DPP and Gates

[2020] VCC 2098

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-19-02302

DPP

v

Stephen Gates

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JUDGE:	Her Honour Judge Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2020
DATE OF JUDGMENT:	10 February 2020
CASE MAY BE CITED AS:	DPP and Gates
MEDIUM NEUTRAL CITATION:	[2020] VCC 2098

REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW

Catchwords:              Application for bail – Compelling reasons – Unacceptable risk – Strong Crown circumstantial case

Legislation Cited: Bail Act 1977 (Vic)

Cases Cited:Ceylan [2018] VSC 361

Judgment:                  Application for bail refused

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. O’Toole	Solicitor for Public Prosecutions
For the Accused	Ms J. Clark	Kurnai Legal Practice

HER HONOUR:

1.This is a judgment in respect of an application for bail made by Mr Gates, who is pleading not guilty to Armed Robbery and Theft, but the Crown have indicated that they may revive further charges against him which had been withdrawn at the committal stage after the matter had been resolved into pleas of guilty.

2.Mr Gates had entered pleas of guilty to Armed Robbery and Theft on 18 November last year at a partly heard contested committal hearing, following resolution discussions between his Counsel, Mr Pat Casey and the Prosecution.

3.The matter was listed for a directions hearing in this Court on 4 December 2019, with a view to the plea hearing taking place in the Koori Court. However, prior to that day, Mr Gates indicated that he now wished to plead not guilty, and the matter was listed in March of this year for a change of plea hearing. However, as he had not been arraigned in this Court, it is accepted that such a proceeding is not necessary, and he is entitled to have a trial as of right.

4.Mr Gates was arrested and remanded on 5 June 2019, and therefore, he has been in custody for about 8 months.  Inquiries from Criminal Listings revealed that Mr Gates’ trial would likely be heard in May next year, although an earlier listing might be possible.

5.It is alleged that Mr Gates committed the Armed Robbery with a Terry Lee Jones. Mr Jones has since pleaded guilty to the offence and was sentenced to 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment. Of course, Mr Jones’ plea of guilty is not evidence that can be used against Mr Gates.

6.Armed Robbery is a Schedule 2 offence within the meaning of s.3 Bail Act 1977 (hereafter “The Act”). Pursuant to s.4(4) of the Act, the Court must refuse bail unless the Applicant shows “compelling reason why (his) detention in custody is not justified.”

7.If Mr Gates demonstrates compelling reasons as to why his detention is not justified, the onus is on the Prosecution to show that Mr Gates is an unacceptable risk in respect of any of the matters set out in s.4E of the Act.

The alleged offending-Theft on 27 Nov 2018

8.It is alleged that Mr Gates and an unknown male went to the Waterloo Hotel, Maribyrnong at about 1.20pm on 27 November 2018 in a silver Nissan Pulsar (subsequently reported stolen on 30 November) with false number plates-SAQ446, which had previously been stolen between 24 and 27 November 2018.

9.Mr Gates is captured on CCTV walking out of the bottle shop cool room with 2 cartons of Wild Turkey bourbon cans and getting into the silver Pulsar which is in the drive through area, and driving off without paying. Mr Gates is wearing a white T-Shirt with a distinctive black motif on it, and is sporting a beard and moustache. He also has a black and white bandana around his neck.

Day of the armed robbery-28 November 2018.

10.Telstra phone records reveal that at 7.06pm the next day, the phones of, or phone numbers subscribed to by Mr Gates and his alleged co-offender, Terry Lee Jones are both bouncing off the mobile phone cell tower at Wallan. Police allege that they were together at this time.

11.At 7.29pm, a witness, Mr Mesourouni, who was in his car, observed two males in a silver Pulsar in Yale Drive, a dead end street in Epping, changing their clothes and putting masks on their faces.

12.As this car drove alongside this witness, the male passenger pointed to the witness’ car which had business signage on it which the witness took to mean that they knew where he worked and not to call the police.

13.At about 7.30pm, another witness, Mr Moloney, who was driving in Yale Drive, saw a silver Pulsar and Mr Mesourouni’s car stationary in the middle of the road. He drove up behind Mr Mesourouni’s car as the Pulsar was blocking the other side of the road. The pulsar then reversed into Mr Moloney’s car, colliding with it, and drove off. Mr Moloney observed the Pulsar to have significant damage to the rear left side as a result of the collision. This incident was also captured on CCTV.

14.Phone records reveal that the phone of Mr Jones was communicating with the Epping mobile phone cell tower at 7.31 pm and that the phone of Mr Gates was bouncing off the Bundoora/Latrobe mobile cell tower at 7.41pm.

15.At about 7.45pm, a Ms Bassett saw a silver pulsar drive into her driveway in a street in Epping, and she saw a male get out of the passenger seat and replace the registration plates on the car. The car then reversed out of the driveway and parked outside this witness’ address.  She took some photos of the occupants of the car. The registration plates now affixed to the car were SAQ446 on the front and IDJ8VL on the back. Again these plates had been stolen in the days leading up to the armed robbery.

16.The photos show damage to the rear left corner of the car. They also show images of Mr Jones, who has a distinctive tattoo on his hand which is seen as he tries to shield his face from being photographed. Photos of the driver show a male with facial hair and a hoodie; police also say that he is seen to have a black and white bandana- this is not entirely clear in the photos that I have seen.

17.When the two occupants of the Pulsar realise they are being photographed, they take off.

18.Shortly thereafter a silver Pulsar which is damaged at the rear, and has two number plates, one on top of the other, is seen by various witnesses driving erratically and speeding in Mill Park and Reservoir.

19.At 8.09 Telstra records show that Mr Gates’ phone is bouncing off the Coburg East mobile phone cell tower. I understand that the location of this tower is fairly close to the Summerhill Hotel in Reservoir.

20.At about 8.09pm, it is alleged that Mr Jones and Mr Gates enter the Summerhill Hotel in Plenty Road, Reservoir . I understand that CCTV footage shows a silver Pulsar with registration plates SAQ446 on the front and 1DL8VL on the back. It has extensive damage to the back of it.

21.Mr Jones, and, it is alleged, Mr Gates enter the hotel and the gaming room and approach the cashiers’ desk which is being manned by people referred to in the summary as Garrido and Robertson. Each are carrying a weapon. It is alleged that Mr Gates has a ‘Karma’ sword and Mr Jones has a kitchen knife. They go through the cash drawers and steal $7,435 cash which they put in an enviro- bag which they had with them. As another employee made to move behind the cashier area, one of the offenders, allegedly Mr Gates yelled ‘You fuckin stay still’.

22.The offenders then exit the area and drive off in the silver Pulsar. The Armed Robbery is captured on CCTV- the clothing of each of the offenders is seen but nothing can be gleaned in terms of the offenders’ faces.

23.At 8.29pm phone records show that Mr Jones’ phone is bouncing off the Reservoir South and Preston West phone towers. At 9.09pm, his phone is bouncing off the Lonsdale/Russell St  tower and  at that time, Mr Gates’ phone is bouncing off a cell tower in Lt Bourke St.

24.On 29 November, Mr Gates was arrested for unrelated matters-a custody photo of him depicts him wearing the same distinctive T-Shirt that he was wearing at the bottle shop on the day before the Armed Robbery.

25.A silver Pulsar is found by police about a month later-on 28 December 2018 in a street in Coburg with extensive damage to the rear of it. Two items found in the car-a cigarette and a lighter were found to have DNA on them which strongly indicated that Mr Gates was a contributor.

26.Police have not recovered the clothing worn by the offenders who committed the armed robbery, nor have they found the weapon or the cash stolen.

27.The central issue at the trial will be whether the prosecution can prove beyond reasonable doubt that it was Mr Gates who committed the armed robbery on the day in question.

Mr Gates’ background

28.Mr Gates is 34 years old of Aboriginal background. He has a fairly solid criminal history dating back to 1999 in the Children’s Court, although he has no prior convictions for Armed Robbery or Robbery. However, he does have some prior matters for violence and dishonesty and I understand there are some subsequent offences alleged against him which are yet to be heard. I accept that his last substantive prior matter for violence is rather aged, with his last court appearances being in 2017 and in respect of offending committed a fairly good while before that.

29.I was told that his mother has taken out intervention orders against him in the past but that this was some time ago. She is prepared to have him stay with her if granted bail and was in Court in support of him.

30.Mr Gates has been in several relationships in the past, the most recent of which resulted in him becoming a father to a child who, sadly, died of asthma in November or December last year. He was given permission by Corrections to attend the funeral. I was told that, if granted bail, he had an appointment to attend grief counselling through the Victorian Aboriginal Health Service, although I understand that the appointment was for 7 February, which is now passed. However, I accept that if he were to be granted bail, another appointment would be made available to him.

31.In Mr Gates’ written application, which was prepared by his solicitors Kurnai Legal Practice, it is said that the grounds for the bail application are that Mr Gates is an Aboriginal person; that there will be delay in the hearing of the matter and that Mr Gates had accommodation and supports within the community.

32.The only oral evidence presented at the bail application was that of the informant, Mr Brown, who gave evidence about the way that the police put its case against the Applicant and his concerns as to the stability of the address proffered by Mr Gates mother in circumstances where she had previously obtained intervention orders against her son. Mr Brown also gave evidence of his attempts to find Mr Gates, with Gates’  partner, Ms Burdette telling him that he did not reside at her address. As against this, Ms Clarke, on behalf of Mr Gates, indicated that he was living at the address at that time. 

33.The prosecution tendered a map setting out the cell towers and various alleged events on the day of the Armed Robbery. They also tendered photos and a compilation of the various pieces of CCTV footage, as well as some police summaries in respect of some other offending or alleged offending and the statement of the forensic biologist.

34.No evidence was called by Defence on behalf of Mr Gates, although Ms Clarke cross-examined Mr Brown. The only written evidence tendered by Defence were some certificates in respect of courses done by Mr Gates whilst on remand including a course concerning relapse prevention. I also received a bundle of drug screens which were all negative.

35.Ms Clarke submitted that there were compelling reasons as to why Mr Gates ought be granted bail, principally relying on the following circumstances:

a.The need for Mr Gates to obtain appropriate counselling in the community in respect of the loss of his infant child in November or December last year. Although he was granted some leave from prison in order to attend the funeral, Ms Clark submitted that he has not had an opportunity to properly grieve his loss; that an appointment had been made for him to commence counselling through the Victorian Aboriginal Health Service to enable him to pursue culturally appropriate counselling. Ms Clarke, relying on s.3A of the Act submitted that I ought take into account Mr Gates’ Aboriginality in this context and the need for him to receive culturally appropriate counselling which would not be available in gaol.

b.That Mr Gates had already been in custody on remand for 8 months which was already the lengthiest period that he had been in gaol, and that there was the prospect of significant delay till his trial was heard- in the order of about two years, as presently advised.

c.That Mr Gates’ mother was willing to have him reside with her, notwithstanding some problems in their relationship in the past, and that Mr Gates was willing to abide by any stringent bail conditions that the Court saw fit to impose.

36.Mr O’Toole for the Crown submitted that the case against Mr Gates was a strong one, and that any time spent on remand pending trial would be, effectively a ‘down payment’ on the sentence that he would ultimately face, in circumstances where his alleged co-offender Mr Jones was previously sentenced to 5 years’ imprisonment with a non-parole period of 3 years in respect of a plea of guilty. He submitted that Mr Gates would be facing a higher sentence than this, if found guilty by a jury, such that delay of less than 2 years before his trial, although, perhaps inordinate, would likely not exceed any non-parole period he would face.

37.In support of his contention that the case against Mr Gates was a strong one, Mr O’Toole referred to four areas of evidence, as follows:

a.That at a contested committal hearing which was cut short due to resolution discussions, Mr Gates, who was represented by Mr Pat Casey of Counsel, entered a plea of guilty to the charge of armed robbery and associated charges. Therefore, he had admitted that he was the culprit and had admitted every element of the charges.

b.That there were strong links between the Applicant’s appearance, clothing and association with the silver Pulsar which was used in the armed robbery at times which were closely proximate to the offending.

c.The cell tower evidence which placed Mr Gates at locations shortly before and at the time that the armed robbery was committed, and which coincided with events leading up to the armed robbery such as the collision, and when the photos were taken by Ms Basset.

d.The DNA evidence which linked Mr Gates with the Pulsar car.

38.Mr O’Toole submitted that the Armed Robbery alleged against Mr Gates was brazen, committed in broad daylight; that there were a number of patrons at the hotel when the offence was committed, and that, on the Crown case, Mr Gates made a direct threat toward one of the victims. He added that there was evidence of premeditation.

39.He suggested that the real reason for Mr Gates’ change of plea was learning of his alleged co-offender’s sentence, and that any delay that he might experience had been largely of his own making, due to changing his plea, now wanting to proceed to trial. He said that the grief counselling appointment was not sufficient to justify the grant of bail and that there was no evidence before me of ongoing arrangements in this regard - merely a single appointment.

40.Mr O’Toole submitted that although Mr Gates did not have any prior convictions for Armed Robbery or Robbery, he had a number of prior matters for violence and he had also contravened Court orders in the past, referring to his breach of a suspended sentence in 2017. He referred to pending matters alleged against Mr Gates said to have been committed in October and between December 2018 and June 2019, submitting that Mr Gates had manifested a clear disregard for the law and victims involved.

41.Mr O’Toole submitted that the proposal that Mr Gates live with his mother was an unsatisfactory one, as the evidence revealed that in the past, his mother had taken out intervention orders against her son, so was clearly unable to properly monitor him, and there was also the prospect of him violently offending against her.

42.He submitted that even if I was satisfied that Mr Gates had demonstrated compelling reasons, which, he submitted, I ought not, that because of the Applicant’s criminal history, pending matters, his evasion of the police when he was likely aware that they were looking for him, and unsatisfactory proposed accommodation, that I ought find that he was an unacceptable risk of committing further offences, and of answering his bail. He said that in circumstances where the Armed Robbery had occurred in broad daylight, any curfew condition or police reporting condition would not serve to sufficiently mitigate against such risk.

43.In answer to the Prosecutions’ submissions in respect of the strength of the case, Ms Clarke conceded that it was not a weak one, but it was not watertight either. She referred to the circumstances in which Mr Gates pleas of guilty were entered in the Magistrates Court, making the point that Mr Gates’ solicitors were not present, and that it would be a matter in contention at trial as to whether the pleas of guilty would be admissible.

44.Ms Clarke also referred to the DNA evidence, noting that it was obtained about a month after the Armed Robbery and that there would be no evidence as to when or in what circumstances the relevant items got into the car. She also submitted that there was no evidence that Mr Gates was the subscriber to the phone or phone number attributed to him at the time that the Armed Robbery was committed.

45.Ms Clarke submitted that the various circumstances that she had referred to in support of an application for bail-principally the need for her client to properly grieve the loss of his child, amounted to compelling reasons, and that in view of the lack of criminal history in relation to Armed Robbery or Robbery, or recent findings of guilt in respect of offences for violence, and his mother’s offer of stable accommodation, with a preparedness to abide by stringent bail conditions, that he was not an unacceptable risk to commit further offences or answering bail.

The Law

46.The leading decision in respect of the meaning of ‘compelling reason’ for the purposes of s.4(4) of the Act is the case of Ceylan [2018] VSC 361 where His Honour Appeal Justice Beach having referred to the guiding principles set out in s.1B of the Act, and of which I am also most mindful, said at paragraphs [46] and [47]:

‘When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.

While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful and therefore convincing reason showing that in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary for an applicant required to show compelling reason, to show a reason which is irresistible or exceptional.”

Decision

47.In view of all the relevant circumstances in the present case, I am not satisfied that the Applicant has shown compelling reason why his detention is not justified. The case against Mr Gates is a very strong one in my view, comprising of some strong circumstantial evidence and his own admission that he was Mr Jones’ co-offender by virtue of his plea of guilty part way through a contested committal hearing. Taking the Crown case at its highest, the evidence of this plea of guilt would be admissible against Mr Gates, and there is nothing in the evidence placed before me which puts that evidence in a precarious position. He was represented by a highly experienced criminal barrister at the contested committal hearing, who commenced that hearing, cross-examining the forensic biologist. Subsequently, the matter resolved into a plea of guilty. While, Mr Gates solicitors might not have been present, he had the benefit of legal advice and on that advice, no doubt, chose to enter pleas of guilty. It’s hard to imagine stronger evidence that Mr Gates committed this offence than this.

48.Further, the police informant gave cogent evidence as to the subscriber of the phone number being Mr Gates’ number at the relevant time, as it had been in the not too distant past prior to the alleged offending. That phone number is observed to be bouncing off cell towers, together with that of Mr Jones, at times and places which coincide with events leading up to the armed robbery and at the time of it. The silver Pulsar was driven by the Applicant on the day before the Armed Robbery when he is seen to be stealing the alcohol from another hotel, and the photo taken by Ms Bassett on the day of the Armed Robbery, after the collision, depicts a male with facial hair and similar appearance to the Applicant in the driver’s seat. At about the time of this and the collision itself Mr Gates’ phone number is bouncing off towers in the vicinity of these events, not to mention at the time of the armed robbery.

49.Mr Gates is closely connected to the silver Pulsar which was used in the Armed Robbery by virtue of him driving it the day before in respect of the theft, and items with his DNA on them found in the car about a month later. While the latter piece of evidence doesn’t take the Crown case very far on its own, it confirms Gates’ link to the car, which is evident, in any event. It tends to negate any suggestion that might be made that he had no connection with the car. According to the police informant, and it does appear rather clear from the photos that I viewed, it is clear that the person who takes the alcohol and gets into the silver Pulsar on the day before the armed robbery is Mr Gates. This is evident from his appearance and the distinctive T-Shirt he is wearing, which he is wearing again two days later, when picked up by police for unrelated matters. It is also clear that the car he gets into on this occasion at the bottle shop is the car that is used the next day in the Armed Robbery.

50.For these reasons, as I have said, the prosecution case is a very strong one. Of course, Mr Gates has the presumption of innocence, but in my view there is a very strong chance that a jury would be satisfied beyond reasonable doubt of his guilt. If this occurs, he will be facing a substantial sentence.  One would think that it might well exceed the sentence of Mr Jones who had the benefit of a discount for pleading guilty.

51.I accept that the grieving process for Mr Gates whilst in prison will be difficult and that it would be ideal for him to have the benefit of culturally appropriate counselling. It is not ideal, far from it, that he might have to wait up to about two years before his trial is heard, especially in circumstances where the longest period he has been in custody in the past is six months. In this regard, I will make further enquiries of Criminal Listings to see whether an earlier date might be obtained. However, in the face of a very strong Crown case, and considering the Applicant’s criminal history and matters pending, the inability to receive appropriate counselling and delay are not on their own or in combination with each other and other factors relied on by the Applicant sufficient to amount to a compelling reason, as defined in Ceylan, as to why Mr Gates’ detention is not justified.

52.Therefore his Application for bail is refused.

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