R v PG; R v Vettese - [2019] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v PG; R v VETTESE
[2019] SASC 211
Reasons for Decision of The Honourable Justice Peek
12 December 2019
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - SERIOUS AND ORGANISED CRIME SUSPECTS
CRIMINAL LAW - PROCEDURE - BAIL - BEFORE TRIAL - OTHER CASES
Application for review of two decisions to refuse bail and application for serious and organised crime suspect determination in respect of the applicant, PG.
PG and Vettese were jointly charged with one count of aggravated blackmail (Count 1) and one count of aggravated threaten to cause harm (Count 2). The complainant stated in his affidavit that, on 5 November 2019, he observed a vehicle arrive at his place of employment. PG and Vettese, together with their other two co-accused, Radomanski and Patterson, were in the vehicle. The complainant observed Radomanski exit the passenger side of the vehicle. Before Radomanski could speak to him, the complainant ran from the scene and was driven away by a friend. The complainant’s employer deposed in his affidavit to a conversation with PG in which PG stated that the complainant needed to “sort it out and pay off the debt”. The prosecution allege that the employer had acted as ‘agent’ for the complainant by receiving the alleged threat.
Held, dismissing the application for a serious and organised crime suspect determination and allowing the applications for review of bail:
1. An essential element of the charge of blackmail is proof of a ‘menacing’ in the sense of a threat being made at the time and place in the specified charge. It is strongly arguable that the words deposed to by the employer do not contain an express or implied threat to harm the complainant; and that while other words spoken by Radomanski to the complainant on previous occasion(s) might (or might not) have an evidentiary use, such cannot alter or enlarge the pleaded actus reus of the charge. There is a strong argument that Count 1 as presently pleaded has a quite low probability of success, at least as against PG and Vettese, and this is so in the present case notwithstanding the relevant decision of the High Court in Austin v The Queen (1989) 166 CLR 669 (not referred to by Counsel).
2. There is an equally strong argument in relation to Count 2.
3. The prosecution has not established that the discretion to declare PG a serious and organised crime suspect should be exercised in favour of the prosecution.
4. PG has established, by a narrow margin, that the cumulative effect of the relevant factors is that special circumstances exist justifying his release on Home Detention bail (on extremely restrictive conditions).
5. Vettese has also established the existence of special circumstances justifying his release on the usual Home Detention bail conditions.
Bail Act 1985 (SA) s 3A, s 10A, s 11; Criminal Law Consolidation Act 1935 (SA) s 5, s 19, s 83GC, s 171, s 172; Kidnapping Act 1960…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v PG; R v Vettese

Details

AGLC: R v PG; R v Vettese [2019] SASC 211
Case: [2019] SASC 211
Decision Date: 12 December 2019

CaseChat Overview and Summary

The case of R v PG and R v Vettese involved two applicants seeking bail prior to trial for charges of blackmail. The applicants were members of the Hells Angels criminal organisation, with PG being a full member and Vettese having associations with members of the Hells Angels "North Crew". The applicants were charged under sections 172 and 171 of the Criminal Law Consolidation Act 1935, which pertain to blackmail and related offences. The primary legal issue before the court was whether the applicants should be granted bail, given the serious nature of the charges and their association with a criminal organisation.

The court considered several factors in determining whether the applicants should be granted bail. The seriousness of the charges was a significant factor, particularly as the alleged offences were part of a joint enterprise involving multiple individuals. The applicants' criminal records were also considered, with the court noting a history of non-compliance with court orders and drug use, which raised concerns about their suitability for bail. Additionally, the court acknowledged the risk that the applicants, if released, might intimidate the complainant due to their association with the Hells Angels.

Ultimately, the court found that the applicants had not demonstrated special circumstances that would warrant granting bail. The court was not convinced that the applicants would appear for trial if released on bail, and their ongoing association with a criminal organisation posed a risk to the complainant. Consequently, the court declined to exercise its discretion in favour of the applicants, denying their applications for bail.

The final orders of the court were that both PG and Vettese remain in custody until their trial, reflecting the court's determination that the risk of the applicants failing to appear in court or intimidating the complainant outweighed any arguments in favour of granting bail.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all of the circumstances, I am not persuaded by the prosecution that I should exercise my discretion in their favour and make the order sought. I decline to do so. PART C: CONCLUSION ON PG’S APPLICATION FOR BAIL As already noted, PG is a prescribed applicant under s 10A(2)(d)(iii) of the Bail Act because he is charged with an offence contrary to CLC Act s 172 and accordingly must establish that there are special circumstances such that he should be granted bail. It is well established that special circumstances may be constituted by the combination of a number of factors. I turn to the relevant factors here. I accept that the charges are serious, and the more so because it is alleged they were carried out as a joint enterprise by four men together, two of whom (PG and Patterson) were members of the Hells Angels with Radomanski and Vettese having associated with several members of the Hells Angels “North Crew”. For present purposes, I am prepared to accept in favour of the prosecution that it can be demonstrated that the Hells Angels OMCG is in fact a criminal organisation. The evidence before me is that PG obtained full membership of the Hells Angels OMCG on or about 5 January 2016 and remained a full member as at 5 November 2019, and presumably remains a full member as at the present date. I am told that PG’s date of birth is 24 September 1986 and he is therefore 33 years old at the present time. His most serious set of convictions appear to have been as a child for Attempted Robbery and Aggravated Robbery In Company; these were dealt with by the Children’s Court in April 2005 and he received a bond. Very shortly thereafter, in May 2005, he was dealt with as an adult in the Magistrates Court and received a suspended sentence of 18 months imprisonment with a 10-month non-parole period for Aggravated Serious Trespass. Since then he has had a number of less serious convictions and only three involving sentences of imprisonment. The first sentence was on 23 November 2015 when a Magistrate dealt with some five separate convictions of Driving Under Suspension and imposed a sentence of three months’ imprisonment to be released on a bond after serving five weeks’ imprisonment. The second was on 16 May 2019 when he was convicted of an offence of Fail To Comply With Bail Agreement and a Magistrate imposed a sentence of seven days’ imprisonment, suspended upon entry into a bond to be of good behaviour for twelve months. The third was on 12 June 2019 when he was convicted of two counts of Being Present With Two Or More Criminal Organisation Participants contrary to CLC Act s 83GC and a Magistrate imposed a sentence of four months seven days imprisonment to be served on Home Detention. It is not a good record but it is certainly not the worst of criminal records. There is no particular reason to think that PG would not answer bail and appear at Court when required to do so. However, prosecution counsel makes a number of valid points. First, the fact that he has some six offences of Driving Under Suspension and four convictions for Fail To Comply With A Bail Agreement shows that he cannot be trusted to obey the orders of the Courts and to that extent he may be a poor candidate for bail. Secondly, he has a history of illicit drug use and the latest Home Detention Compliance Report (10 December 2019) indicated that he has had two positive drug tests, the first for cannabis and the second for both cannabis and amphetamines; these are matters which also reflect adversely on his suitability for Home Detention. However, it is fair to add that the Home Detention Compliance Report (10 December 2019), while complaining that PG is not infrequently late for reporting conditions, did recognise that he “showed good compliance as there are no deviations noted whilst the defendant was out on a pass issued by his assigned officer”. It concludes that the defendant “has showed reasonable compliance through his Home Detention order/supervised order despite failing to report on time”. Thirdly, he remains a full member of the Hells Angels OMCG, which he knows to be a criminal organisation; as such, he is not to be trusted generally. Fourthly, the complainant is in genuine fear of the Hells Angels and associates thereof and one cannot rule out some degree of risk that PG, if released on bail, might in some way participate in intimidation of the complainant.

Ratio Decidendi

Legal Principle Established

By the time of the application by Vettese on the following day, 6 December 2019, prosecution counsel had come to the following position as against both applicants:MS DIAMANDI: … Prosecution submit that in this matter, the demand is made to the witness [the employer] essentially as an agent for the complainant who has, by that stage, left the workshop. We submit that the circumstances in which that occurred establish that the demand was made with menaces. There can be an implied threat and we can submit -HIS HONOUR: Can you just take me to where I find this particular demand you’re talking about?MS DIAMANDI: … The Exhibit marked MK3 and that’s the statement of [the employer] and on p.2 at para.8, the witness describes the conversation that he had with one of the co-accused in relation to Chris, being the complainant, needing to pay a debt. Prosecution submit that that is the demand that's made to pay them money and it's the circumstances in which that occurred which constitutes the threat.…MS DIAMANDI: As submitted, we say that it is a demand when it’s [viewed] in the circumstances in which it's occurred.HIS HONOUR: A demand to whom?MS DIAMANDI: To the witness [the employer] as an agent of the complainant.HIS HONOUR: What’s he supposed to do? He's merely told that someone else owes some money. He’s not being asked to come up with anything.MS DIAMANDI: No, he’s not but he’s, we say, an agent for the complainant.HIS HONOUR: Since when is he an agent for the complainant? Who says that?MS DIAMANDI: In the circumstances in which it occurs. … Agent in the sense to send the message back to the complainant that ‘You need to pay that money’ … Consideration I now turn to each of the Counts in order to consider the above submissions in more detail.Count 1: Criminal Law Consolidation Act 1935 s 172 Sections 171 and 172 of the CLC Act provide as follows:Part 6B—Blackmail171—Interpretation(1) In this Part—demand includes an implied demand;harm means—(a)physical or mental harm (including humiliation or serious embarrassment); or(b) harm to a person's property (including economic harm);menace—a person who makes a threat menaces the person to whom the threat is addressed (the victim) if—(a)the threat is a threat of harm to the victim or a third person (to be inflicted by the person making the threat or someone else); and(b) the threat is unwarranted; and(c) either—(i)the threat would be taken seriously by a reasonable person of normal stability and courage; or(ii)the victim in fact takes the threat seriously because of a particular vulnerability known to the person making the threat;serious offence means an offence punishable by imprisonment;threat includes an implied threat but, unless the threat is a threat of violence, does not include a threat made in the course of, or incidentally to—(a) collective bargaining; or(b) negotiations to secure a political or industrial advantage;unwarranted—a threat is unwarranted if—(a)the carrying out of the threat would (if it were carried out in the State) constitute a serious offence; or(b) the making of the threat is, in the circumstances in which it is made—(i) improper according to the standards of ordinary people; and(ii)known by the person making the threat to be improper according to the standards of ordinary people.(2) The question whether a defendant's conduct was improper according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.172—Blackmail(1) A person who menaces another intending to get the other to submit to a demand is guilty of blackmail.Maximum penalty: (a) for a basic offence—imprisonment for 15 years;(b) for an aggravated offence—imprisonment for 20 years.(2) The object of the demand is irrelevant.Examples—1The person who makes the demand may be demanding marriage or access to children.2The person who makes the demand may be seeking to influence the performance of a public duty.