Re Application for Bail by Christopher Sharp
[2016] VSC 238
•8 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0020
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an Application for Bail by CHRISTOPHER BEAU SHARP | |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2016 |
DATE OF JUDGMENT: | 8 March 2016 |
CASE MAY BE CITED AS: | Re Application for Bail by Christopher Sharp |
MEDIUM NEUTRAL CITATION: | [2016] VSC 238 |
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CRIMINAL LAW – Application for Bail – Armed robbery – ‘Show cause’ situation – Cause not shown – Unacceptable risk of re-offending, endangering the safety or welfare of others, and interfering with witnesses – Bail refused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J H Shaw | Office of Public Prosecutions |
| For the Accused | Mr B Lindner | Ann Valos Criminal Law |
HIS HONOUR:
Introduction
By application dated 19 February 2016, the applicant, Christopher Sharp, makes an application for bail. On 3 February 2015, he was arrested and charged with the offences set out below. The most significant of those offences is armed robbery. Benjamin Sharp, the applicant’s brother, and Nathan Lack were also charged in relation to this offending.
The applicant initially applied for bail at the Melbourne Magistrates’ Court on 29 April 2015. This application was refused. A subsequent application, made on 27 January 2016 at the County Court of Victoria, was also refused. The trial of the charges on which the applicant was committed is listed to commence on 22 August 2016 in the County Court.
The applicant is required to show cause why his detention in custody is not justified. I have determined that the applicant has failed to show cause and that he should not be admitted to bail.
The charges
On 3 February 2015, the applicant was charged and remanded in custody on the following charges:
1) The accused at Sunbury on 1 December 2014 did rob Clinton Olliver of cash being property of McDonalds Stores Derrimut, Deer Park, Melton, Melton East, Sydenham, Calder Highway North, Calder Highway South, Sunbury and valued at $287 750 and at the time had with him a firearm namely a shotgun and handgun (armed robbery).
2) The Accused at Little River on 1 December 2014 intentionally and without lawful excuse did destroy property namely a Holden Commodore Redline Sedan, registration VRV-333 belonging to Paul Doherty and valued at $35 000 by setting fire to the said Holden Commodore and did thereby commit arson (criminal damage by fire—arson).
3) The Accused at Point Cook on 3 February 2015 possessed a drug of dependence namely ‘Ice’ (amphetamine) (possess amphetamine).
4) The Accused at Werribee on 3 February 2015 did dishonestly assist in the retention of goods, believing the goods, a U-Haul trailer, registration QKU-4708 to be stolen goods (handle/receive/retention of stolen goods).
5) The Accused at Werribee on 3 February 2015 did dishonestly assist in the retention of goods, believing the goods, a vent cover for vehicle registration SHB-451 to be stolen goods (handle/receive/retention of stolen goods).
The applicant was on bail for offences of dishonesty and violence when he was arrested. All those matters were finalised as of 22 October 2015 and the applicant’s sentences in relation to those matters have been served.
Principles
Pursuant to s 4(4)(c) of the Bail Act 1977 (‘the Act’), the applicant is required to show cause why his detention in custody is not justified. This is because the applicant has been charged with an indictable offence, in the course of committing which the applicant is alleged to have used or threatened to use a firearm.
Further, I must consider s 4(2)(d) of the Act, which states that the Court shall refuse bail if the Court is satisfied—
(i)that there is an unacceptable risk that the accused if released on bail would—
fail to surrender himself into custody in answer to his bail;
commit an offence whilst on bail;
endanger the safety or welfare of members of the public; or
interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;
…
(iii)that it has not been practicable to obtain sufficient information for the purpose of deciding any question referred to in this subsection for want of time since the institution of the proceedings against him.
I must consider s 4(3) of the Act, which sets out a non-exhaustive list of factors that the Court shall take into account in determining whether to grant bail—
(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment and background of the accused;
(c)the history of any previous grants of bail to the accused;
(d)the strength of the evidence against the accused;
(e)the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail;
(f)any conditions that may be imposed to arrest the circumstances which may constitute an unacceptable risk.
The parties’ contentions
The applicant seeks an order granting his release on bail on conditions that he reside at a particular address, report daily to a police station, comply with a curfew, attend counselling and Narcotics Anonymous meetings, not attend any point of departure, not leave Victoria, not contact any witnesses for the prosecution, and any other conditions that the Court deems appropriate.
In support of his application, the applicant tendered a psychologist’s report from Warren Simmons dated 12 February 2016, Narcotics Anonymous sign off sheets, 6 Notifications to Prisoner of Assay Results and two certificates of Youth Relapse Prevention Program completed by the applicant while he has been in custody.
The applicant relies upon eight matters which he says demonstrate why his detention is not justified. The first and primary factor is that the Crown does not have a strong case against the applicant. It has been submitted that the summary of evidence discloses that the Crown case is a circumstantial one and is principally based on the findings of telephone material.
Second, the applicant has strong family support and ties to the jurisdiction. He is currently in a de facto relationship with Ms Kimberly Iles who gave birth to his son in April 2015. They resided in Point Cook which is close to the applicant’s family home.
Third and fourth, it was submitted that if granted bail, the applicant will reside at 22 McDonald Drive, Winchelsea with his father who will employ him to operate excavation machinery at his own business, Sandcastle Transport. The proposed position requires him to work from 6am to 6pm Monday to Friday and as required on Saturday.
Fifth, it is proposed that the applicant attend an appointment on 17 March 2016 with a clinical psychologist, Ms Alison Mynard, for counselling as part of the relapse prevention strategy.
Sixth, it is submitted that the applicant is currently subject to a suspended sentence which provides him with an extra incentive to not commit further offences.
Seventh, a curfew at his place in Winchelsea is also added to the list of proposed conditions.
Last but not least, the applicant’s parents are willing to provide a surety by way of their family home in Point Cook.
The Crown opposes bail being granted on any conditions. Specifically, bail is opposed on the grounds that the applicant is said to be an unacceptable risk of committing further offences while on bail, an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice, and an unacceptable risk of endangering the safety and welfare of members of the public.
Considerations
Background of the applicant
The applicant is now 25 years of age. As revealed in the material tendered on his behalf, he is one of five children of parents of New Zealander origin. He was born in Moorabbin and grew up in Oakleigh until the age of seven. His family then moved to Melton and Burwood for several years before settling in Point Cook. The applicant has two older brothers, Brent, 35, and Benjamin, 29, one older sister, Natasha, 32, and one younger sister, Ebony, 16.
Mr Warren Simmons, a consulting psychologist, attended the applicant in prison on 10 February 2015. In a report to his solicitor, Mr Simmons describes the applicant reported that his childhood as ‘alright’, saying there was little to complain about. Mr Simmons reports that the applicant—
added that he has grown apart from his family in the last few years. He explained that after he met his partner and was living with her, he became very close to her mother Tina and following her death about 2 ½ years ago, he became more involved with her family.
In relation to the applicant’s education and employment history, he reports that the applicant commenced a pre-apprenticeship in cabinetmaking after completing year 12 whilst working part-time at a fish and chip shop. He then worked in the family business for some time before obtaining employment with a scaffolding company. He was made Field Supervisor after two years and started his own scaffolding business with his brother. The business lasted for six months and was handed over to his brother following the death of Tina. The applicant then went back to working in the family business. He reported that he was dealing cars at the factory in Russell Street Werribee prior to his incarceration. The applicant is currently working in a maintenance position at Port Phillip Prison.
The applicant has been in a relationship with Ms Kimberly Iles for the past six years. They have one son together. Ms Iles was arrested and interviewed in relation to attempting to pervert the course of justice and interfering with witnesses on behalf of the applicant. The Crown submits that this investigation is ongoing and the investigators are compiling a brief of evidence in relation to her involvement in the post offence conduct following the armed robbery.
Drug and alcohol history
The applicant was introduced to alcohol at the age of 15. He denied any excessive alcohol consumption in the past. He was introduced to methamphetamines by his brother-in-law following the death of Tina and became heavily dependent on it. He told Mr Simmons that ‘it started at a point or two a day’ and ‘increased to about a gram a day for a period of 18 months’. The applicant denied any other substance use and has not been involved in any other drug and alcohol rehabilitation programs other than Narcotics Anonymous in the past.
Prior convictions
He has a criminal history from October 2014 to the present. He has convictions for offences of dishonesty, drug, firearm and driving offences. Relevantly, his offences include breaching a bail undertaking and committing an indictable offence whilst on bail in October 2014 and October 2015. In addition, the applicant’s criminal history discloses other breaches of court orders. The breaches of these orders and the undertakings to which I have referred suggest that, at least in the past, the applicant has had no genuine respect either for his own undertakings or for orders that have been made in respect of him. The applicant was on bail and was also subject to a Community Corrections Order to which he was sentenced on 3 October 2014 when he was charged with the present offences.
Circumstances of the offending
At approximately 5:55am on 1 December 2014, Clinton Olliver, a covert cash carrier who provides cash-in-transit services to McDonald’s franchises, attended Sunbury McDonalds in a white Volkswagen van to deliver coins which he exchanged for notes, and to collect the store takings. Mr Olliver had been casually employed in the role for three weeks and was unarmed as he was waiting for his firearm licence to be approved. The van he was driving was not fitted with a safe.
At approximately 6:10am, Mr Olliver returned to his van carrying a single cash bag and was approached by two offenders on a motorbike. The applicant, allegedly the rider, was armed with a sawn-off side-by-side shotgun and the passenger, Nathan Lack was armed with a silver handgun. It is further alleged that after telling Mr Olliver to ‘Get down, get down’, the applicant and Nathan Lack entered the rear compartment of the van and removed eight bags of cash from the van and loaded them into a black Holden Commodore allegedly driven by Benjamin Sharp.
The three offenders then commenced to leave the scene. Nathan Lack climbed into the back seat of the Holden Commodore driven by Benjamin Sharp while the applicant left on the motorbike. As they fled, Mr Olliver saw the rear registration plate of the Holden Commodore was YJI-753, which had been reported stolen on 24 November 2014.
Shortly before 9:45am, it is alleged that Benjamin Sharp drove the Holden Commodore to Newtons Road in Little River before setting the vehicle alight. A short distance from where the vehicle was set alight, police located significant quantities of gold coins dropped at the roadside.
He gave a no comment record of interview to police.
Strength of the Crown case
It was submitted by counsel for the applicant that the Crown case is a weak circumstantial case based principally on telephone material. The summary of Crown case as set out in the summary of the evidence prepared by the informant, Detective Senior Constable Elise Douglas, includes the following allegations:
(a) The phone number that the applicant used during the armed robbery, 0467 961 648, was activated on 1 December 2014 at approximately 3am. The IP address used to activate the phone account is registered to 24 Lakeside Drive, Point Cook which is the home address of Benjamin Sharp. The phone was registered in the name of Sadi Haddara, an associate of the applicant;
(b) The only people the applicant had contact with on this number between 1 and 3 December 2014 were Nathan Lack, Benjamin Sharp, Kimberly Iles and Sasha Bryant;
(c) The applicant’s usual phone number was switched off between 2am and 8:52am on 1 December 2014;
(d) The phone used by the applicant maps from 24 Lakeside Drive, Point Cook to the McDonalds armed robbery and maps away from the location after the armed robbery which is consistent with the applicant returning to Point Cook area;
(e) There is CCTV footage of 24 Lakeside Drive that shows two motorbikes and a Subaru WRX leaving the address;
(f) Benjamin Sharp was the driver of the stolen Holden Commodore that was used in the armed robbery;
(g) Sasha Bryant, girlfriend of the applicant was intercepted on 9 November 2014 with the original registration to the stolen Holden Commodore used in the armed robbery;
(h) Kimberly Iles, Benjamin Sharp and his girlfriends all purchased new vehicles with cash, in denominations consistent with the cash stolen during the armed robbery;
(i) An interrogation of the mobile phone handset belonging to Kimberly Iles found a note saved in her handset: ‘01/12/2014 08:18 0467 961 648’;
(j) The SIM card packaging for the applicant’s number, 0467 961 648, was found at the applicant’s Russell Street factory, containing a handwritten note with Sadi Haddara’s name, an email address and the phone number. The applicant’s DNA was found on the handwritten note.
The case raised by counsel for the applicant, said to undermine any argument that the Crown case against him was strong, was that they don’t have a statement from an expert that brings together all the available material. Accepting the present limitations on my capacity to make a full assessment, on the summary of the evidence as currently presented, the case against the applicant can, in my view, fairly be described as reasonably strong.
Provision of a surety
If granted bail, the applicant’s parents are prepared to place their equity in residence where his mother and sisters currently reside as surety.
Availability of accommodation and employment
In support of the application for bail, the applicant’s father, Darryl Sharp, gave evidence at the hearing, confirming the availability of employment and accommodation to the applicant if he were to be released on bail, such employment to be on a full-time basis as an excavator in a paddock 21 kilometres from Winchelsea. The Crown cites police concerns relating to Darryl Sharp, who allegedly assisted Benjamin Sharp to evade police and disposed of a firearm used in the armed robbery.
Unacceptable risk of committing further offences whilst on bail
In maintaining that the applicant constitutes an unacceptable risk of reoffending, the Crown relies upon the following:
(a) The nature and sophistication of the offences with which the applicant is charged are very serious;
(b) The armed robbery was executed with the use of firearms which have not been recovered, despite an extensive number of search warrants having been executed on the applicant’s and his associates’ addresses.
(c) A number of additional firearms including two military style firearms and a sawn-off shotgun were recovered during the execution of these search warrants. Investigators are concerned with the number and type of firearms the applicant and his co-accused have access to.
(d) The applicant’s criminal behaviour steadily escalated over the 12 months prior to the armed robbery, with offences of dishonesty and violence;
(e) The applicant has a criminal history of convictions including contravening bail conditions and committing further offences whilst on bail; he was on bail and was also subject to a Community Corrections Order when he was arrested for the armed robbery;
(f) The applicant has set up a sophisticated CCTV system at the Russell Street factory where stolen motor vehicle parts were located;
(g) Over half of the money from the armed robbery, approximately $140 000–150 000 remains unaccounted for;
(h) Even though he has agreed to strict bail conditions which include working 12 hours a day at Winchelsea, 9 hours a day curfew, daily reporting to Winchelsea police station, attending Narcotics Anonymous and psychological counselling, they are unrealistic and unmanageable without a driver’s licence.
Mr Linder, who appeared for the applicant presented an elaborate argument as to why the Court can have great confidence that the applicant will abide by his bail conditions, commit himself to drug counselling and refrain from further offending. That argument was founded upon the assertion that he will be working and living with his father at Winchelsea who is willing to drive him to the police station daily and to the various appointments as required. This contradicts the evidence of Detective Senior Constable Paul Jones who is one of the three informants in this matter. Upon questioning, Detective Senior Constable Jones stated that he was told by a contractor of Sandcastle Transport, Mr Dominick Michael Tropeano, that the applicant will be required to work on a site at the Port Arlington Breakwater. His role will include maintaining the machinery onsite and greasing equipment. The applicant’s father denied that the applicant will be working in Port Arlington on a permanent basis.
Furthermore, Mr Linder argues that a surety of the applicant’s family home will also go some distance to ameliorating that risk. The applicant’s family doesn’t own another house and any breach of bail would put his family home in jeopardy.
I am not much persuaded by these arguments. On the basis of the evidence available, it appears that the whole criminal enterprise had commenced from the parental address in Point Cook. In addition, there are telephone intercept material that implicated Darryl Sharp as the person who may be responsible for disposing one of the firearms used in the armed robbery.
Moreover, the applicant’s history in relation to obeying court orders is disheartening. He has been found guilty twice for breaching conditions of bail and committing further offences whilst on bail.
In summary, I am not satisfied that simply allowing the applicant to work and live with his father in Winchelsea, and requiring him to attend counselling, will reduce the risk of him committing further offences whilst on bail to the point where it is acceptable. I have grave doubts that the proposed conditions of bail can be satisfactorily met. I would also regard a reporting condition as necessary.
Unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice
In respect of the applicant being an unacceptable risk of committing offences and interfering with witnesses, they are, in my view, interrelated. The risk is that the offences he may commit relate to the witnesses in this case. In the ‘Summary of the evidence’ prepared by Detective Senior Constable Elise Douglas, she states that—
Investigators have been monitoring the applicants’ prison ARUNTA calls with Kimberly Iles and have concerns for the safety and welfare of the prosecution witnesses who have made statements against the applicant in relation to the McDonalds armed robbery.
The most significant of these occurred on 21 February 2015, where the applicant told Kimberly Iles to pass on a message to a female prosecution witness that, ‘When he [the applicant] gets bail, she will have the worst day of her life.’ Moreover, on 7 March 2015, after finding out that Brooke Craig, a girlfriend of Benjamin Sharp, had made a statement to police, the applicant told Kimberly Iles, ‘Doesn’t Brooke know what will happen to her when I get out?’
Detective Senior Constable Elise Douglas further states that investigators have also been monitoring the prison phone calls of Benjamin Sharp and Nathan Lack and believe that both co-accused are also attempting to interfere with witnesses.
The applicant has recognised that his continued detention and the prosecution case depend on the evidence of some of his close associates, some of whom have provided statements to police. He has noted that the elimination of these witnesses may undermine the prosecution’s case. I must not release the applicant if he presents an unacceptable risk and having heard this material, I am of the view that the applicant represents an unacceptable risk of interfering with witnesses.
Conclusion
I have carefully considered the material tendered on behalf of the applicant and what has been said in court by the applicant’s father and by his counsel. When one considers all of the applicant’s antecedents, including his previous breaches of bail, there is an unacceptable risk that the applicant if released on bail, even with the stringent conditions suggested by his counsel, would commit an offence while on bail. There is also, in my view, an unacceptable risk that he would interfere with Crown witnesses or endanger the safety and welfare of members of the public. In the circumstances, the applicant has not shown cause why his detention in custody is not justified. Accordingly his application for bail is refused.
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