Re Angus
[2020] VSC 437
•16 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0158
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by JARROD KEITH ANGUS |
---
JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2020 |
DATE OF JUDGMENT: | 16 July 2020 |
CASE MAY BE CITED AS: | Re Angus |
MEDIUM NEUTRAL CITATION: | [2020] VSC 437 |
---
CRIMINAL LAW – Bail – Applicant charged with Schedule 2 offence whilst on community correction order – Need for exceptional circumstances justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Bail refused – Bail Act 1977, s 3AAA, s 4, s 4AA, s 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Barreiro | Criminal Lawyers Geelong |
| For the Respondent | Ms S Coombes | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
Jarrod Angus, the applicant, aged 35 years,[1] is charged with stalking his former female partner, ‘SC’, between September 2019 and 22 March 2020, and again on 30 September 2020, and with offences against her on five distinct occasions: late February 2020, 3 March 2020, 4 March 2020, 22 March 2020 and 30 March 2020.
[1]His date of birth is 25 September 1984.
In summary, the relevant charges are as follows:
Charge Date Offence 1 September 2019 to 22 March 2020 Stalking[2] 2 February 2020 Reckless conduct endangering death[3] 3 Reckless conduct endangering serious injury[4] 4 Common assault[5] 5 3 March 2020 Reckless conduct endangering death 6 Reckless conduct endangering serious injury 7 Recklessly causing injury[6] 8 Intentionally causing injury[7] 9 Common assault 10 4 March 2020 Common assault 11 22 March 2020 Assault by kicking[8] 12 Common assault 13 Damaging property[9] 14 30 March 2020 Harassing a witness[10] 15 Stalking [2]Crimes Act 1958, s 21A(1).
[3]Crimes Act 1958, s 22.
[4]Crimes Act 1958, s 23.
[5]Summary Offences Act 1966, s 23.
[6]Crimes Act 1958, s 18.
[7]Crimes Act 1958, s 18.
[8]Summary Offences Act 1966, s 24(2).
[9]Crimes Act 1958, s 197(1).
[10]Summary Offences Act 1966, s 52A.
On two previous occasions, 23 March 2020 and 18 June 2020, the applicant has been refused bail in the Magistrates’ Court. On both those occasions the magistrate found, first, that there were no exceptional circumstances justifying the grant of bail, and, secondly, that there were no bail conditions available that would render the applicant an acceptable risk. Charges against the applicant are next listed for a contested committal hearing in the Geelong Magistrates’ Court on 11 November 2020.
Accepting that he must establish exceptional circumstances justifying the grant of bail, the applicant now seeks bail from this Court.
That application is opposed. The respondent contends that exceptional circumstances have not been established, and that, in any event, the applicant poses an unacceptable risk that he would endanger the safety or welfare of SC, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice.
For the following reasons, I consider that the application should be refused.
Alleged offending
The conduct alleged against the applicant has some very disturbing aspects. In very brief summary, the applicant’s offending is said to include the following conduct.
Late February 2020
In late February 2020, SC was in crisis accommodation in a Geelong motel. The applicant went to the motel room where SC was staying. He accused her of cheating on him, and tried to find evidence of cheating by inspecting SC’s phone and documents. The applicant screamed at SC, and in a rage placed two hands on her throat and started to choke her. SC, who is only 52 kilograms in weight, was easily overpowered. In her police statement, SC describes the applicant letting her go when she went limp. She heard the applicant say, ‘Shit I nearly killed you’. The applicant then left the room for a couple of minutes before returning and slapping SC with the palm of his hand. He then went through her bag and found a pair of scissors. The applicant said, ‘Do you want me to shave it? I can if you like’. He then cut chunks of hair from the top of SC’s head.
3 March 2020
On 3 March 2020, SC was once more in crisis accommodation in a Colac motel. The applicant went to her motel room in an angry state and again accused SC of cheating. He attacked SC, who was sitting on the bed, and placed a pillow over her face to restrict her breathing. SC told police that when she ran out of breath and was unable to fight, the applicant removed the pillow and punched her in the nose, causing it to bleed heavily. He then shouted, ‘See what you made me do’. Whilst attacking SC, the applicant was calling her a ‘slut’ and a ‘cunt’. The applicant then left the motel to collect his children for an access visit. A short time later he texted SC’s phone and requested $20 so he could give his two daughters some food from McDonald’s. SC transferred the money so that the girls would not go hungry. The applicant then returned to the motel with the two girls and food, and acted as if nothing happened.
4 March 2020
On 4 March 2020, the applicant and SC were inside a caravan with others. The applicant demanded that SC sit on a lounge in the caravan. He then screamed at her to leave, but, when she got up to leave, the applicant screamed at her to sit back down. The applicant laughed at SC whilst she cried. He said, ‘Tell me the truth that you have cheated on me’, and picked up an electric shaver, threatening to cut all of SC’s hair off. The applicant attempted to turn the shaver on but it did not work as the battery was flat. He then got out scissors and said, ‘Tell me the truth or I will cut all your hair off you anyway’. SC was crying and said, ‘It doesn’t matter what I tell you. You won’t believe me anyway’. The applicant then asked the other people what he should do. He then cut SC’s hair in front of everyone, humiliating her. SC told police that she felt completely helpless trying to get away from the applicant or trying to stop him.
22 March 2020
On Sunday, 22 March 2020, SC was asleep in a caravan in the back yard of premises in Colac. She was awakened by the applicant who was screaming abusive language at her. He called her ‘syphilis’, because he believed that she had cheated on him. The applicant then demanded that SC give him money. He was shouting, ‘You are only going to make it worse for yourself, you know what will happen’. SC tried to get out of bed but was grabbed by the hair. The applicant then struck her to the back of the head with an open palm. He then kicked SC in her right knee and threw her out of the caravan. SC asked for her shoes — a near new pair of ‘Nike Air Infinity’ sports shoes, which have a large air bubble at the rear. The applicant then obtained the shoes, held them up in front of SC and slashed each side of both shoes with a knife, causing them to deflate. He then threw the shoes over the back fence and told SC to ‘fuck off’. Responding police observed SC in bare feet being followed by the applicant.
30 March 2020
Whilst in custody the applicant has posted a large number of letters addressed to SC at her grandmother’s house. The last letter was received on 5 May 2020. Although most appear at face value to be relatively innocuous, a letter dated ‘16/4/20’ appears to be designed to intimidate SC in relation to evidence that she may give. It includes the following:[11]
Then you ever think its going to bring out lots!! Jame’s and anything else Because Niahum or who ever it is will have to put you in the Box against Me so it [is] going to hurt one of us more than the other??!
Im not sure if you understand how much this is going to Be put on you??
I don’t want to Do it to you But Niahum said we have to if I wanted to get less than a year so it’s what you did 4 what Im unsure?? God only know or u
[11]Spelling, grammar, syntax and punctuation as in original.
Criminal history
The applicant has multiple convictions, including for burglary (2002, 2003), theft (2002, 2005), obtaining property by deception (2005), hindering police (2005), firearms offences (2005, 2020), trafficking cannabis (2013), possessing cannabis (2013, 2020), using amphetamines (2015), possessing ecstasy (2020), dealing in the proceeds of crime (2015), possessing a prohibited weapon (2015), criminal damage (2019) and damaging a police gaol (2020). Of some significance, the applicant has a number of convictions for crimes of violence, including intentionally causing injury (2014), assault with a weapon (2014), recklessly causing injury (2015), making a threat to kill (2015, 2016), false imprisonment (2015), robbery (2016) and unlawful assault (2019).
Also of some significance, the applicant has failed to comply with community based orders (2003, 2005) and community correction orders (2015, 2016, 2020); has breached suspended sentences of imprisonment (2015); has committed an indictable offence whilst on bail (2015); and has contravened a family violence intervention order (2019).
At the time of the alleged commission of the offences on 22 March and 30 March 2020, the applicant was subject to a community correction order imposed on 6 August 2019 for criminal damage, unlawful assault and contravening a family violence intervention order, and another imposed on 5 March 2020 for robbery and making a threat to kill.
Evidence in the application
In support of the application, the applicant relied on an affidavit affirmed by his solicitor on 7 July 2020, and the viva voce evidence of two witnesses, Amie Sibson and Brian Hamilton.
Amie Sibson is a nurse by training, and has known the applicant for several years. She gave evidence that she was willing to have the applicant reside in a spare room in her house whilst on bail, and to drive him to work at Mr Hamilton’s farm. Ms Sibson said that she was ‘happy’ to have the applicant live with her and her 10 years old daughter, and had no concerns about that arising from the applicant’s prior history. Further, Ms Sibson said that she was prepared to give an undertaking to the Court to report any attempt by the applicant to contact SC, or any failure by him to abide by a curfew.
Brian Hamilton has known the applicant for more than 30 years. They had previously lived with each other and worked together. He was able to offer the applicant paid employment on his mother’s and step-father’s farm Mr Hamilton gave evidence that he would ‘appreciate’ the applicant working at the farm as a labourer. There was a lot to do — lawn-mowing, wood-chopping, fencing and the like — and, since he was an interstate truck-driver, it was difficult for Mr Hamilton to provide the ongoing maintenance required. He had spoken to his mother — who had known the applicant as long as he — and step-father, and they were content to have the applicant work at the property. Mr Hamilton said that he had no concerns arising from what he knew of the applicant’s past misbehaviour, and was willing to give an undertaking to the Court to report any drug use by the applicant.
The respondent relied on an affidavit affirmed on 14 July 2020 by a solicitor employed by the Office of Public Prosecutions having carriage of the applicant’s matter. I need not recount its contents.
The applicant’s submissions
Counsel for the applicant argued that four circumstances established exceptional circumstances justifying the grant of bail:
· the prosecution’s case is weak, particularly with respect to the most serious charges of reckless endangerment;
· there will be undue and inordinate delay in bringing this matter to trial because of the COVID-19 pandemic;
· the applicant may spend more time on remand than any ultimate sentence, particularly if the most serious charges do not ‘stick’; and
· there is a stable place of abode and the availability of work.
In contending that the prosecution case is weak, the applicant’s counsel submitted that there is a lack of evidence to corroborate SC’s version of events. It was submitted that some of the more serious charges are misconceived and could not be made out, even taking the evidence at its highest. Hence, the first charge, stalking, is said to have occurred while the applicant and SC were in a relationship and maintaining close personal contact on a daily basis. Moreover, so it was submitted, the reckless endangerment charges (charges 2, 3, 5 and 6) are not supported by evidence that SC was placed at an ‘appreciable’ risk of death or serious injury (as opposed to a remote or mere possibility).
Further, the applicant’s counsel submitted that the applicant does not have a poor history of compliance with bail conditions, in that he has one prior conviction for committing an indictable offence on bail, and no prior convictions for failing to answer bail. Although at the time of the alleged offending the applicant was serving two separate community correction orders, he was not on bail for any offences.
As to delay, it was submitted that the applicant is likely to spend a significant period of time on remand if bail is refused. He has a contested committal hearing listed at Geelong Magistrates’ Court on 11 November 2020. Should the applicant be committed for trial it is likely that there will be further delay. Given the current pandemic, the applicant will not be able to be tried in the County Court until 2022. It was submitted that, if the most serious charges are not made out, there is a risk that the applicant will spend more time on remand than pursuant to any eventual sentence.
It was submitted that the applicant does not present an unacceptable risk of committing offences whilst on bail. He does not have an extensive history of doing so, and has only one prior conviction for committing an indictable offence whilst on bail (on 19 January 2015). Furthermore, it was submitted that the applicant does not present an unacceptable risk of interfering with witnesses. The letters sent from prison by the applicant to SC were not in breach of any intervention order and contained no threat of violence, and there is no unacceptable risk of endangering SC’s safety. Since an intervention order has been in place — it was imposed on 5 May 2020 — there has been no contact between the applicant and SC, and no breaches of the order.
Finally, it was submitted that any risks could be rendered acceptable by conditions including as to residence; supervision by an acquaintance, Aimee Sibson (a nurse with training in the treatment of alcohol and drug abuse); a curfew; compliance with the intervention order and any extant community correction order; and abstinence from illicit drugs.
The respondent’s contentions
As I have mentioned, the respondent opposes bail on the basis that the applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail. Further, having regard to the substance of the allegations against the applicant, and his prior criminal history, the respondent also contends that the applicant poses an unacceptable risk of endangering the safety and welfare of SC; committing an offence while on bail; and interfering with a witness or otherwise obstructing the course of justice.
Legislative regime
Section 4 of the Bail Act 1977 (‘the Act’) makes plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail.
As I have indicated, the applicant is alleged to have committed the offences on 22 March and 30 March 2020 when subject to a community correction order. For present purposes, stalking is a Schedule 2 offence.[12] Hence, by virtue of s 4AA(2)(c)(iv), the exceptional circumstances test applies to the decision of whether to grant bail to the applicant.[13] In those circumstances, by reason of s 4A(1A) the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail, the burden of so satisfying the Court resting with the applicant (s 4A(2)). And in considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’ (s 4A(3)).
[12]Stalking is included in item 8 of Schedule 2, which is in the following terms:
8. An offence against section 21A(1) of the Crimes Act 1958 (stalking) and—
(a)the accused has within the preceding 10 years been convicted or found guilty of an offence against that section in relation to any person or an offence in the course of committing which the accused used or threatened to use violence against any person; or
(b)the bail decision maker is satisfied that the accused on a separate occasion used or threatened to use violence against the person whom the accused is alleged to have stalked, whether or not the accused has been convicted or found guilty of, or charged with, an offence in connection with that use or threatened use of violence.
[13]The respondent also sought to invoke items 18 and item 23. In my view, however, it is unnecessary to consider these items.
The unacceptable risk test is found in s 4E(1), which requires the court to refuse bail if the ‘prosecutor’ satisfies the court[14] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
[14]Subsection 4E(2).
When considering whether any relevant risk is unacceptable, s 4E(3) also requires the court to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Section 3AAA of the Act spells out surrounding circumstances, so that (so far as relevant) the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(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;
(f)whether there is in force—
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(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;
...
Finally, when interpreting the Act, the court is required by s 1B to take into account (among other things) that:
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
Discussion
In my view, none of the circumstances relied upon by the applicant — the supposed weakness of the prosecution case, delay and community support — alone or in combination constitute exceptional circumstances justifying the grant of bail.
With respect to the charge of stalking SC on 30 March 2020 (charge 15), the letters forming the backbone of the charge — which I have read — very much speak for themselves, so that proving that charge will not be dependent upon SC’s credibility and reliability. Particularly when assessed against the backdrop of the applicant’s conduct towards SC leading up to the sending of the letters, I consider that the prosecution case on charge 15 cannot properly be characterised as weak. Indeed, focusing solely on the letters, it seems to me that a tribunal of fact would be justified in finding that some of the content of the letters was calculated to cause mental harm to SC, or to arouse apprehension or fear in her for her safety.[15] The letter of 16 April 2020 in particular might be said to have those characteristics. At the very least, that letter appears designed intimidate SC, and to discourage her from giving evidence in proceedings against the applicant (which is of course relevant to whether the applicant poses an unacceptable risk of interfering with witnesses or obstructing the course of justice).[16]
[15]See Crimes Act 1958, ss 21A(2) and (3).
[16]I note that the respondent’s counsel acknowledged during the hearing that the first charge of stalking had ‘weaknesses’.
Moreover, I do not accept that the reckless endangerment charges (charges 2, 3, 5 and 6) are not supported by evidence that SC was placed at an ‘appreciable’ risk of death or serious injury. If SC’s evidence is accepted, the February 2020 episode of violence involved the applicant choking SC until she went limp, acknowledging that he had nearly killed her. And in the violence perpetrated on 3 March 2020, the applicant placed a pillow over SC’s face to restrict her breathing. To my mind, if SC’s evidence is accepted on these matters, a tribunal of fact plainly is capable of satisfaction to the criminal standard that the applicant’s conduct exposed SC to an appreciable risk of death or serious injury.[17]
[17]R v Nuri [1990] VR 641; R v Abdul-Rasool (2008) 18 VR 586.
Given that I do not regard the essential prosecution case as weak, the first plank relied upon by the applicant to establish exceptional circumstances justifying the grant of bail falls away.
With respect to delay, current information is that the applicant’s charges will next be before a court in a little under four months’ time, on 11 November 2020. Such delay is neither inordinate nor exceptional. On the assumption that the applicant’s committal proceeds that day, should he be committed for trial (or sentencing) on any of the indictable charges that he faces, the question of bail will fall to be considered afresh by the magistrate. In so doing, the magistrate will no doubt have regard to any delays encountered in the County Court by reason of the current pandemic.[18]
[18]See El Nasher v DPP [2020] VSCA 144, [42]–[43] (Priest, T Forrest and Weinberg JJA),
I should add that — on the state of the material presently before me — I do not accept the suggestion that it is probable that the applicant’s time on remand will exceed any sentence imposed upon him. In my opinion, should the applicant ultimately be sentenced for reckless endangerment (whether of life or serious injury) and injury charges (whether intentional or reckless) on the factual basis earlier described, it is very likely that a sentence of imprisonment will be imposed upon him, and that any such sentence will be measured in years. In my view, any such sentence in all likelihood will exceed any time he will spend on remand (even making due allowance for the anticipated delays flowing from the current pandemic).
As to the final matter relied upon to establish exceptional circumstances — a stable place of abode and work are available to the applicant — those factors alone cannot establish exceptional circumstances justifying the grant of bail. Given that I reject both the suggestion that the prosecution case is weak, and the notion that the anticipated delay in finalising the charges will be inordinate, the availability of a place to live and of gainful employment cannot in isolation lead to bail being granted.
Even were I satisfied that the applicant had established exceptional circumstances, however, I would still refuse bail, since I consider that there is an unacceptable risk that the applicant would, if released on bail, ‘endanger the safety or welfare of any person’; ‘commit an offence while on bail’; or ‘interfere with a witness or otherwise obstruct the course of justice’.
Overall, the applicant’s conduct towards SC — assuming the accuracy of her account — was at different times and to different degrees nasty, dangerous, vindictive and manipulative. Based on the nature of his conduct towards SC over a protracted period, I consider that there is a high risk that, if the applicant were released on bail, SC’s safety and welfare would be endangered. In my opinion, there is a real and unacceptable risk that he would attack SC physically. Additionally, given the nature of some of the content of the letters sent to SC by the applicant, I consider there to be an unacceptable risk that the applicant would interfere with a witness, SC, or otherwise obstruct the course of justice in connection with the charges that he faces. His past conduct has shown that he has been intent on terrorising her, and I have no optimism that his release on bail would provoke an epiphany.
Acknowledging that the applicant has the support of Ms Sibson and Mr Hamilton, I do not consider that the proposed conditions of bail urged by the applicant’s counsel are sufficient to render the relevant risks acceptable. Given the applicant’s history of contravening court orders — including community based orders, community correction orders, suspended sentences of imprisonment and family violence intervention orders — and of committing an offence whilst on bail, I have no confidence whatsoever that the applicant would comply with any conditions of bail that this Court might impose, no matter how stringent.
Bail must be refused.
----
0
3
0