Director of Public Prosecutions v Spiteri
[2016] VSC 335
•8 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0029
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| STEPHEN JAKE SPITERI | Respondent |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 March 2016 |
DATE OF JUDGMENT: | 8 April 2016 |
CASE MAY BE CITED AS: | DPP v Spiteri |
MEDIUM NEUTRAL CITATION: | [2016] VSC 335 |
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CRIMINAL LAW – Director’s appeal from grant of bail – Aggravated burglary involving firearm – Respondent in ‘show cause’ position – Bail Act 1977 s 4(4)(c) – Primary Magistrate did not mention ‘show cause’ in reasons – Whether failure to do was an error – Fernandez v DPP (2001) 5 VR 374 – Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hevey | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr D Dann QC with Mr B Johnston | Balmer and Associates |
HIS HONOUR:
Background
The facts of the alleged offence may be stated briefly. On 12 February 2016 the respondent and his two co-accused were involved in an aggravated burglary at 8 Waddywood Court, Truganina. They had their faces covered and were wearing gloves. The object of the burglary appeared to be to steal a hydroponic cannabis crop. The motor vehicle the men had used contained devices for the possible detection of cannabis crops. The three men threatened the single occupant of the house and stole various items belonging to him.
The police came in response to a 000 call. When the police arrived the two co-accused escaped from the premises but were apprehended a short distance away. The respondent was confronted by Senior Constable Fox who noticed something in the respondent’s hand. It was a handgun and Senior Constable Fox says that the respondent raised it and pointed it at him but that after a short pause the respondent dropped the handgun. It was a fully loaded Browning 9mm Hi-Power semi-automatic handgun ready to be fired. The gun had been stolen in a burglary in September 2014. A similar fully loaded handgun was found in the premises.
The respondent was born on 15 June 1991. His recent prior convictions involve a number of charges arising out of a police pursuit in a motorcar in April 2014. In May 2014 he was involved in a police chase on foot. When arrested he was armed with a handgun (a revolver). He was released on bail which included a curfew condition.
In October 2014 he was arrested in possession of illicit drugs and .22 calibre semi-automatic handgun. He was in breach of his curfew condition. All these matters were dealt with in September and November 2014. He was sentenced to a term of imprisonment, effectively for 9 months, and placed on a Community Correction Order (“CCO”) for 18 months as of 7 September 2015. The respondent appealed all the sentences but abandoned the appeals. He was released on 6 September 2015 and was on the CCO at the time of his arrest.
On 16 March 2016 the respondent was granted bail in the Melbourne Magistrates’ Court. Bail was granted on the following conditions:
a.Report to Sunshine Police station daily between 6am and 9pm.
b.Reside at 11 Godfrey Avenue Sunshine North.
c.Surrender any valid passports or any other valid travel documents held within 24 hours of release to the informant and do not apply for any other.
d.Not attend any points of international departure.
e.Not to leave Australia.
f.Not to leave the State of Victoria.
g.Not contact witnesses for the prosecution other than the informant.
h.Not to associate with any co-accused.
i.Not to leave place of residence between the hours of 9:00pm and 5:00am except in the company of Mr Charlie or Mrs Mary SPITERI.
j.To comply with all requirements of the Court Integrated Services program.
k.To present at the front door of residence during curfew hours upon request of any member of Victoria police.
l.Not to use drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 without lawful authorisation under that Act.
On 17 March 2016 the Director of Public Prosecutions (“the Director”) appealed against the grant of bail on the following grounds:
1.THAT the learned Magistrate in proceeding to grant bail to the Respondent erred in finding, pursuant to s 4(4)(c) of the Bail Act 1977 that cause had been shown.
2.THAT the learned Magistrate in proceeding to grant bail to the Respondent erred in finding pursuant to s 4(2)(d) of the Bail Act 1977 that the Respondent was not an “unacceptable risk” in all the circumstances.
3.THAT in granting bail to the Respondent the learned Magistrate gave undue weight to:
(a)the occurrence of a manifest delay;
(b)the Applicant’s stable residence and family support.
4.THAT in granting bail to the Respondent, the learned Magistrate failed to accord sufficient weight to:
(a)the risk that the Respondent will commit further offences if granted bail;
(b)the risk that the Respondent will fail to appear in answer to his bail;
(c)the strength of the prosecution case;
(d)the attitude of the complainant towards the application for bail;
(f)the combined effect of the above factors.
The application came on for hearing before me on 31 March 2016 and on 8 April 2016 I dismissed the appeal. On that date I said I would publish reasons for that decision and these are those reasons.
At the hearing on 31 March 2016, application was made to amend the grounds of appeal. That amendment was as follows:
1.THAT the learned Magistrate in proceeding to grant bail to the Respondent erred in her decision in that she failed to address in her reasons any reference to whether the Respondent had shown cause as required by s 4(4)(c) of the Bail Act 1977.
1A.THAT the learned Magistrate in proceeding to grant bail to the Respondent erred in finding pursuant to s 4(4)(c) of the Bail Act 1977, if she in fact did so, that cause had been shown.
I would allow that amendment.
In her reasons the learned Magistrate said:[1]
[1]Transcript of Proceedings, DPP v Spiteri (Unreported, Magistrates’ Court of Victoria at Melbourne, Magistrate Aumair, 16 March 2016) 27.
HER HONOUR: No doubt this is extremely serious offending and the Crown case appears to be very strong. I accept from Ms Moran, carrying a loaded firearm and pointing is at a police officer there can be not a lot more serious offences involving firearms. I have however granted bail to your two co-accused who are older than you, who have more significant priors than you. Your father came to court today to give very, very impressive evidence and you need to be very grateful for that. With reservations I’m going to grant you bail today, but there are going to be extreme (indistinct) if you fail to comply with one condition of this bail you will find yourself back in custody. Do you understand that?
ACCUSED: Yes, Your Honour.
HER HONOUR: (indistinct) today based on a number of things; based on the potential for delay (indistinct) based on your age and your family (indistinct) and I consider you to be a risk, Mr Spiteri, but with strict conditions I will concede that the risk is acceptable, but you need to show the court and the community that the faith I’m going to (indistinct) is well founded. Do you understand?
It is true to say that her Honour did not make mention of ‘show cause’ in these reasons. On the other hand, there can be little doubt that her Honour was aware that the respondent was in a show cause position. She did not make any mention of ‘show cause’ in the order granting bail although she was obliged to do so.
Section 4 of the Bail Act 1977 (‘the Act’) provides relevantly for present purposes:
(4)Where the accused is charged—
…
(c)with an offence of aggravated burglary under section 77 of the Crimes Act 1958 or any other indictable offence in the course of committing which the accused or any person who is involved in the commission of the offence is alleged to have used or threatened to use a firearm, offensive weapon, or explosive within the meaning of the said section 77;
…
the court shall refuse bail unless the accused shows cause why his detention in custody is not justified and in any such case where the court grants bail the court—
(i)if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order; …
Those provisions are not to be taken lightly and her Honour ought to have included in the order a statement of reasons for making the order. It might have sufficed if she had dealt with the matter in her brief oral reasons. The failure of her Honour to deal appropriately with the matter constitutes error and those provisions of the Act ought to be dealt with punctiliously. The question is whether the failure to have observed the provision would in this case lead to a successful appeal.
I am satisfied that the learned magistrate did understand that the respondent was in a show cause position and accepted that, for the reasons she stated, the respondent had shown cause. This is underlined by virtue of the fact that she did deal with the question of unacceptable risk.
The approach to appeal of this kind was first dealt with in Beljajev v DPP.[2] That approach was approved by the Court of Appeal, sitting as a bench of five, in Fernandez v DPP[3] where Winneke P (with whom Charles, Batt, Buchanan and Vincent JJA agreed) said:[4]
The principles which the Court applies are well known and were authoritatively stated by the Full Court in R v Taylor & O’Meally. It is clear from these authorities—as the Court noted in Beljajev—that the principles which the Court applies in deciding a ‘Director’s appeal’ against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the Director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the Court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the Director pursuant to s 18A of the Bail Act. However, as was pointed out by the court in Beljajev, the appeal which is brought to the court by virtue of s 18A is an appeal against orders made ‘in a matter of practice and procedure’, and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders.
[2](Unreported, Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) [9]–[11].
[3](2001) 5 VR 374.
[4]Ibid [31] (citations omitted).
I would dismiss that ground of appeal.
I observed when dismissing the appeal that I doubted that I would have granted bail at first instance. I was concerned that the learned magistrate had given too much weight to the question of parity. I do not think that the question of parity directly arose in this case in the way that her Honour regarded it.
There is no doubt in my mind that the respondent, both on the question of his alleged conduct and the relevance of his prior convictions, was not in a comparable position to his co-accused.[5]
[5]See Gray v DPP [2008] VSC 4.
Contrary to the way that the case was put to her Honour below the cases were quite distinguishable and ought to be been distinguished.
There was, however, no ground of appeal complaining about the weight given to the question of parity although it was argued in the written case of the applicant. It would be difficult, if not impossible, for the Director to succeed on the basis of error as to parity since it is not a ground and cannot be brought with the grounds as drafted.
As to the remaining grounds, her Honour was entitled to give weight to the question of delay and the question of family support. The family support was clear and if the respondent wants to run his trial on the basis that he did not deliberately point the firearm at Senior Constable Fox, it will mean a very significant delay. Her Honour was entitled to come to the conclusion that the risks which the respondent represented could be sufficiently ameliorated by the imposition of strict conditions. That was particularly so given the positive CISP report.
As I have said, I probably would not have reached the same conclusion. I do not, however, regard the material as sufficiently clear to vitiate the grant of bail below.
I would dismiss the other grounds of appeal.
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