Bail Application - Bunning
[2013] VSC 681
•4 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0195 of 2013
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Mathew James Bunning |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Bail Application - Bunning | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 681 | |
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CRIMINAL LAW – Application for bail – Charges of Medicare fraud committed while on bail for indictable offences – Show cause
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Applicant in person | |
| For the Respondent | Inspector Koo |
HIS HONOUR:
The applicant, Mathew James Bunning, has been charged with 146 counts involving frauds committed on Medicare between 6 January 2011 and 4 August 2013. On 18 October he unsuccessfully applied for bail to the Magistrates’ Court at Heidelberg. He now applies to this court for bail.
As 104 of the offences charged against the applicant were alleged to have been committed whilst he was already on bail, he is required under s 4(4)(c) of the Bail Act1977 to show cause why his detention in custody is not justified.
It is necessary to refer in a little detail to the various charges that are outstanding against the applicant.
On 5 June 2012, the applicant was charged with two offences of possessing a drug of dependence pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act1981.
Subsequently, on 9 May 2013, the applicant was charged with a series of offences including four charges of obtaining property by deception, one charge of attempting to obtain property by deception, two charges of making a false document, one charge of negligently dealing with the proceeds of crime, two charges of possession of a drug of dependence, one charge of using a drug of dependence and one charge of stating a false name and address. The applicant was bailed by the police with a condition that he surrender his Australian and Irish passports and he entered an undertaking to appear at the Heidelberg Magistrates’ Court on 1 October.
On the same day, 9 May, a number of documents were seized from the applicant’s home at Yallambie, indicating that he was involved in a series of frauds committed on Medicare. He was interviewed in relation to those matters on that day by Medicare investigators, but at that stage no charges in that respect were laid against him.
Six days later, on 15 May, the applicant was charged with two further offences of obtaining property by deception. The amounts of property involved in each charge were respectively $100 and $400. The applicant was granted bail in relation to those additional charges.
On 4 August 2013, the informant, Detective Sergeant Flannery, having received information from Medicare investigators, attended the applicant’s address at Yallambie and arrested him. In the course of the search conducted at his premises, a number of exhibits and other documentation were located which, it is alleged, implicate him in a number of offences involving the deception of Medicare.
The applicant was interviewed and made detailed admissions. He was then charged with the following offences: ten charges of obtaining a financial advantage by deception pursuant to s 134.2 of the Commonwealth Criminal Code Act 1995; 53 charges of making a false document pursuant to s 83(a)(1) of the Crimes Act 1958; 51 charges of attempting to obtain a financial advantage by deception pursuant to s 11.1 of the Criminal Code Act and one charge of negligently dealing with the proceeds of crime pursuant to s 194(4) of the Crimes Act.
Each of those offences are alleged to have been committed by the applicant on or after 9 May 2013. The applicant was remanded in custody in respect of those charges.
Subsequently, the applicant was further charged with the following offences: 13 charges of obtaining a financial advantage by deception pursuant to s 134.2 of the Criminal Code Act; 13 charges of making a false document pursuant to s 83(a)(1) of the Crimes Act; and six charges of attempting to obtain a financial advantage by deception pursuant to s 11.1 of the Criminal Code Act. Those charges involved offences alleged to have been committed by the applicant between 6 January 2011 and 9 May 2013.
The summary of the charges prepared by the informant reveals that the applicant adopted a consistent modus operandi in committing the offences with which he is charged.
It is alleged that on or shortly before 6 January 2011, the applicant commenced to attend at Medicare branch offices throughout the Melbourne metropolitan area. He searched the rubbish bins of those premises and recovered from them discarded Medicare slips which contained personal information relating to claims made on Medicare. The applicant also attended Medicare branch offices to obtain blank forms. He took those slips to his home address at Yallambie where he used the information contained in the discarded Medicare slips to make a number of false documents on his computer. It is alleged that the slips which he produced were exceptionally high quality forgeries.
From January until June 2011, the false documents produced by the applicant purported to represent receipts from medical practitioners for payment received by them for medical services given to the applicant. The applicant then filled out a Medicare claim form which he signed as being true and correct and which he took, together with the false documents he had made, to a Medicare branch office. There he would submit the claim, together with the false documents, and thereby obtain payments from Medicare.
It is alleged that from July 2011 the applicant continued to attend and search the bins near Medicare offices for Medicare slips discarded by members of the public. The applicant would then use the information on those slips to make up further false documents purporting to be receipts for payments made by members of the public for services provided by medical practitioners. The applicant would then fill out a claim form using the name and Medicare details of a member of the public. He also included in each claim form bank account details for accounts that he operated so that any money to be paid by Medicare in respect of those fraudulent claims could be accessed by him. The applicant used a total of 46 different bank accounts with various banking institutions that he could access to assist in concealing the fact that he was committing a large number of deceptions and obtaining large amounts of money from Medicare in that way.
The claims submitted by the applicant related to over 70 different identities and were sent either by post or left at a Medicare branch office in the drop box for processing at a later date. A substantial amount of protracted police inquiry was required over a lengthy period of time before the applicant was identified as being involved in the offences.
The alleged offending by the applicant involved the production by him of 2,624 false documents, 1,115 of which were produced on or after 10 May 2013. The offending involved 348 attempted claims on Medicare, 200 of which were made after 10 May 2013. The total value of the attempted claims made by the applicant on Medicare was $127,548.66 and the total value of the attempted claims after 10 May 2013 was $70,745.51. The total value of the claims actually paid by Medicare was $98,342.20, of which $6,092.40 was paid in respect of claims made after 10 May 2013.
The applicant is 46 years of age. Between 1989 and 2005 he was a member of Victoria Police. He has some previous convictions. In particular, in November 2005 he was convicted at the Melbourne Magistrates’ Court on a number of charges including operating an account under a false name, knowingly dealing with the proceeds of crime and drug offences. In October 2006, he was convicted in the County Court and sentenced on ten charges of misconduct as a public official, two charges of theft and one charge of possessing a drug of dependence. He was sentenced to a total term of imprisonment of six years and ten months with a minimum non‑parole period of three years. On appeal, the head sentence was reduced to five years.
As I stated, the applicant must show cause why his detention in custody is not justified. The principal circumstances relied on by the applicant in his affidavit relate to his health and to the fact that he is now in remission from an opiate addiction which played an important role in his offending.
In August 1995, the applicant sustained severe neck and lower back injuries while effecting an arrest in the course of his duties as a senior constable of police. The medical practitioner who he consulted overprescribed opiates, including morphine, which resulted in the applicant acquiring an addiction to that substance. In his affidavit the applicant states that his previous convictions to which I have just referred were all committed while he was affected by very high doses of morphine.
Throughout the term of his imprisonment imposed on him in November 2005, he tested negative to all drugs. After he was released on parole, he underwent an operation to his cervical spine. During his recovery from surgery, he was prescribed Endone. As a result, he again became addicted to the use of opiates. In his affidavit he states he committed some of the offences with which he has been charged while he was addicted to what he describes as “near fatal doses of morphine”.
The applicant states that before his arrest on 4 August 2013, he was able to walk and even jog. While he was in custody at the Heidelberg police cells, he says that he withdrew from the morphine tablets that he had been using. As a result, he suffered episodes of fainting. He claims he has suffered further such episodes after his subsequent transfer to the Melbourne Custody Centre and from there to the Melbourne Assessment Prison.
In his affidavit, he states that Dr Mosa, a medical practitioner employed by Corrections Victoria, has provided a medical report that confirms that he has a serious injury and that a CT scan shows significant damage to his L3/L4 level that was not present before 4 August 2013 and that unless a spinal operation is undertaken in a timely manner, the applicant might suffer further permanent spinal damage. Unfortunately, the applicant has not been able to produce that report of Dr Mosa on this application.
In addition, the applicant states that because he was previously a member of Victoria Police Force, he is now required to be kept in protective custody in prison. He has been told that he would not be able to be moved to the hospital at Port Phillip Prison because, while he was a member of the police force, he was involved in an investigation into drug trafficking by officers of the prison.
He claims that his safety is at risk due to death and other threats made by other prisoners while he has been in custody. As a result, some of his time in custody has been spent in solitary confinement. Corrections Victoria medical service has provided him with a wheelchair and walking frame and he says he is unable to walk unaided by either of those two devices.
In addition, the applicant states that he is now free from all opiate medication. He states in his affidavit that he fully appreciates that he can never take opiates again and that he will seek alternative medications and therapies if his medical condition requires him to use strong analgesic medication.
In his affidavit, the applicant states that he will plead guilty to all the offences he has committed, but not guilty to those which he claims he did not commit. He also states he is prepared to repay the money which he has defrauded and he has commenced to do so. Indeed, it would appear that he has paid a little over $8 in that respect.
If he is granted bail, the applicant proposes to live with his parents and wife in his parents’ home in Glen Waverley. I note that the applicant’s parents and wife are all in court to support him today. In addition, the applicant has had gainful employment in the past; indeed, he was employed for a period of two months or so leading up to March 2013.
Finally, in his affidavit, the applicant refers to the fact that on 9 October 2013, a bail application was scheduled to be held at the Heidelberg Magistrates’ Court but the authorities failed to transport him to court on that day.
The application was adjourned to 18 October when again the authorities failed to convey him to court. His application for bail on that day was apparently heard in his absence.
The respondent, for whom Inspector Koo appears, opposes the application for bail principally on the basis that there is an unacceptable risk of the applicant committing further offences if he is granted bail. In his affidavit in response, the informant notes that the applicant currently is, and has been for some time, unemployed. He has no fixed place of abode. When he was last released on bail on 9 May 2013, he continued committing the same offences until his arrest on 4 August.
In addition, a number of the charges against the applicant involve offences that are alleged to have been committed by him while he was on parole between 21 September 2009 and 20 September 2011. In particular, as I have noted, the offending regarding the deceptions on Medicare is alleged to have commenced on 6 January 2011 and to have continued thereafter.
The respondent also raises a concern that if the applicant were released on bail he might pose a flight risk. It is noted that his wife comes from China and that she has family in China.
In my view, that risk is not of sufficient concern to stand in the way of a grant of bail if I otherwise considered it would be appropriate to grant the applicant bail. The risk adverted to by the respondent could be adequately catered for by an appropriate condition that the applicant forfeit his passport pending the outcome of the case.
The appropriate approach to an application for bail where the applicant is required to show cause has been described by Maxwell P in Re Fred Joseph Asmar.[1] Such an application involves the court in addressing one question, namely whether the applicant has satisfied the court that his detention in custody is not justified.
[1][2005] VSC 487.
In considering that question, the court should have regard to the four unacceptable risk issues that are identified in s 4(2)(d) of the Act. As Maxwell P stated at paragraph 13 in Asmar, those risks must be at the forefront of the court’s consideration of the justification for the applicant’s continued detention.
Thus, in this case, in order that I be satisfied that the applicant’s detention in custody is not justified, I consider that I must be first satisfied that there is no unacceptable risk that the applicant will reoffend if he is to be released on bail. In adopting that approach, of course, I do not ignore the other matters that have been relied upon by the applicant.
The critical question then is whether the applicant has established there is no unacceptable risk that he will reoffend if he is relied on bail. There is always a risk that an applicant for bail might reoffend if released on bail. The question is whether the applicant has persuaded me that that risk is not unacceptable.
The principal basis upon which the applicant relies in support of such a contention is that he is now free from any addiction to opiates. He has not been able to produce any evidence in support of that proposition but I am prepared for the purposes of this application to accept what the applicant says in that regard. That factor is an important circumstance in measuring the degree of risk involved should I grant bail to the applicant.
On the other hand, I consider that there are weighty considerations, each of which give substantial reason to be concerned that if the applicant were released on bail, he might reoffend. First and foremost, it must be borne in mind that the applicant was on bail and also on parole when some of the offences with which he has been charged were allegedly committed. That circumstance is important because it demonstrates that the applicant was not deterred from offending by the fact that he was then released from custody, a condition of that release being that he not offend in the meantime. The applicant, as a former member of Victoria Police, would have well understood that any offending by him while on parole, and also while on bail, would potentially lead to the revocation of his right to remain at liberty. Thus, I can have no assurance that if I were to release the applicant on bail, he would be deterred by the conditions of his bail from reoffending.
That consideration is of even greater moment because it must be borne in mind that the applicant continued to offend on a reasonably substantial scale, notwithstanding that he had been spoken to and interviewed by Medicare investigators on 9 May. Indeed, as I understand it, he continued to perpetrate the same offences within 48 hours of being spoken to by the Medicare investigators.
In addition to that, the offending alleged against the applicant involved a significant degree of planning and premeditation. The alleged offending was systematic and was difficult to detect. In that way, the alleged offending demonstrated that the applicant was a person who was prepared to run the risk of breaching the terms of his release both on parole and on bail.
As I have noted, the applicant relies substantially on the fact that when he offended, he was subject to a morphine addiction of which he is now free. The applicant’s addiction to opiates may have impaired his judgement and, in addition, created a need for him to obtain funds with which to purchase his drugs. However, it must be borne in mind that the method by which he carried out his offending involved the production of a large amount of documents, a degree of skill and acumen and a large amount of work and activity on his behalf. Notwithstanding his addiction at the time, the applicant proved well capable of undertaking a sustained enterprise of defrauding Medicare.
While I accept that the applicant is now free from morphine addiction, nevertheless, on the materials available to me, it is difficult to conclude that that fact alone will provide a sufficient degree of assurance that he would not reoffend if he were granted bail.
In that context, I note that the applicant in his affidavit states that when he offended, he was taking extremely high doses of morphine and that it appears that his addiction continued until his arrest and detention in custody in August 2003.
The applicant’s affidavit reveals that over the last eight years or so, he has been subject to two periods of substantial addiction to opiates. In the absence of supporting material concerning his remission from that addiction, there is, I consider, a risk that the applicant, unless properly supervised, might succumb again to addiction. In saying that, I readily acknowledge that both episodes of the applicant’s prior addiction to opiates was due to the analgesia prescribed to him for his medical condition. Nevertheless, they were significant episodes and they do, as I say, add to my assessment of the risk of reoffending should the applicant be released on bail.
Finally, if I were to release the applicant on bail, it would be difficult to devise any suitable condition that would materially reduce the likelihood or practicability of the applicant resorting to reoffending of the type with which he has been charged. A condition that the applicant not attend at any Medicare office could not be realistically enforced.
The applicant has offered to undergo drug testing for which he would pay. However, there seem to me to be a number of practical difficulties associated with that. Firstly, it is not clear how he could afford to fund those drug tests; secondly, it would seem to me that the drug tests would be of little assurance unless they were undertaken on a random basis, which would be difficult to supervise; thirdly, as I have noted in any event, whilst I accept that the applicant’s addiction played a prominent role in his offending, I do not at this stage have an assurance that it was solely to blame.
Taken together, in my view, the matters to which I have just referred necessitate the conclusion that the applicant has not made out that if he was released on bail he would not be an unacceptable risk of reoffending. Indeed, in light of those matters, I am persuaded to the contrary.
I do reach that conclusion with regret. First, I acknowledge that the applicant does suffer pain and disability with his back and that he would have better access to appropriate medical treatment if he were released on bail. Secondly, because of his position as a former member of the police force, the applicant’s time in custody is significantly more onerous because he is required to be kept, at least for some time, in protective custody. Thirdly and importantly, I note that on two previous occasions, those responsible for the applicant’s custody have failed to ensure that he has been transported to court so that he could be present for the bail application that he wished to make. I also note that it appears that there was a failure to transport him to court on 14 November to attend a mention hearing.
Such a failure is a matter of grave concern. The applicant had a legal right to be at court in order to be able to pursue his application for bail in the Magistrates’ Court. Such a right is fundamental to his position as an accused person who is being held in custody. It was the duty of those responsible for his custody and transport to ensure that the applicant be conveyed to court. The authorities did not have any discretion in that regard. It was their obligation to ensure that the applicant be present at court.
In my view, it is entirely unacceptable that when an accused person is held in custody pending the hearing and determination of the charges against him, that person is not brought to court to deal with a relevant aspect of the criminal process. The continued detention of the accused man in custody before the charges against him are heard involves a significant detraction of his right as a citizen to be at liberty. The right of an accused person to apply for bail is an important process which ensures that the accused is not held in custody without proper cause. It is for that reason that I view with considerable concern the fact that the applicant apparently was not conveyed to court on two occasions when he applied to the Heidelberg Magistrates’ Court for bail.
However, notwithstanding those considerations, for the reasons I have already outlined, I consider that if I were to release the applicant on bail at this stage there would be an unacceptable risk that he would reoffend. That risk is of sufficient dimension to outweigh the three matters to which I have just referred.
In those circumstances, the applicant has not shown cause why his continued detention in custody is not justified. It follows that the application for bail must be refused.
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