DPP v Richardson
[2009] VSC 87
•13 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
CRIMINAL LAW DIVISION
No. 1417 of 2009
| DPP |
| V |
| JASON PETER RICHARDSON |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2009 | |
DATE OF JUDGMENT: | 13 March 2009 | |
CASE MAY BE CITED AS: | DPP v Richardson | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 87 | |
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Bail application – extensive delay – risks – application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms G Coghlan | Office of Public Prosecutions |
| For the Applicant | Mr C Carr | Slades and Parsons |
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HIS HONOUR:
This is an application for bail by Mr Jason Richardson filed in this court on 27 February 2009.
I have been most assisted by Mr Carr's submissions, both orally and in writing. A six page written submission, which I consider most thoughtful and comprehensive, has been filed and I have regard to that as well as Mr Carr's oral submissions. Nonetheless, I am satisfied that this is an appropriate case in which to refuse the application for bail. The stand-out matter here is the extensive delay, which I shall in a moment rehearse, and the history of the applicant in relation to prior convictions, including failure to answer bail and breaching conditions of bail.
The applicant is now 32 years of age, having been born on 1 September 1976, and was 29 years of age at the time of the alleged offences. The offences charged are rape and indecent assault. They are alleged to have occurred on 2 December 2005 at Trafalgar. The applicant was charged on 20 March 2006 and has been in custody since that time. That is an extensive time and Mr Carr, very properly, has focused upon that matter. The reason for the extensive time in custody is the following, as appears from this review of proceedings.
The applicant was remanded in custody to appear at the Moe Magistrates' Court for a filing hearing on 20 March 2006, on which day the applicant did not apply for bail. He was remanded to reappear at the Moe Magistrates' Court on 27 June 2006 for a committal mention hearing. That was then adjourned to 11 2006 and again to 9 November 2006 for a committal hearing.
On 25 July 2006 the applicant applied to the learned Magistrate at the Moe Magistrates' Court for bail, which application was refused on the basis of the applicant being an unacceptable risk. He was remanded to appear at the committal hearing on 9 November 2006. The committal then occurred and the learned Magistrate directed the applicant stand trial and remanded him in custody to appear at a case conference at the Latrobe Valley County Court on 28 February 2007.
The matter was ultimately set down for trial on 11 July 2007. The jury trial occurred before his Honour Judge Kelly in the Latrobe Valley County Court, commencing on 11 July 2007. The applicant pleaded not guilty to both counts on the presentment. He did not give evidence at his trial, as is his full and plenary right, and the defence, as I understand it, was consent.
The applicant was found guilty by a jury on 17 July 2007 and on 18 July 2007 was sentenced by the learned judge for five and one half years' imprisonment on Count 2, rape, one month imprisonment on Count 1, indecent assault, a total effective sentence of five and a half years' imprisonment. The learned judge set a non-parole period of three and a half years and a total of 486 days pre-sentence detention was declared.
The applicant filed a notice of application for leave to appeal against conviction and sentence on 27 July 2007. As I have said to counsel during submissions, there was, unfortunately, a significant hiatus in the appeal process of some 14 months, as appears from Exhibit G2 to the primary affidavit in support of the application of Mr T.F. Gattuso, learned solicitor, of 27 February 2009. The application for leave to appeal against conviction and sentence was filed on 27 July 2008. It lapsed. There was an application for reinstatement on 31 March 2008 and the reinstatement was granted on 19 September 2008. That was an unfortunate hiatus and it was no fault of the applicant.
Ultimately the matter came on before the Court of Appeal on 3 February 2009 before Maxwell P and Vincent and Buchanan JJ, reported as (2009) VSCA 4. I have had close regard to that judgment in which essentially the learned trial judge failed to direct the jury as to the limitation and proper use of the evidence which was led in relation to the applicant as to prior threat and propensity and the Court of Appeal directed a new trial. It is relevant that at the trial before Judge Kelly there was no submission of no case to answer and in the Court of Appeal there was no ruling that the conviction ought to be quashed and no retrial ordered.
It is anticipated that this matter will come on for trial around October 2009, although the prosecution, very properly, as appears in the final paragraph No.9 of the affidavit in opposition of Mr A.G. Rooney, learned solicitor, will press for an expedited hearing.
Thus it is that this matter has taken a most unfortunate and lengthy time.
There are two affidavits in support of the application. The first, as I have said, of 27 February 2009 with four exhibits thereto, and the second, again of 12 March 2009, relating to the personal situation of the applicant and in particular the difficult situation that he cannot qualify for an appropriate program in his present uncertain legal status until it was either an acquittal, which would have one consequence, or a conviction which would have a qualifying consequence. And I am conscious of that difficulty.
Paragraph 30 of the primary affidavit in support helpfully sets out the circumstances relied upon in support of the application. Of course, under the Bail Act 1977, s.4(1)(b), the applicant is prima facie entitled to bail and s.4(2)(d), the prosecution bears the onus of establishing that the applicant is an unacceptable risk on one of the risk issues. Section 4(3) sets out the matters to be taken into account which are well familiar including sub-paragraphs (a) to (e).
The matters relied upon in support of the application are primarily, of course, the very extensive time in which the applicant has been in custody; second, that he has a stable residence of which he and his partner and stepdaughters can have recourse to, and I certainly take that into account and they are present in court and I acknowledge their presence; the applicant has some substantial surety available - very substantial of $50,000; he was in full time employment until his remand. The applicant does not have serious convictions in the past as can often come before this Court and he does not have substantial gaol sentences in the past as often come before this Court.
In his helpful review, Mr Carr as relied in particular upon the principles set out in Barbaro v. DPP [2009] VSCA 26 at [41], where the interface between risk and time is stated and Mokbel (No.3) 2002 VSC 393 at [8], per Kellam J, as then he was and Hilderbrandt v. DPP 2006 VSC 198 at [11] per King J. I agree with Mr Carr that the persons involved in those matters stand in an entirely different category to this applicant. However this applicant has a very relevant history which in a moment I shall refer to. The essential thrust of Mr Carr's submissions were, apart from the well known principles both stated in the Bail Act 1977 and the authorities I have just referred to and the extensive time that Mr Richardson has been in custody, that the interface between the risk and the oppression of the applicant is such that the risk of further offences or of failing to answer bail, which can be said to exist, is not unacceptable.
Mr Carr thus has made a submission of relativity which I entirely understand and he has called in aid as well the circumstance that, unlike Mr Richardson's previous brief gaol terms, this has now been up to three years which, as Mr Carr has said, can be regarded by the Court as itself, albeit on remand, a significant deterrent factor which I ought to take into account and I do.
However the fact remains that the applicant, at the age of 29 years at the time of the offences charged and now 32 years, has 55 convictions sustained on 16 separate court appearances from October 1995 to January 2005. A considerable number of the prior offences are driving and related offences, street offences and dishonesty offences. But the applicant does have an aggravated burglary matter and two counts of theft for the total of six months' imprisonment imposed on 31 August 2000; recklessly causing injury, two counts, three months' imprisonment imposed on 17 January 2005. He has eight convictions on four separate occasions over six years for failure to answer bail - three convictions, 5 March 1997, two further convictions on 24 November 1997, one further conviction on 28 June 2000, and two further convictions on 9 July 2003. Further, he has two convictions for breaching the conditions of bail - one on 5 March 1997 and one on 28 June 2000. Further, he has convictions for stating a false name, stating a false address and refusing to state name and address on 17 January 2005. Further, there are outstanding warrants in relation to him – in the Bega Court, New South Wales, burglary/theft and failing to appear, outstanding since 1998; and Hobart, Tasmania, aggravated burglary/theft and failure to answer bail, outstanding since 2001.
To the affidavit in opposition deposed by Mr A G Rooney, in Exhibit 1, the statement of the informant, Detective Senior Constable Lambert of 6 March 2009, there is reference to fear of interference with witnesses. There has also been reference to other matters which might be relied upon in opposition to the application for bail. But in my view the history and antecedents of the applicant are such that he is an unacceptable risk, both as to further offences and as to failure to answer bail, and given the extensive and repetitive nature of the prior offences I consider that it is entirely justified that bail in this instance ought be refused, and I refuse it.
I hope that an expedited hearing can be arranged but I have premised my judgment upon the expectation that the trial be heard in about October. If, as Mr Carr has said, there may be an application at the trial for a further adjournment because of the delicate situation in relation to the alleged victim of the offences, then that is a matter for the trial at that time but I will not anticipate it. For those reasons I refuse the application.
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