doctor. In addition the applicant would be required to attend meetings of Alcoholics Anonymous on four nights each week. Apart from the sessions of counselling, Mr Dieni would also have contact with the applicant on the telephone twice per week, and he would also check with the persons conducting the Alcoholics Anonymous meetings to ensure that the applicant had attended. Mr Dieni told me that he would be prepared to notify the informant if the applicant failed to comply with any of the directions given to him concerning his participation in the program.
In cross-examination, Mr Dieni stated that persons, in the situation of the applicant, do suffer from a high relapse rate. Often a long standing alcoholic will suffer a number of relapses before that person is able to gain sufficient insight as to the need to totally abstain from the use of alcohol. However Mr Dieni stated that, in circumstances in which the applicant would be placed on bail, Mr Dieni would have the ‘upper hand’ to ensure that the applicant did remain compliant with the requirements of the program. He told me that the applicant has sufficient insight to understand that he does have an alcohol problem, and that he has to address it.
Ms N Kaddeche, who appeared on behalf of the applicant, has submitted that any risk factors are appropriately addressed by conditions requiring him to reside at Mr Timmons’ home, that he obey all lawful directions of Mr Timmons or his nominee, and that he comply with the conditions contained in the intervention order.
On behalf of the respondent, Mr Kibel submitted that if the applicant were released on bail, there is an unacceptable risk that he would commit another offence, endanger the safety or welfare of members of the public, or interfere with witnesses. In particular, the offences committed by the applicant on 13 June were serious. They took place in the context of a prolonged period of domestic abuse suffered by Ms Tomisic at the hands of the applicant throughout their relationship, causing her to be in fear for her own safety. In this context, Mr Kibel pointed out that the conduct of the applicant on 13 June placed his own five year old daughter in significant danger.
In addition, he pointed out that the applicant has significant issues with alcohol, and that when intoxicated his behaviour becomes unpredictable and violent. The applicant committed the offences despite being aware that the police had become involved and that family violence safety notices were being applied for on behalf of Ms Tomisic. The offending involved a degree of premeditation by the applicant, and the applicant gave no consideration to the risk posed by his conduct to occupants at the house. In addition, Ms Tomisic resides in an area where overnight police response is not immediately available, and where it can take up to an hour for the police to arrive.
As I stated, as a result of the stalking charge, it is common ground that the applicant is required to show cause why he should be granted bail pursuant to s 4(4)(b) of the Bail Act. There are conflicting views, in the decided cases, whether, on such an application, the applicant is required to prove that he is not an unacceptable risk if he is released on bail, or whether the onus remains on the respondent to establish that he is such an unacceptable risk pursuant to s 4(2)(b) of the Act. However, in the context of this application, that issue is academic and I do not need to enter upon it.
On any view, the offending, that the applicant is alleged to have engaged in, was particularly serious. The materials before me raise a real concern whether the applicant, if released, would constitute an unacceptable risk of harm to his wife, and to anyone else, including his own five year old daughter, who might be in her company. The conduct of the applicant, as alleged, was grossly irresponsible and dangerous, and it is most fortunate that no-one was seriously injured as a result of it. It is particularly concerning that the applicant’s conduct put at risk the safety of his own five year old daughter, and Ms Rowlands’ six year old daughter, who were both in the house at the time that the applicant is alleged to have set fire to the Mercedes Benz motor vehicle. In those circumstances, I would only grant the applicant bail if there were an appropriate basis for concluding that sufficient steps can be put in place to prevent a repetition of that, or like, conduct by the applicant.
I should observe that, apart from the risk to Ms Tomisic, there is no suggestion that there is otherwise any risk of the applicant offending, or endangering the public, if he were released on bail. As I stated he has no relevant previous convictions, and there was no evidence that he has been involved in acts of violence outside the domestic setting.
There are a number of factors that would otherwise weigh in favour of the grant of a bail in this case. The applicant has no relevant previous convictions. He has not previously been in jail. He has, for the last 11 years, conducted a successful small business at Redesdale. Most significantly, I am concerned as to the potential period of delay before the charges against the applicant are heard and disposed of, if the matters remain contested. Although both Mr Kibel and Ms Kaddeche, were not able to inform me as to the expected length of that delay, it may be for a number of months. The applicant has already spent two months in custody. In those circumstances, if the issues in the case remain contested, it is likely that the applicant would have spent at least six months in jail before the case is heard.
The particular risk, if the applicant were released on bail, is quite specific, namely the risk of harm to Ms Tomisic, and anyone close to her, if the applicant were released. That risk is necessarily associated with the risk that the applicant, if released on bail, might resort to the use of alcohol again. The critical question that I must consider is whether those risks can be adequately addressed by the imposition of the type of conditions that were discussed with counsel during the course of the bail application.
In the first place, it would be necessary to ensure that the applicant was kept well distant from Ms Tomisic, and from her place of residence, if the applicant were released on bail. I do not consider that the conditions, contained in the intervention order, would be sufficient of themselves to ensure that measure of protection to Ms Tomisic. The question is whether a condition that the applicant reside with Mr Timmons in his home would be sufficient. Mr Timmons was a sincere and honest witness, who understands that if the applicant were to breach any such condition, it would be his responsibility to report the matter immediately to the informant. While I respect the sincerity of Mr Timmons, I do not consider that that condition, alone, would suffice. However, that condition can be reinforced with a further condition precluding the applicant from entering the Greater City of Bendigo municipality, except for the purposes of attending the Bendigo Court. In addition, a requirement that the applicant report daily to the Cranbourne Police Station would add further substance to the residential condition.
It is of course essential that the applicant not indulge in any consumption of alcohol, if he were released on bail. I was particularly impressed with the evidence of Mr Dieni. Mr Dieni has a realistic understanding of the applicant’s condition, and of the steps that must be taken to address it. I also consider that Mr Dieni was sincere in stating to the court that he would immediately report to the informant if the applicant did not comply with any of his directions, or of any of the conditions on which he was granted bail. While, as Mr Dieni conceded, there is a risk of relapse in any confirmed alcoholic, nevertheless the terms of the bail may assist to reinforce the authority of Mr Dieni to ensure that the applicant does remain abstinent during the period of his bail. In addition, added protection can be provided by requiring the applicant to submit to breath alcohol tests upon reporting to the Cranbourne Police Station.
I am conscious that the type of conditions, that I have considered, can never be made watertight. In particular, the police are not able to monitor closely the compliance by the applicant with any such conditions. Nevertheless, taking the matters that I have discussed into account, I consider that conditions can be tailored to provide an adequate measure of protection against the applicant repeating the conduct he is alleged to have engaged in when he committed the offences with which he is charged. In order to achieve that objective, it is necessary that the conditions be stringent, particularly, as I stated, to ensure that the applicant remain at a safe distance from Ms Tomisic, and that he remain abstinent, while he is on bail.
Accordingly, I am prepared to grant the applicant bail, on the usual conditions, and subject also to the following additional conditions:
(1)The applicant reside at [Redacted] Cranbourne.
(2)The applicant not enter or attend the Greater City of Bendigo municipality including the towns of Mia Mia, Redesdale and Heathcote, except for the purpose of attending the Bendigo Court.
(3)The applicant not consume any alcoholic substance.
(4)The applicant report to Cranbourne Police Station daily between 9.00 am and 9.00 pm.
(5)Upon reporting at Cranbourne Police Station, the applicant submit to such breath alcohol tests as required by a member of Victoria Police.
(6)The applicant also undergo any preliminary breath test at any time he is required to do so by a member of Victoria Police.
(7)The applicant comply with all lawful directions of Mr Anthony Dieni or his nominee of St Paul’s Drug Prevention Rehabilitation and Aftercare Program.
(8)The applicant not approach or remain within 100 metres of Jennifer Tomisic.
(9)The applicant not contact or communicate with Ms Jennifer Tomisic or any other witness for the prosecution, apart from Cody Tomisic, except with the prior consent of the informant Detective Senior Constable Jason Smith.
The applicant should understand that if there is any breach at all by him of any of those conditions, then I would expect that his bail would be immediately revoked on any application made to the Court.
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