Re an application for bail by Kirsty Lumley
[2016] VSC 663
•3 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0151
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an Application for Bail by KIRSTY LUMLEY | |
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JUDGE: | Priest JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 November 2016 |
DATE OF JUDGMENT: | 3 November 2016 |
CASE MAY BE CITED AS: | Re an application for bail by Kirsty Lumley |
MEDIUM NEUTRAL CITATION: | [2016] VSC 663 |
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CRIMINAL LAW – Bail – Dishonesty, drug and driving offences – Unacceptable risk that the applicant will commit offences on bail or endanger the safety or welfare of members of the public – Bail refused – Bail Act 1977 s 4(2)(d)(i).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M R Page | Peter Monagle Lawyers |
| For the Respondent | Mr A Austin | Ms Moricia Vrymoet, Victoria Police |
HIS HONOUR:
Introduction
Kirsty Lumley, the applicant, is aged 29 years.[1] She seeks bail from this Court. Her application is supported by two affidavits of her solicitor, William May, affirmed on 17 October 2016 and 26 October 2016.
[1]Her date of birth is 4 June 1987.
The respondent opposes bail, and relies on the affidavit of First Constable Dion Wintle, affirmed on 25 October 2016.
The applicant currently faces a number of indictable offences (including three charges of theft; two charges of handling stolen goods; one charge of attempting to obtain property by deception; and one charge of possessing a drug of dependence) and a number of summary offences (including failing to stop a motor vehicle; driving whilst disqualified; unlicensed driving; driving an unregistered vehicle; and using number plates not issued to the vehicle being driven).
The alleged offending to which this application relates took place at about 3.15am on 11 September 2016. The applicant was driving a vehicle with stolen number plates, and fled when police first attempted to intercept the vehicle. She was successfully intercepted by police a short time afterward whilst stopped in traffic, at which point she and her passenger were arrested. Upon searching the vehicle, police located 0.022g of a white crystal substance believed to be methamphetamine in the applicant’s mobile phone case. When interviewed at Sunshine Police Station, the applicant admitted to being the driver of the vehicle. Police believe that the applicant’s licence was suspended at the time of her arrest, and that she possibly was disqualified.
The applicant has remained in custody since her arrest on 11 September 2016. Her application for bail in the Sunshine Magistrates’ Court on 28 September 2016 was refused on the ground that she presented an unacceptable risk of committing an offence whilst on bail.[2]
[2]Bail Act 1977 s 4(2)(d)(i).
Apart from the offences on 11 September 2016, it is further alleged that in April 2016, the applicant was involved in the theft of number plates from a vehicle in Melton.[3] In May 2016, CCTV footage depicted a female believed to be the applicant leaving a BP Petrol Station without paying for petrol, in a vehicle with the stolen number plates affixed. On 20 June 2016, the same number plates were seen affixed to a Nissan X Trail driving through Melton. The driver fled when police attempted to intercept the vehicle. The next day, a credit card (among other items), was stolen from a car parked at St Albans train station. On the following day, 22 June 2016, CCTV footage depicted a female driver of the same Nissan X Trail attempting to make a purchase using the stolen credit card. Further enquiries revealed the applicant to be the owner of the Nissan X Trail, which is currently unregistered.
[3]These alleged offences are not the direct subject of the application.
The applicant’s submissions
In this court, the applicant submitted that prima facie she is entitled to bail,[4] and that the onus falls upon the prosecution to demonstrate that she is an unacceptable risk of reoffending if bail is granted. Among others, she relied on the following factors:
[4]I was informed that the applicant is next in court on the present charges tomorrow, 4 November 2016, but that it was not known what would transpire with respect to their disposition. No issue of delay was relied upon.
· there is insufficient evidence that the applicant was the female depicted in the CCTV footage of May 2016, or that she was a disqualified driver on 11 September 2016, demonstrating weaknesses in the prosecution case;
· there is little evidentiary basis for the prosecution’s suggestion that the applicant is an unacceptable risk of endangering the safety and welfare of members of the public if granted bail;
· the applicant has strong ties to the jurisdiction, and her brother-in-law, Mr Andrew Steele, is prepared to make a formal undertaking to the Court to contact police immediately should he become aware that the applicant has breached bail;[5] and
· the applicant has two young children, one of whom lives with the child’s father, and another who lives with her paternal grandparents.
[5]Mr Steele gave viva voce evidence. He said that it was anticipated that the applicant might live at his residence with his fiancée and children until the applicant’s father returns from holiday on 5 November 2016, at which time the applicant would go to reside with her father.
The applicant also submitted that any risk that she may commit further offences whilst on bail could be mitigated by appropriate conditions; in particular, that she reside with her father, and be subject to reporting obligations and a curfew.[6]
[6]See footnote 8 below.
Further, a letter accompanying the affidavit of 26 October 2016 confirms the availability of a place for the applicant to undertake a 12 week program at a mental health and addiction clinic to treat her substance addiction, commencing immediately upon her release from remand.
The respondent’s submissions
As I have said, the respondent opposed bail, contending that there is an unacceptable risk that if granted bail, the applicant would commit an offence, endanger the safety or welfare of members of the public and fail to answer her bail. The respondent relies on the following:
· the applicant has failed to appear on bail and has contravened a suspended sentence in the past, demonstrating a disregard for court orders;
· the applicant will place the public at risk by driving unlicensed if released; and
· the applicant is a long time user of cannabis and methamphetamine, and given that she is unemployed, is likely to commit offences in order to support her drug habit.
Discussion
The applicant has a significant criminal history. Since 2013, she has been convicted on many occasions of offences including handling stolen goods; obtaining property by deception; dealing with the proceeds of crime; possessing a drug of dependence; stating a false name; stating a false address; possessing a prohibited weapon; forging a registration label; driving whilst disqualified; driving whilst unlicensed; driving an unregistered vehicle; and displaying number plates not issued to the vehicle being driven. She has been the recipient of benign sentencing dispositions, including community correction orders with conditions designed to treat her drug problem.
Significantly, in July 2013, she was fined for failing to answer bail; and in December 2015 she was dealt with for breach a suspended sentence of imprisonment. Importantly, the applicant’s most recent conviction, for offences relating to the possession of methamphetamine and cannabis, was imposed on 9 September 2016, just two days before the applicant was arrested for the alleged offences the subject of the present application.
In my view, there is an unacceptable risk that if she was released on bail the applicant would commit an offence whilst on bail or endanger the safety or welfare of members of the public.[7]
[7]Bail Act 1977, s 4(2)(d)(i).
The applicant’s history is peppered with multiple offences of the same or similar kind to those for which she seeks bail. Her failure to comply with a suspended sentence and her failure to answer bail, coupled with her persistent previous offending, shows an ongoing disobedience of the law. Thus, within two days of being dealt with for drug offences on 9 September 2016, she was involved in the commission of the offences for which bail is sought. And of very great concern, when police attempted to intercept her in the early hours of 11 September 2016, she fled from them in a motor vehicle.
An anticipated undertaking by her father to report any breaches of bail conditions was, in the end, not forthcoming.[8] Moreover, as I observed in the course of the application, there is scant material before the Court as to the nature of the therapy on offer from the Melbourne Centre of Healing.[9]
[8]In the affidavit of William May dated 17 October 2016, at [16], it was said that the applicant’s father ‘is prepared to make a formal undertaking to the Court to contact the police immediately upon becoming aware of any breach of bail conditions’. The Court was informed, however, that the applicant’s father was on holidays, and would not return until Saturday, 5 November 2016.
[9]Exhibit WM1 to the affidavit of Mr May dated 26 October 2016, was a letter apparently under the hand of Ryan Hassan of The Melbourne Centre of Healing, indicating that ‘a structured 12 week Addiction Recovery Program with ongoing support’ was available to the applicant ‘upon her release from remand’. Neither this letter, nor Exhibit A on the application — ‘Services and Price Guide, The Melbourne Centre of Healing’ — descended into much (if any) detail as to the services provided.
In those circumstances, I think that there is a significant risk that the applicant will commit further offences whilst on bail, and a risk that the safety or welfare of members of the public will be endangered (particularly given her past efforts to avoid apprehension), and that those risks cannot be rendered acceptable by the conditions proposed in the affidavit of her solicitor and in submissions.
Order
For these reasons, the application for bail is refused.
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