Douglas, Bail application
[2005] VSC 344
•30 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1534 of 2005
| IN THE MATTER of an Application for bail by MARK DOUGLAS |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 August 2005 | |
DATE OF RULING: | 30 August 2005 | |
CASE MAY BE CITED AS: | IMO bail application by Mark Douglas | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 344 | |
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CRIMINAL LAW – Application for bail – Youth – Repeat offending – Released on conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Atkinson | Office of Public Prosecutions |
| For the Applicant | Mr G. Meredith | Victoria Legal Aid |
HIS HONOUR:
This is an application by Mark Peter Douglas for bail. On 8 August 2005 the applicant appeared on bail before the Ballarat court. On that date he pleaded guilty to 8 counts of driving a motor vehicle whilst his authorisation to do so was suspended; one count of failing to wear a seatbelt; one count of driving at a speed in excess of the speed limit; 2 counts of driving an unregistered motor vehicle; one count of driving an unroadworthy motor vehicle; one count of stating a false name; and 3 counts of failing to answer bail.
A plea in mitigation of sentence was made to the Ballarat court. On the completion of the plea, the hearing was adjourned partheard to 11 August 2005. The magistrate ordered the preparation of a presentence report as to the eligibility of the applicant for detention at a youth training centre. The magistrate revoked the applicant's bail and remanded him in custody until 11 August 2005 for sentence.
In the meantime, on 8 August 2005 the applicant was charged with further offences of driving an unregistered vehicle; driving while his authorisation to do so was suspended; and using false licence plates.
On 11 August 2005 the offences alleged to have been committed on 8 August were adjourned for a contested hearing at Ballarat court on 5 September. I have been told that the matter will proceed as a contest, hopefully, on that date.
On 11 August the Ballarat court further remanded the applicant in custody for sentence on 6 September 2005 in respect of the charges to which he had pleaded guilty on 8 August.
The applicant has been detained in custody in the Melbourne Assessment Prison until last week. He is now detained in the youth unit at Port Phillip Prison.
The applicant was born on 30 September 2005 and is therefore 19 years and 11 months old.
On 19 November 2004 the applicant was convicted at Ballarat Magistrates' Court of driving while his authorisation to do so was suspended. That offence was committed on 11 August 2004. He was fined and his licence to drive a motor vehicle and motor bike was suspended for a period of 4 months from that date.
On 17 December 2004 the applicant was further convicted at Ballarat court on an offence of driving a vehicle while his authorisation to do so was suspended. The date of that offence was 24 August 2004. He was fined and his licence to drive a vehicle was suspended for a period of 3 months.
On 23 November 2004, just four days after his licence had been suspended, the applicant was intercepted by police while driving a vehicle and without wearing a seatbelt. He was charged with driving while his authorisation to do so was suspended and for driving while failing to wear a seatbelt. Subsequently, on 1 December and 5 December the police yet again intercepted the applicant while he was driving a vehicle during his period of suspension. He was charged with driving while his authorisation to do so was suspended on each of those two days.
On 24 December 2004 the applicant was again charged with driving while his authorisation to do so was suspended and with driving while the vehicle was not in compliance with the registered standard.
On 29 January 2005 and 23 February 2005 the applicant was again intercepted while driving during the period of suspension and charged in respect of both of those offences.
On 26 February 2005 the police again intercepted the applicant who was driving at a speed over the speed limit in an unregistered and unroadworthy vehicle. When questioned by the police, he provided a false name. He was duly charged with those offences.
On 8 March 2005 the police again intercepted the applicant driving an unregistered motor vehicle during his period of suspension and he was charged with those two offences.
As I stated, the applicant pleaded guilty to each of the foregoing charges when he appeared at the Ballarat court on 8 August. On most occasions when the applicant was intercepted by the police, he was unable to give a reason why he was driving during a period of suspension. When intercepted on 8 March 2005 and asked for his reason for driving whilst suspended, he replied, "I've got to get around".
When he was intercepted on 26 February 2005, he initially gave the police the name and date of birth of his brother Scott. However, inquiries by the police revealed that the licence of Scott Douglas was disqualified at that time and that Scott Douglas had five outstanding arrest warrants. When informed of those facts, the applicant then gave his correct name.
In addition to the previous convictions on 19 November and 17 December 2004, the applicant has also been convicted by the Ballarat Magistrates' Court on four separate occasions in 2005 for driving offences. On 22 March 2005 he was convicted of careless driving and failing to comply with the conditions of his licence. That offence occurred on 9 October 2004. He was fined and his licences were suspended for a period of six months. On 12 May 2005 he was convicted of driving on 3 March 2005 while his authorisation was suspended; driving an unregistered vehicle and exceeding the speed limit. He was fined and sentenced to a term of imprisonment for 2 months, that sentence being wholly suspended for a period of 12 months. On 18 June 2005 he was convicted of careless driving, failing to report an accident to the nearest police station and driving while his authorisation was suspended. That offence occurred on 14 August 2005. He was fined and his licence was suspended for 4 months. On the same day, that is, 18 June, he was further convicted with driving while his authorisation was suspended and careless driving. That offence occurred on 25 July 2004. His licences were suspended for two months and he was fined $700.
As I stated, it is alleged that on 8 August 2005 the applicant drove an unregistered vehicle while suspended and while using false licence plates. He was charged with that offence on that date. Those charges are contested by the applicant and have been adjourned for a hearing on 5 September. If they are found proven, they constitute a breach of the suspended sentence imposed by the Ballarat court on 12 May. The applicant also failed to answer his bail on 10 June 2005 in relation to the offences committed by him on 23 November, 1 December and 5 December 2004.
Mr Daniel McGlone, the solicitor for the applicant, has filed an affidavit in support of the application. That affidavit, and the submissions made before me by Mr Meredith who appeared for the applicant, set out the following bases on which the application is made. Firstly, the applicant is just 19 years of age and is at risk, while detained in an adult facility; secondly, the applicant has regular employment with a firm of panel beaters and if granted bail, will regain his employment there and will reside at his parents' address at Lydiard Street, Ballarat. The applicant's parents are supportive of him. His mother has filed an affidavit and the applicants' parents are happy for him to reside with them. Thirdly, if granted bail, the applicant will report to the Ballarat police station as required and will otherwise comply with the requirements of bail.
Until the applicant was remanded in custody, he was employed by Mr Richard Penhall who, with his wife, owns and manages a panelbeating business in Ballarat. The applicant commenced his apprenticeship with Mr Penhall in July 2003. He has satisfactorily completed all the requirements of his apprenticeship so far, including his schooling at the Gordon Institute at Geelong. Mr Penhall in his report states that he has endeavoured to counsel the applicant in relation to his offending and that indeed since he became aware that the applicant has lost his licence, he has attended at the applicant's house each morning, until he went into custody, to collect him for work and to drive him home in the evening. Mr Penhall is clearly impressed with the applicant as an employee and as a person. He describes him as “basically a good kid who comes from a loving and supporting family”. Mr Penhall has confidence that the applicant will complete his apprenticeship in due course and find for himself a career in the panelbeating business.
Section 4(1) of the Bail Act provides that any person accused of an offence and held in custody in relation to that offence shall be granted bail. However, s.4(2)(d) provides, nevertheless, that the court shall refuse bail if it is satisfied that there is an unacceptable risk either that the accused person, if released on bail, would fail to surrender himself into custody in order to answer his bail or if he would commit an offence while on bail. The burden of establishing either such risk lies on the respondent.
In this case it is submitted by Mr Atkinson, on behalf of the respondent, that there is an unacceptable risk that if the applicant is released on bail he would commit further offences, and further, if released on bail he would fail to surrender himself into custody to answer his bail. In support of that, the respondent relies on the applicant's extensive record of repeated offending by driving his vehicle whilst suspended. That record is quite extraordinary and clearly demonstrates that the applicant, at least until recent times, had a blatant disregard of the law, and indeed, it is fair to remark, a well nigh contempt for the law. Standing alone, that record certainly grounds a wellfounded fear that if the applicant were released by me today, that he would similarly resume his old ways and resort to illegal use of a motor vehicle. In addition, the respondent relies upon the applicant's failure to attend and answer his bail, for which he has already pleaded guilty, as raising a risk that the applicant, if released by me, would not answer his bail on 5 September. That fear, it would seem to me, is well founded, particularly based on the applicant's contempt and disregard for his legal obligations in relation to complying with the law generally.
In response, the applicant relies firstly on his basic lack of criminal history with one minor blemish. He has not breached the criminal law as such, although I do remark that the offences for which he has pleaded guilty are indeed serious. They are not simply to be described under the rubric of traffic offences, they go far beyond that. Secondly, the applicant relies on the fact that he has substantial support from his family and employer who would provide a level of assurance that he would attend court to answer his bail and that he would not reoffend. Thirdly, and perhaps most significantly, the applicant relies on the fact that he has now been in an adult custody facility for three weeks and that he has learnt a sharp lesson, and an unpleasant lesson, and has learnt that the law is not there to be disobeyed.
The applicant's record is, I must say, quite extraordinary. Without wishing to preempt in any way by these remarks what the magistrate's sentence will be, or his attitude to that sentence, on 6 September, for my purposes it seems quite clear that, standing alone and if not offset by any other factors, that record would truly create an unacceptable risk of reoffending if the applicant were released on bail. The difficult question for me is whether that risk is suitably offset by the matters put forward so competently in submissions by Mr Meredith.
This is a matter which has given me great cause for concern. It is very tempting at this stage simply to rely on the record of the applicant as indicating that he is an unacceptable risk and as investing me with really no confidence that he will obey the law if he is now released. On the other hand, I am impressed by the fact that the applicant is, by and large, not a person of criminal background; that he has been exposed to circumstances which must surely have revealed to him a very sharp lesson as to what happens to those who think that the law is not there to be obeyed. It is most unfortunate that the applicant has found himself in the circumstances in which he has. He is a young man with a bright and promising future but, nonetheless, one which, for his own reasons (which I must say I find are hard to understand) he has chosen to blight by his own foolish conduct. It is not for me at this stage to say or do anything which might reflect the sentence which might ultimately be imposed on the applicant; rather, my task is to assess the risk.
I have hesitation on this matter. However bearing in mind the matters that have been put to me and particularly bearing in mind two factors, firstly the fact that the applicant surely has learned his lesson by now and, secondly, the fact that the applicant, if released by me, would not have access to any vehicles at his home, whilst I do consider that there is some risk, I do not regard it that there is an unacceptable risk that he will reoffend if released on bail today. That leaves the other risk, that is, the risk of not attending to answer his bail if I released him. That risk is not fanciful; the question is whether it is unacceptable. However, I am persuaded by the fact that the applicant is a local person, he has his employment and his family locally; that hopefully by now he sufficiently understands the grave consequences of failing to attend on bail and the fact that that is an offence which, sooner or later, and usually sooner, catches up with a person. Each of those matters put together ultimately persuade me that there is not an unacceptable risk that if I release the applicant today that he will not answer his bail. Bearing those matters in mind, and I must say with some hesitation, I am prepared to accede to this application to grant bail. I do, however, warn you in the strongest possible terms, Mr Douglas, that if there is the slightest breach by you of your bail, do not think there will be any second chance or any tolerance of it at all by this court or by the Magistrates' Court. You have been extremely foolish and as you leave the court today you are a very fortunate young man. The future is in your hands. Nonetheless, I am prepared, reluctantly, to grant bail. I do so on the following conditions:
(a)that the applicant report to Ballarat police station every Monday, Wednesday, Friday and Saturday between the hours of 6.00 am and 8.00 pm;
(b)that the applicant does not drive a motor vehicle;
(c)that the applicant resides with his parents; and
(d)that the applicant remains at home between the hours of 9.00 pm and 5.30 am.
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