DPP v Hildebrandt
[2004] VSC 549
•18 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1512 of 2004
| IN THE MATTER of the Bail Act 1977 |
| And |
| IN THE MATTER of an Application for Bail by GREGG JAMES HILDEBRANDT |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 NOVEMBER 2004 | |
DATE OF JUDGMENT: | 18 NOVEMBER 2004 | |
CASE MAY BE CITED AS: | DPP v HILDEBRANDT | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 549 | |
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Bail Application – Conspiracy to murder – restrictive custody – right to bail balanced with seriousness of offence –strength of known case – unacceptable risk - bail refused – s 4 (4) (c) Bail Act 1977
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC | Office of Public Prosecutions |
| For the Accused | Mr S Johns | Lewenberg & Lewenberg |
HIS HONOUR:
Gregg Hildebrandt has been charged with conspiracy to murder. He is being held on remand in custody at Barwon Prison. That remand involves his being locked down in his cell for 22 ½ hours a day. It involves extremely restrictive access to his legal advisers, and family visits which are, to say the least, few and highly constrained.
The application he now makes is for bail. That application is made under the provisions of the Bail Act 1977 which, the Crown submits, include in his case the provisions of s.4(4)(c) of the Act which imposes upon him the onus of showing that his detention in custody is not justified.
Mr Horgan SC for the Crown argues that the circumstances of this case are such that sub-s.(c) is invoked because the offence with which the accused is charged involved, in one sense or another, the use of a firearm.
Mr Johns, who seeks bail for Mr Hildebrandt, does not concede this interpretation of s.4 (4)(c). He contends that it does not apply.
The offence with which Mr Hildebrandt is charged is conspiracy to murder. The essence of a conspiracy is an agreement. The offence is committed once the agreement is complete. The agreement and formation of it does not involve the use of a firearm, even if the agreement itself is to use a firearm.
Mr Horgan, however, argues that in the course of committing the offence there was a threat to use a firearm, or there must have been, at least by inference so that the section is invoked.
This seems to me to be giving a strained interpretation to the section; one which it would appear was not in the draftsman's mind when it was drafted. It may be, as Mr Horgan said, that the question of conspiracy was merely accidentally omitted. But in any event it does not, in my opinion, entitle the meaning to be ascribed to s (4) (c) in the way in which the Crown contends in this case.
Accordingly, the accused is not in a position where he must show cause why his detention in custody is not justified.
I turn then to what might be said to be the ordinary situation. The accused has a prima facie right to bail. He is a person of 34 years of age, with some prior history of offending between the years 1993 and 1997. That offending does not in any way involve crimes of violence, and it would appear that he has never been sentenced to an actual term of imprisonment, although he has received suspended sentences. It is not without significance, however, that on one occasion he failed to appear on bail.
He lives, in ordinary circumstances, with his mother, of whom he is one of three children. His father is dead. He worked as a spray painter and panel beater, although whether he has worked in that trade in recent times the court was not informed.
It is said that he has no drug issues and that he had a health problem in 1993.
The matters which I must take into account in determining whether the accused presents an unacceptable risk if he is released on bail are set out in s.4(3) of the Act.
The first of those matters relates to the nature and seriousness of the offence. The offence of conspiracy to murder carries with it a life sentence. Its seriousness cannot be gainsaid.
If the Crown case here is accepted, this conspiracy was about to be put into effect. The event which the Crown says was at the core of the conspiracy was about to be carried out. It is difficult to conceive of a more serious offence; at least a more serious offence where no one in the end was physically hurt.
The next matter I must take account of is the character, antecedents, associations, home environment and background of the accused person. In this regard I have already referred to his prior convictions and I have heard it asserted, on his behalf, that his association with others who have been charged with this offence was recent and not of long standing.
He lives with his mother and his background, as I have said, involved some employment in the panel beating industry.
Of particular concern, however, is the fact that the Crown is in the possession of a statement in which it is asserted that a co-accused obtained a gun from the applicant within the month immediately preceding the alleged offence.
The second matter which is of concern is that telephone intercepts conducted between 4 June 2004 and 9 June 2004 are said to have obtained evidence of 69 calls in which the trafficking of amphetamines and/or cannabis was the topic of conversation, if not the subject of offences. Of less importance was that in the front bedroom of the house a small quantity of cannabis was found on the execution of a search warrant. However, I regard particularly the evidence that this man was associated with a gun in the month immediately preceding this event as being of considerable significance.
The next matter I must take into account is the strength of the Crown case. On a bail application it is inappropriate to canvass the evidence against an accused person, particularly where it is hoped that the trial of the matter will be heard in the relatively near future. It is sufficient to say that I am satisfied that the Crown case is not weak. If the inferences which would appear to be open are drawn by the jury it might be said to be strong.
The circumstances in which the accused man is being held, as I have already indicated, are quite unacceptable. This society does not pay lip service to the presumption of innocence; it is a real presumption, and we do not lock up innocent people for 22 ½ hours a day. I have heard Mr Horgan say that the authorities are looking at this question and it is to be hoped that something will be done about it because, if something is not done, the case for granting bail to persons such as Hildebrandt and perhaps his co-accused may become overwhelming. At this point it is not and I am satisfied that he presents an unacceptable risk of offending again or perhaps of absconding. I say nothing as to the quality of the evidence led in respect of the surety put up for him, but I am not satisfied that he ought to be bailed at this time.
However, if the conditions in which he is incarcerated do not improve, in particular if he is not given more freedom from his cell than 1 ½ hours a day, a subsequent application for bail may well be successful.
I do not accept the submission made on Hildebrandt's behalf that the length of the delay in this case appears to be going to be inordinate. A committal in March 2005 may well result, as Mr Horgan says, in a trial later in the year. But if that does not happen and if the conditions under which he is being held do not improve, a bail application then may well be successful. At this point of time the bail application is refused.
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