DPP v Lipp & Anor
[2008] VSC 203
•12 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1609 of 2007
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| v | |
| GEORGE ERNEST LIPP (Principal) RICHARD DAVENTRY MANN THOMPSON (Surety) | Applicant |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2008 | |
DATE OF JUDGMENT: | 12 June 2008 | |
CASE MAY BE CITED AS: | DPP v Lipp & Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 203 | |
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CRIMINAL LAW – FORFEITURE OF BAIL: Application for order rescinding or varying an order for forfeiture of bail - Section 6(4) of the Crown Proceedings Act 1958 – Principles governing exercise of discretion – Failure of surety to take all reasonable steps to ensure attendance of the principal at trial – Notwithstanding failure, whether unjust not to vary or rescind order – Hardship established - Amount of surety varied.
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Mr P Rose SC | Office of Public Prosecutions |
| For the Applicant | Mr D Beach SC Mr J Saunders | Valos Black & Associates |
HER HONOUR:
Richard Thompson applies pursuant to s 6(4) of the Crown Proceedings Act 1958 for an order rescinding or varying an order for forfeiture of bail made by Whelan J on 27 November 2007. The applicant has provided a surety of $300,000 undertaken at the Southport Magistrates’ Court on 15 March 2006 to enable George Lipp to be released on bail. George Lipp is Mr Thompson’s de facto wife’s brother. He has been charged with trafficking a commercial quantity of a drug of dependence and conspiracy to traffick a commercial quantity of a drug of dependence.
Mr Lipp answered his bail on 31 October 2007, being the first day of the trial and, on the morning of the second day of the trial, at his home at 2 Bigola Street, Ringwood, dressed in a suit he kissed his wife goodbye at 7.15am and has not been seen since. Subsequently, a Bench warrant for his apprehension issued and remains outstanding.
Section 6(4) of the Crown Proceedings Act 1958[1] provides an order may be varied or rescinded if it would be unjust to require the surety to pay the amount undertaken to be paid having regard to all the circumstances of the case.
[1]Section 6(4) of the Crown Proceedings Act 1958 provides “Where bail is declared to be forfeited under subsection (1) any surety may at any time within 28 days after the making of the order or, if the order was made in the absence of the surety, within 28 days after the order first comes to his notice apply to the Court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount undertaken to be paid having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed.”
The principles applicable to the exercise of this discretion are set out in the decision of Kaye J in the matter of an application by Vladimir Melincianu[2]. In that case, Kaye J held as follows:
[2] (2005) 155 A Crim R 76
(1) The application for the grant of bail and the setting of a surety is not a mere formality. Thus, the order either rescinding or varying an order forfeiting bail should not be lightly made.
(2) The role of the surety for the grant of bail is important. In particular, the surety undertakes the responsibility to take all reasonable steps to ensure the attendance of the principal at the trial. Further, the role of the surety is to act as a deterrent to the principal absconding. In other words, the purpose of setting a surety is to dissuade an accused from absconding because of the adverse consequences which might otherwise flow to a surety.
(3) The first and primary enquiry to be made by the court on an application such as this is whether the surety has taken all reasonable steps to ensure the attendance of the principal at his trial.
(4) If the surety has not taken such reasonable steps nevertheless the court may, in an appropriate case, permit a reduction in the amount to be paid pursuant to the undertaking of suretyship on the grounds of hardship.
The relevant principles have been summarised by Crockett J in Re Condon in the following passage:
“The surety’s obligation was to take all reasonable steps to ensure the attendance of the principal at his trial. The primary question on the present application must therefore remain - Did the applicant take such steps? If she has, then no doubt she will have gone a long way, if not the whole way, to earn the total or partial relief sought. If she has not then before any relief can be granted facts must emerge that establish that notwithstanding such failure it would be unjust in all the circumstances not to vary or rescind the order.”[3]
[3] [1973] VR 427 at 431
I turn then to consider whether the applicant in this case has taken all reasonable steps to ensure the attendance of the principal, Mr Lipp. The application is supported by affidavits sworn by Richard Thompson, his de facto wife, Betty Lipp, and Mr Lipp’s wife, Debrah.
Mr Beach SC, who, together with Mr Saunders of counsel, appeared on behalf of the applicant, relied upon the following:
(1) The applicant lived in Queensland at all relevant times and thus the issue of reasonable steps had to be considered in light of that fact. Specifically, this was not a situation where the applicant was able to visit the principal.
(2) There was regular contact between the applicant’s partner on the one hand and the principal and his wife on the other.
(3) The applicant’s partner’s eldest daughter regularly visited the principal at their home and regularly stayed on weekends.
Mr Thompson, in his affidavit sworn 27 May 2008, attested to his domestic and financial circumstances, including his present inadequate physical health and a history of his relations with the principal insofar as they relate to this matter. Mr Thompson had previously provided a surety when Mr Lipp was charged with aggravated burglary for which he was subsequently convicted and sentenced to 6½ years’ imprisonment with a non-parole period of four years. When Mr Lipp was released from gaol, Mr Thompson acted as a guarantor for a personal loan of $10,000, which Mr Lipp repaid.
Mr Thompson was advised in late 2005 that Mr Lipp had been arrested and charged with criminal offences. He was initially reluctant to act as a surety because, to his knowledge, this was the second time that Mr Lipp had been arrested by the police. It appears that he was eventually prevailed upon by his de facto wife to provide the surety because it was considered to be “in the best interests of George and his family that he be bailed so that he could assist in looking after Jordan in particular and attempt to make provisions for his family should he again be incarcerated”[4]. Jordan is one of Mr Lipp’s three children. She is now aged 13 and is severely disabled.
[4] Richard Thompson’s affidavit sworn 27 May 2008 par 4
It is apparent from all three affidavits in support of the application that contact was maintained with the principal through telephone calls between Betty Lipp, the surety’s wife then living in Queensland, and Debrah Lipp, the principal’s wife then living in Victoria. The telephone calls were said to be regular; once a week or a fortnight. Betty Lipp attests to speaking mostly with Debrah but sometimes with George, and that she was advised that he was abiding by his bail conditions, including daily reporting. Betty Lipp’s daughter was said to have attended the Lipp household once during the week and regularly staying on weekends. It was in this way that she was able to advise her mother that the principal was abiding by his bail conditions.
However, a different picture emerges from the affidavit of Peter Atkinson sworn 28 May 2008, which was relied upon by the Director of Public Prosecutions in opposition to the application. Exhibited to Mr Atkinson’s affidavit is a statement by the informant, Detective Acting Sergeant Mark Upton, detailing the inquiries he made as a consequence of Mr Lipp’s non-appearance. These include:
(1) Debrah Lipp told him that her husband only stayed at the house one to two days per week and that she had no idea where he resided at other times. She also described her husband as a very secretive person, who told her never to ask what he did or how he got money, and in that way she would never be able to give any information to the police.
(2) Richard Thompson told the informant he had not seen Mr Lipp for two or three years.
(3) Betty Lipp said she had not seen Mr Lipp for over three years, but that she was aware of her responsibilities as a surety and was confident that Mr Lipp would appear before the court.
(4) Betty Lipp had spoken with Debrah Lipp on 3 November 2007 and formed the opinion that she was not concerned at the prospect of the surety losing $300,000, and further that Betty Lipp believed that Debrah Lipp would not bother to contact her if she had any information about the whereabouts of the principal.
Of course, none of this is to say that the two Ms Lipps were not talking on the telephone on a regular basis and that George spoke to his sister during some of those calls.
Further, while Betty Lipp says she was aware of her responsibilities as surety, she in fact was not the surety; it was her husband who had undertaken that responsibility and, by his own account, apart from expecting Mr Lipp to comply with his bail conditions because (a) he had in the past; (b) his guarantee for the personal loan was not called upon; and (c) he relied upon his wife’s report that Mr Lipp was complying with bail conditions, he has done nothing to secure the principal’s attendance.
Further, it was a condition of Mr Lipp’s bail that he reside at 2 Bigola Street, Ringwood and that he report to the Ringwood Police Station three days a week. It appears that he was on daily reporting conditions only between March and October 2006 when they were changed to thrice weekly, which application was opposed.
Thus, it appears that, despite what Betty Lipp was being told, if Debrah Lipp’s statement is true he was not complying with is bail conditions.
It is apparent that Mr Thompson has relied upon his wife making telephone calls to the principal‘s wife; he has not spoken to Mr Lipp on any occasion and has taken no steps whatsoever to ensure his attendance other than to proceed on the expectation because Mr Lipp answered bail previously he would do so again. The fact that Mr Thompson was living in Queensland does not relieve him of his obligation to ensure Mr Lipp’s attendance, although it may have limited the opportunities he had to visit the principal, and although, as it was said by Vincent J in Arslan’s case[5], there was no suggestion that the situation would have been in any way different if he had been living in Melbourne, the fact remains that whether the surety could have done anything or not, he in fact did nothing.
[5] In the Matter of an Application for an Order to Vary or Rescind an Order Forfeiting an Undertaking of Bail By Cenzig Arslan (Unreported, Supreme Court of Victoria, Vincent J, 18 March 1986).
In circumstances where the surety had not seen the principal for three years, had not spoken to him, knew that this was the second time he had been charged with serious criminal offences and that he had served a significant period of imprisonment and where the surety had been set at a substantial figure, it could not be said that the conduct of the surety was such as to act as a deterrent to the principal absconding. Indeed, from the comments made by Mrs Debrah Lipp to Detective Acting Sergeant Upton, one might conclude that the loss of $300,000 would not weigh heavily on Mr Lipp’s mind.
I accept that Mr Thompson was reluctant to provide the surety for Mr Lipp and that he did so in the discharge of his family obligations. I accept also that Mr Thompson is a person of limited financial means and that his physical and mental health is compromised. None of this is disputed by the Director. Nonetheless, he did provide the surety, apparently in the knowledge that Mr Lipp faced serious charges and he had previously served a substantial period of imprisonment in respect of other criminal charges. In these circumstances, where the surety was set at a substantial sum of money, where the risk of failing to answer bail could not be discounted and Mr Thompson was said to have understood his responsibilities as a surety, he did very little to discharge them.
In these circumstances, where the principal has been placed in the custody of the surety and the surety has done little more than enjoy the misplaced confidence that he will answer his bail, it cannot be said in the terms expressed by Crockett J that he “will have gone a long way if not the whole way to earn the total or partial relief sought”. It follows I am not satisfied that the applicant has taken all reasonable steps to ensure the continued attendance of the principal at his trial, such as of itself warrants total or partial relief.
I turn now to the court’s discretion which may be exercised if facts emerge that establish “that notwithstanding such failure it would be unjust in all the circumstances not to vary or rescind the order”.
The applicant is 51 years old. He has been in a de facto marriage with the principal’s sister, Betty Lipp, since 1989. They have two children, one of whom suffers from Attention Deficit Hyperactivity Disorder. The family lives on an eight acre block of land at Mudgeeraba, Queensland. The property was valued in 2006 at $620,000, but Mr Thompson believes its current value is $20,000 more. The property is subject to two mortgages totalling $50,000.
Mr Thompson has suffered ill-health; in 1994 he was diagnosed as suffering from a cerebral aneurysm; in 1998 he sought psychiatric treatment for personality changes caused by the cerebral aneurysm, and continues on antipsychotic medication and, more recently, in October 2007 Mr Thompson underwent surgery in respect of a small bowel obstruction, which operation was successful. Mr Thompson was unemployed from 1998 to 2001, but since that time he and his wife have operated a successful business supplying salad mix to restaurants and health food stores. The applicant’s wife also operates a café three days a week, catering to the local tourist trade. This business generates $2,000 per week gross and the salad mix business is said to have a turnover of $45,000 per annum and provides the applicant with a nett income of $300 per week. Mr Thompson believes that it will be necessary to sell the house in order to satisfy the surety because he could not afford to service a substantial mortgage.
Mr Beach SC submitted that the applicant was a person into whose life more than an average amount of rain had fallen. He provided the surety reluctantly and for the best of motives. In these circumstances, where the principal’s disappearance was totally unexpected, where the surety did not connive in it and there was no relevant fault on the part of the surety, and where Betty Lipp has sought the assistance of three private investigators, all of whom report that her brother is effectively untraceable, it would be unjust not to vary or rescind the order.
Mr Rose SC submitted that as the principal lived in Melbourne and the surety lived in Queensland, the latter’s ability to monitor the principal and to act as a proper surety was severely compromised. The surety’s financial position had not changed since the surety was undertaken and, in those circumstances, where Mr Thompson understood his responsibility in the full knowledge of the risk and the consequences, where he had misgivings and yet did nothing active during the time Mr Lipp was on bail to secure his attendance, the whole of the amount should be forfeited.
I have come to the view it would be appropriate to give due recognition to the efforts the applicant did make which, although scant, were perhaps all he could do while he was living in Queensland. As I understand it, apart from his failure to attend on the second day of the trial, Mr Lipp did comply with his reporting conditions and, of course, he did attend for his arraignment. It might be said that it would have been prudent for the surety to have travelled to Melbourne at the time of the trial so as to secure Mr Lipp’s attendance every day of the trial. But at that very time it appears that Mr Thompson was hospitalised and undergoing treatment for the bowel obstruction.
Mr Thompson states that he will have to sell the house to provide the $300,000 as he is unlikely to be able to service a mortgage for such an amount. This is not disputed by the Crown. I accept that this will undoubtedly cause hardship, as it is not only the family home where the applicant, his wife and children live, but also the premises from where the family business operates. Although Mr Thompson must have realised that he ran the risk of losing not only his home but his livelihood when he undertook to provide the surety, nonetheless I am satisfied that these circumstances (i.e. selling of the family home) do amount to hardship, and that it is appropriate to permit a reduction in the amount to be paid.
However, in fixing the reduced amount to be paid, it is important that the integrity of the bail system be maintained so that persons undertaking suretyship understand the seriousness of their obligations and the consequences if they fail to act in accordance with those obligations, and that those persons who are granted bail with a surety will know that they are exposing the surety to dire consequences should they abscond.
For these reasons I propose to vary the amount of the surety by more than one third to $175,000. I fix that amount because it is still a substantial sum of money and, as such, is not likely to give the impression in the minds of right thinking persons that the court, in granting relief from forfeiture, is diminishing the importance of the obligations each surety undertakes and that such a figure may not necessitate the selling of the family home.
For these reasons I propose to vary the order made by Whelan J on 27 November 2007 forfeiting bail and I order that the surety pay the amount of $175,000 to the proper officer of the court at Melbourne.
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