Re Application for Bail by Alex Repac
[2015] VSC 779
•14 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0171
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by ALEX REPAC |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2015 |
DATE OF JUDGMENT: | 14 December 2015 |
CASE MAY BE CITED AS: | Re Application for Bail by Alex Repac |
MEDIUM NEUTRAL CITATION: | [2015] VSC 779 |
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CRIMINAL LAW – Bail application – Alleged offending shortly after imposition of CCO and suspended sentence – Unacceptable risk of committing further offences – Application refused – No point of principle
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Page | David Barrese & Associates |
| For the Respondent | Ms K Hall with Ms M Vrymoet | Victoria Police Legal Services |
HER HONOUR:
The applicant, Alex Repac, aged 32, was charged on 6 October 2015 with the following offences;
(a) Burglary at a house on Elizabeth Drive, Sunbury (the ‘Elizabeth Drive property’), on 5 October 2015;
(b) Criminal damage in respect of a gun safe padlock at the Elizabeth Drive property on 5 October 2015;
(c) Burglary at a house on Melba Avenue, Sunbury (the Melba Avenue property’), on 5 October 2015;
(d) Being a prohibited person in possession of a firearm at Diggers Rest on 6 October 2015;
(e) Going equipped to steal at Diggers Rest on 6 October 2015;
(f) Receiving stolen goods at Diggers Rest on 6 October 2015; and
(g) Negligently dealing with proceeds of crime at Diggers Rest on 6 October 2015.
Victoria Police allege that at 8.30 am on 5 October 2015, the applicant and the co-accused, Luka Milinkovic, committed a burglary and attempted theft at the Elizabeth Drive property, with the co-accused using bolt cutters to cut a bolt on a gun safe in the garage of the premises.
Neighbours, who were husband and wife, became suspicious and interacted with the two offenders, noting that one of the two was taller than the other. Both males were holding mobile phones. The applicant is alleged to have been the shorter of the two men. He informed the neighbours that they were looking for a lost dog. A short while later, the taller man was observed walking towards the garage of the subject property. The husband then came out of his house and challenged the shorter male as to why his associate was in the backyard. The shorter male again mentioned the lost dog and walked away whilst speaking into his mobile phone. Meanwhile, sounds could be heard emanating from the garage, consistent with the attempt to break into the gun safe. When asked who he was calling on the phone, the shorter man told the neighbour that he was calling his associate to ask him to come out. When the neighbours called police, the taller man, who had by then emerged from the property, queried the need to do that and gave their names as Mick and Alex and apologised for causing stress.
The wife saw the two men leaving the area soon after in a silver Holden Captiva and recorded the car’s registration plate number as ZXH 669.
The applicant and the co-accused are then alleged to have swapped methamphetamine for a firearm. The information about this transaction comes from the account given by the co-accused to police. They are then alleged to have committed a burglary at the Melba Avenue property in Sunbury. The property at Melba Avenue belonged to a prisoner, Mr Yarwood, who was allegedly known to the applicant as a result of his recent imprisonment. Mr Yarwood was still in custody on 5 October 2015. Once again, proof of the applicant’s involvement in that burglary is heavily dependent on information obtained from the co-accused.
In the early hours of the following morning, the two offenders were located at an address in Diggers Rest with the silver Holden Captiva, and allegedly in possession of stolen property derived from the Melba Avenue property, as well as masks and gloves, housebreaking tools and a gun.
They were arrested, charged and remanded on 6 October 2015. The co-accused has not sought bail.
Constable Christopher Mitchell, who corroborated both police interviews, gave evidence that the co-accused made admissions that he had committed the burglaries and obtained the firearm in company with the applicant. The applicant denied participation in the crimes. Nevertheless, the applicant did admit to being with the co-accused in the vicinity of the Elizabeth Drive property at the time of the burglary there, but said he was there to help the co-accused search for his lost dog. He also admitted to being in the silver Holden Captiva which was driven away from the scene of that burglary.
The applicant relies on the following arguments in support of his application for bail:
(a) Firstly, there is a prima facie entitlement to bail under s 4(1) of the Bail Act 1977 (the ‘Act’).
(b) Secondly, the charges are contested and the applicant has not admitted his involvement in the offences.
(c) Thirdly, although the co-accused admitted to committing the offences and outlined the applicant’s role in carrying them out with him, at present the Crown do not possess a signed statement from the co-accused. Even if the Crown produced him as a witness at trial, the co-accused’s bad character would impact on the credibility of his evidence.
(d) Fourthly, it was argued that the evidence on all the charges is weak. In particular, the Melba Avenue burglary charge was based almost wholly on the co-accused’s account, and the gun found in the Holden Captiva may have been obtained by the co-accused without the applicant knowing it was in the car. Also, the applicant’s explanation to police about looking for a lost dog at the Elizabeth Drive property was said to match what he told neighbours at the scene.
(e) Fifthly, the applicant was admitted to a Community Corrections Order (‘CCO’) on 18 September 2015 and attended two appointments at the Moorabbin Community Corrections Centre as required. His attitude was assessed as cooperative, but the treatment and therapeutic conditions had not become fully operational at the time of his arrest on the present charges. The applicant did initiate drug rehabilitation counselling in the time between his date of release from ten months’ imprisonment on 5 August 2015 and the date the CCO was granted on 18 September 2015. He was expected to continue with that counselling and also to attend Taskforce as part of his CCO.
(f) Sixthly, the applicant disputed police information that the applicant had relapsed into methamphetamine use since leaving gaol. The applicant gave sworn evidence and produced a letter from his sister in support of the efforts he had made to remain drug-free, especially during visitation access to his son.
(g) Seventhly, the applicant had available a potential bail address in Caulfield South and the support of friends at that address. He also claimed an improved relationship with his sister, who lives in Westmeadows, next door to his mother. He also claimed an improved relationship with the mother of his six-year-old son, such that access visits had occurred after his release from Barwon Prison in August.
The applicant testified that, if bailed, he would return to live at the address in Caulfield South with Mr Naug Sr, a school teacher, and Mr Naug Sr’s son, Beau Naug, with whom he hoped to work in the scrap metal trade. When cross-examined, the applicant was vague about knowledge of any criminal offending by Beau Naug, and said that the two did not discuss those matters.
The applicant also said that he avoided using drugs when he had access to his son, and that he was keen to work. He said that he had started using amphetamines heavily in 2014, whereas in the years before that he had been addicted to alcohol, but that he had since stopped drinking.
The respondent opposes bail on the bases that the applicant poses an unacceptable risk of:
(a) failing to appear on bail;
(b) committing offences whilst on bail; or
(c) endangering the safety and welfare of the public.
In his affidavit opposing bail, the Informant, Senior Constable Kaminski, deposed that the evidence against the applicant regarding the recent charges includes the following:
(a) The applicant and the co-accused were arrested at a house on Cradles Road, Diggers Rest, where gunshots had been heard and reported to police. This address related to an ex-girlfriend of the applicant. When arrested, the applicant was found in the company of the co-accused and his ex-girlfriend.
(b) The silver Holden Captiva in the driveway was the same vehicle that was seen being driven away shortly after the burglary at the Elizabeth Drive property.
(c) When the vehicle was searched by police, it was found to contain the applicant’s Medicare card, proof-of-age card and personal prescription drugs.
(d) The vehicle also contained bolt cutters, two pairs of gloves, a hammer, a balaclava, a skull-face mask, items belonging to the co-accused, items allegedly derived from a burglary committed at the Melba Avenue property earlier that day, and a long arm shotgun from which identification markings had been removed. The co-accused admitted to police that they were looking for firearms to do ‘stick –ups’ to fuel their drug habit.
(e) The applicant has an extensive prior criminal history, which includes drug-related offending and the use of guns and violence. He was on a CCO and suspended sentence at the time he was arrested. The CCO was imposed for a number of offences, including burglary, commit indictable offences whilst on bail, receive stolen goods, possess prohibited weapon, and possess amphetamine.
The main arguments put forward in opposition to bail are:
(a) Firstly, the prosecution case on the present charges is not weak. The applicant’s explanation to police and neighbours that he was looking for a lost dog at the Elizabeth Drive property lacks credibility and is not presently capable of being confirmed. In fact, the co-accused admitted that they went to the Elizabeth Drive property for the purposes of committing the burglary. Further, the applicant has not adequately explained the presence of his possessions in the Holden Captiva on 6 October 2015. The bolt cutters found in that car arguably provide further circumstantial evidence linking the applicant to the Elizabeth Drive burglary. Although the police do not presently have a signed statement from the co-accused, the applicant's explanation to police for his presence near the Elizabeth Drive property at the time of the burglary involves the co-accused as an ingredient of his exculpatory account.
(b) Secondly, the applicant had only been released from gaol on 5 August 2015 and was on a recently imposed 12-month CCO, which the present offences would breach.
(c) Thirdly, the present offences would also breach a sentence of 12 months’ imprisonment, suspended for two years, as a result of a sentence imposed on 4 May 2015.
(d) Fourthly, the applicant’s criminal history is concerning, given the prevalence of crimes of burglary and gun-related offending and crimes of violence.
(e) Fifthly, the applicant’s regularity of offending gives no confidence in his prospects of rehabilitation at the present time.
(f) Sixthly, the police believe that the applicant has resumed his methamphetamine use and is motivated to commit serious offences to finance use of that substance.
(g) Seventhly, the applicant has previously been convicted of breach of bail and has also breached a CBO and a suspended sentence in the past.
(h) Eighthly, the applicant proposes an address which is unsuitable because it would place him in company with a person who himself has an extensive criminal history, is currently on bail in relation to burglary and theft, and who has an active warrant in relation to possessing a weapon.
In balancing the arguments for bail, I am mindful that the primary issue is the applicant’s capacity to desist from serious criminal activity. It is the risk of committing serious offences whilst on bail which is at the heart of the respondent’s opposition to bail.
The charge of burglary at the Elizabeth Drive property, whilst depending on circumstantial evidence, is complicated by the absence of a sensible explanation for the applicant’s presence at that location at the time of the burglary. If the co-accused was called as a witness by the prosecution, it is unlikely that any evidence given by him could assist the applicant or confirm the applicant’s account that they were at the premises searching for the co-accused’s lost dog.
The firearm, gloves and masks, along with the applicant’s possessions, found in the silver Holden Captiva when the applicant was subsequently arrested is also concerning. The co-accused told police that they wanted to obtain firearms in order to rob people for money to buy drugs. Although this evidence has not been confirmed in a signed statement, it is material that I can have regard to in assessing the criteria set out in s 4(3) of the Act and the risk that the applicant would commit offences whilst on bail.
Putting to one side the Melba Avenue burglary charge, where the victim’s statement is somewhat ambiguous, if convicted of the Elizabeth Drive burglary, the applicant would likely be found to be in breach of the recently imposed suspended sentence and CCO.
The residential address at Caulfield South where the applicant is proposing to live whilst on bail is unsuitable. The address is inhabited by Beau Naug and his father. Mr Naug Sr does not have a criminal history. However, Beau Naug is currently on bail in relation to burglary and theft, and has an active warrant in relation to possessing a weapon. His criminal history was tendered on the bail application. It involves offending similar in nature to the applicant’s present charges. His recent criminal history is suggestive of problems with drug dependency and amphetamine abuse.
The applicant was living at the Caulfield South address when he was observed loitering near the scene of the burglary at the Elizabeth Drive property on 5 October 2015.
The criminal history for the co-accused was also tendered by the respondent and revealed extensive convictions related to amphetamine use and weapons offences.
On the evidence presently available to me, I consider that there is an unacceptable risk that the applicant would commit offences of a serious nature if granted bail.
The conditions currently proposed do not satisfy me that the risk is rendered acceptable.
Bail is refused.
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