In the matter of an application for bail by LK
[2019] VSC 349
•10 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0092
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by LK |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 May 2019 |
DATE OF RULING: | 10 May 2019 |
CASE MAY BE CITED AS: | In the matter of an application for bail by LK |
MEDIUM NEUTRAL CITATION: | [2019] VSC 349 |
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CRIMINAL LAW — Application for bail — Applicant charged with extortion — Bail previously revoked for failure to comply with conduct conditions — Continued association with members of outlaw motorcycle gang — Trial imminent ― Unacceptable risk test — Bail Act 1977, s 4E — Crimes Act 1958, s 27 — Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | S Anger | Giorgianni & Liang Lawyers |
| For the Respondent | M Fisher | Office of Public Prosecutions |
HIS HONOUR:
The applicant for bail is a member of an Outlaw Motorcycle Gang (‘OMCG’). He is currently facing one charge of extortion[1] ― due for trial in the County Court this month ― relating to threats made to the complainant[2] in 2017. These threats were allegedly made in the company of a co-accused (‘co-accused 1’)and were followed by further threats made by co-accused 1 and two further co-accused (‘co-accused 2 and 3’). Each of the co-accused is also affiliated with the OMCG.
[1]Contrary to s 27 of the Crimes Act 1958 (Vic), which provides that a person who makes a demand of another person with a threat to kill or inflict injury on a person (other than the offender or an accomplice of the offender); or with a threat in circumstances where, if the threat were carried out, the life of the person (other than the offender or an accomplice of the offender) would be endangered – is guilty of an indictable offence.
[2]Publication of the complainant’s name is currently prohibited pursuant to an order of a Magistrate made on 4 May 2018.
Charged on 14 December 2017, the applicant was released on bail subject to a number of conditions. Included among those conditions were that he not associate with members of an OMCG and that he report to a designated Police Station between 6.00am and 9.00pm every Monday and Friday.
On 3 September 2018, 24 November 2018 and the weekend of 19/20 January 2019, the applicant associated with various high-ranking members of the OMCG. On 18 February 2019, he failed to report in answer to his bail within the required timeframe. As a result, on 19 March 2019 the applicant was charged with and, at the Magistrates’ Court, pleaded guilty to three counts of contravening conditions of bail relating to three of those four events. He was fined a total of $2,950.
Within days, the Director of Public Prosecutions (‘DPP’) applied to revoke the applicant’s bail at the County Court. Judge Dean revoked bail on 27 March 2019, finding, among other things, that the applicant’s contraventions of bail were ‘brazen and significant’ and that the risk he would reoffend and interfere with witnesses could not be satisfactorily ameliorated by the imposition of bail conditions.
On 9 April 2019, the applicant applied to the County Court for bail on the basis of new facts and circumstances, those being the availability of a $20,000 surety and that the applicant had, at that time, spent 13 days in custody. Judge Dean refused the application, finding that the proposed surety did not, relevantly, amount to new facts and circumstances given that the DPP had not alleged any risk of the applicant absconding.
On 11 April 2019, the applicant filed an application for bail in this Court. The critical issue is whether there is an unacceptable risk that, if bailed, the applicant will endanger the safety of any person, offend, interfere with a witness or otherwise obstruct the administration of justice. If satisfied there is an unacceptable risk, the court must refuse bail.
For reasons I will explain, in this case I am satisfied there is such an unacceptable risk. Bail must therefore be refused.
Applicable principles
Parliament intends that when interpreting and applying the Bail Act 1977,[3] a court is to have regard to the importance of maximising the safety of the community and persons affected by crime to the greatest extent possible while also taking account of the accused’s presumption of innocence and right to liberty.[4]
[3]Bail Act 1977 (Vic), (‘Act’).
[4]Ibid s 1B.
The applicant is entitled to bail unless, because of a provision of the Act, I am required to refuse it.[5]
[5]Ibid s 4.
It is not in dispute that, in this particular case, the applicable test is provided by s 4E of the Act, namely, the ‘unacceptable risk’ test. Under that section a court must refuse bail if the prosecutor satisfies the court that there is an unacceptable risk that, if released on bail, the applicant would:
·endanger the safety or welfare of any person; or
·commit an offence while on bail; or
·interfere with a witness or otherwise obstruct the course of justice in any matter; or
·fail to surrender into custody in accordance with the conditions of bail.
In determining whether any of those risks are unacceptable, the court must take into account the surrounding circumstances and consider any conditions that might be imposed to mitigate the risks.[6] Pertinent to this matter, s 3AAA of the Act states that the ‘surrounding circumstances’ are all the circumstances relevant to the matter, which include but are not limited to:
[6]Ibid s4E(3).
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
Alleged offending
The following allegations are taken from the summary of prosecution opening prepared for the forthcoming trial.
The complainant had, in 2016, attended a OMCG’ event with a former member of the OMCG. Before that, he had also attended a gymnasium associated with the OMCG. Without having had any further association with the OMCG since July 2016, in August 2017, he received a communication from a person alleged to be co-accused 1. The complainant understood him to be a member of the OMCG.
As a result of that communication, and believing he had no choice, the complainant agreed to meet with co-accused 1 the next day at the gymnasium. There, he was met by co-accused 1, a man named alleged to be the applicant and another unknown male. Co-accused 1 directed the complainant to sit at a table and chairs. He then sat opposite the complainant, while the applicant sat directly behind him[7] and the unknown male stood next to him.
[7]The applicant’s version is that he was sitting at a ‘neighbouring table’ and was already seated when the complainant arrived: Applicant Submissions [2] - [3].
Co-accused 1 asked the complainant how he knew a certain member of the OMCG. Co-accused 1 then said, ‘Alright so this is how it’s going to go, you give us your bike or 15 grand cash today’. After the complainant told him that he had no money and that his motorcycle had been repossessed, co-accused 1 responded that he should retrieve the motorcycle for him to collect, or co-accused 1 would come to him. Feeling ‘extremely physically intimidated’, the complainant provided his phone number to co-accused 1.
The prosecution allege that the applicant is of a similar appearance to the person described by the complainant at the meeting, particularly noting a distinctive tattoo. It is also alleged that the complainant identified the applicant on a photo board on 8 December 2017. Telephone records allegedly place the applicant in the vicinity of the gymnasium on the morning of the alleged offending.
While the applicant is not alleged to have had any further role in the broader offending, for the purposes of context it is relevant to note that co-accused 1 allegedly met with the complainant later in August and took possession of his motorcycle, valued at $35,000. Additionally, co-accused 1 and co-accused 2 and 3 allegedly met with the complainant in October to collect transfer documentation for the motorcycle. Co-accused 2 and 3 allegedly demanded $2,000 for the ‘fuck around with the paperwork’, and continued to make monetary and other demands of the complainant. In November 2017, co-accused 2 and 3 allegedly participated in a burglary at the complainant’s home, during which time multiple items were stolen.
The complainant reported the matter to the police in early November 2017. On 23 November 2017, co-accused 2 and 3 were arrested at their respective residences. On 29 November 2017, co-accused 1 was intercepted and arrested while driving in Mount Waverley. On 14 December 2017, the applicant was arrested by appointment at the Police Station and released on bail.
Breach of bail
On 3 September 2018, while subject to the bail conditions outlined earlier, the applicant attended a funeral, wearing his OMCG vest, for the OMCG world president in the company of a number of other gang members from around the country. On 24 November 2018, he attended a Christmas party for the OMCG wearing gang apparel. He was there as one of more than 50 OMCG members, including the national president, Melbourne commander, Melbourne treasurer and members from other states and territories in Australia. The applicant, himself, is said to be an office-holding member of the OMCG.
Over the weekend a weekend in January 2019 the applicant travelled interstate to, amongst other things, attend a prison to spend time with OMCG members in custody, including the Victorian commander. He travelled there and back in company with the OMCG’s national president on a flight arranged under the same booking. He spent several hours at a licensed premises associating with a number of OMCG members from the state and its surrounds.
In February 2019 he reported at the designated Police Station an hour after the required reporting time.
Is there a risk the applicant will endanger safety, offend, interfere or obstruct justice?
There is no doubt there is at least a risk that the applicant would, if released again on bail, endanger the safety of or interfere with the complainant, the principal witness against him, otherwise obstruct the course of justice, or reoffend by breaching bail conditions. I draw that conclusion, first, from the nature of the offence with which he has been charged; that is, one which involves serious and threatening intimidation of a person. By definition, if true, it is a crime that is peculiarly indicative of a propensity to interfere with and attempt to influence others. Secondly, by the nature of his breaches of bail the applicant has demonstrated a willingness to prioritise the interests of the OMCG organisation, and his association with it, over compliance with any legal restrictions to which he may be subjected.
Clearly, the complainant is someone who the applicant has every reason to attempt to suborn. Not only could he identify the applicant as being present on the day of the alleged offending, he is – perhaps even more importantly, given the applicant’s foreshadowed defence – the only one who could give evidence as to the threatening nature of the applicant’s presence in the context of the demand that was then being made of him. The combination of those facts, the nature of the crime with which he is charged and his recent breach of bail conditions (and in particular, the flagrant nature of those breaches), raise a real risk that the applicant could attempt to interfere with the complainant or otherwise seek to obstruct the course of justice.
Is that risk unacceptable?
The applicant’s contentions
The applicant relies on the following matters in support of the grant of bail:
(a) Stable relationship, accommodation and employment: he is 26 years old, having migrated to Australia eight years ago. He has an older brother in Melbourne with a family. He has worked continually since arriving in Australia. Since 2011, he has been in a relationship and living with his partner and her daughter.
(b) Health issue: he recently spent a sometime in a secure ward in hospital, after suffering atrial fibrillation, where he underwent a procedure to restore normal heart rhythm. He was only recently discharged to be treated with medication, with review in 2 - 3 weeks.
(c) Limited criminal history: the applicant’s criminal history is confined to the breaches of bail to which he has already pleaded guilty and been punished by fine.
(d) Weakness of the prosecution case and likely sentence: it was submitted that the case against the applicant is weak, with the possibility of an acquittal being ‘quite strong’. Apparently, it will not be disputed that the applicant was at the gymnasium on day of the alleged offending. But, it is submitted that if he played a part at all his role was limited to ‘mere presence’ while others were engaged in making the alleged threats, and that a non-custodial sentence would be in range.
(e) Proposed conditions: the applicant contends that any unacceptable risk alleged by the DPP can be ameliorated by the imposition of the proposed bail conditions, which include that the applicant not associate with any co-accused or member of the OMCG, report to the designated Police Station every Monday and Friday and not attend any points of international departure.
(f) In summary, it was submitted that the applicant has learned the importance of complying with his bail conditions; will be too preoccupied with his health and preparing for trial to be a risk to anyone else; has a real chance of acquittal; if not acquitted, has a real prospect of a non-custodial disposition because of his limited role in the offence; and, in any event, bail conditions can reduce any risk to within acceptable bounds.
The DPP’s contentions
The DPP opposes bail, submitting that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail, and interfering with a witness or otherwise obstructing the course of justice in this matter.
Responding to the applicant’s submissions, the DPP submits that the case against the applicant cannot be categorised as weak and points out that, in any event, its strength is going to be tested in court very shortly. Further, the DPP submits that the alleged offending is very serious, pointing out that the maximum penalty for the offence of extortion is 15 years’ imprisonment. The DPP argues that if the applicant were to be found guilty of the charge against him, in the circumstances it would be open to the sentencing judge to impose an immediate custodial sentence.
The DPP emphasized the very serious nature of the bail breaches. Accepting that the applicant has been dealt with for the criminality of the bail breaches themselves, the DPP submitted that the court’s concern on the bail application is different. In this context, it is the effect those particular breaches have on the assessment of the current risk that the applicant might seek to further associate with other OMCG members and interfere with the complainant or otherwise obstruct the course of justice. Designed to prohibit contact with others associated with an OMCG, the primary purpose of the conditions, the DPP submitted, was to reduce the risk of such interference. Being so well connected within the OMCG, the applicant’s several episodes of contact ― the interstate trip being especially significant ― draw stark attention to the reality of that risk.
Further, the DPP argues that no conditions of bail could satisfactorily ameliorate the applicant’s risk of committing offences or interfering with witnesses. His recent bail breaches, it submitted, demonstrates the applicant’s disregard for bail conditions.
It is also noted by the DPP that the complainant is ‘extremely fearful’ of the applicant and the OMCG.
Analysis
In substance, I accept the DPP’s submissions.
The nature of the offence is serious, both in general, and in this particular instance. It involved the menacing interference with a person by threat and intimidation. The applicant accepted that the nature of the alleged offence is ‘serious’.
Identification is not in issue. The applicant’s presence at the gym is not disputed. The applicant being seated in proximity to the applicant when he was threatened by co-accused 1 is not disputed. At the committal, the complainant said the applicant sat directly behind him, within 1 to 1.5 metres. No-one suggests that the applicant himself verbally threatened the complainant. It is likely that, at trial, the issue will be whether the applicant was complicit in some relevant way with what co-accused 1 was doing. The applicant is a large man, strongly built, and it seems open to be found that he strategically seated himself near the complainant when co-accused 1 made the alleged threats. Acknowledging that my familiarity with all of the evidence is limited for this purpose, nonetheless I do not consider the prosecution case is weak.
In my opinion, if found guilty, a custodial sentence would at least be open. If the prosecution’s version of events is established, a sentencing judge could well take issue with the applicant’s assertion of him only having a ‘limited role’. A common element of extortion, and what often makes it effective and insidious, is a menacing show of strength. Thus, the applicant’s presence, size and appearance, and his strategic positioning behind the complainant, may justify the conclusion that he played an important role in the commission of the offence.
The applicant’s limited criminal history goes in his favour. Yet, as the DPP submitted, the particular nature of his breaches of bail, in the context of this case, is very troubling. They signify, in my view, that the applicant is committed to the OMCG organization and its ethos. Especially the attendance at the Christmas party and the interstate trip, his breaches of bail were remarkably brazen and flagrant; not mere inadvertent or innocuous conduct. Those episodes were organized, high-level, and business-like. They put him right in the bosom of the organization with which he was not permitted to associate.
I also accept the DPP’s characterization of the purpose for which those particular bail conditions were imposed; to reduce the very risk with which this Court is now concerned.
Undoubtedly, the applicant has a worrying health issue. But, seemingly, he has received good and effective treatment and is being managed by medication that can be administered while he is in custody. There was no evidence that he will lack what he needs in that regard, nor that custody will be especially adverse for his condition. Without evidence of any particular need for him to do so, it was submitted that he is entitled to get a second medical opinion and he would need to be out of custody to be able do so effectively. That was not a persuasive argument.
It is relevant that the known view of the complainant is that he is extremely fearful of the applicant’s release.
It is also relevant that the trial is now only a matter of weeks away. Understandably, there was no submission put in favour of bail on the basis of any delay in custody awaiting trial. But, there was some force in the DPP’s argument that these final weeks before trial are a particularly critical time to guard against any risk of interference with witnesses.
As for the prospect that bail conditions would sufficiently reduce the risk of endangerment, interference or obstruction to an acceptable level, there is no reason to suppose that the re-imposition of essentially the same bail conditions would have any better prospect of ameliorating that risk than they did the first time around. It is all too easy for the applicant to claim that he has learned now how important it is that he obey those conditions, and urge this Court to trust that he will; unfortunately for him, his conduct has made that submission sound rather hollow.
I take account of the presumption of innocence and the applicant’s right to liberty. Plainly, however, those considerations are to be weighed against other factors that tend against allowing him his liberty. In this case, those factors are, most relevantly, the nature of the alleged offending, the strength of the prosecution case, the nature of the applicant’s recent bail breaches and the current proximity to the time of trial. Weighing those considerations, the importance of safeguarding the complainant to the greatest extent possible intensifies the focus on the assessment of whether the risk that the applicant will interfere with him can be acceptably reduced by any effective bail condition. I do not think that it can be.
Bail must be refused.
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