Re Application for Bail by Cindy Anne Taylor
[2015] VSC 777
•24 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0130
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by CINDY ANNE TAYLOR |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 September 2015 |
DATE OF RULING: | 24 September 2015 |
CASE MAY BE CITED AS: | Re Application for Bail by Cindy Anne Taylor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 777 |
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CRIMINAL LAW – Bail – Applicant at risk of re-offending – Nature of instant offending not of high level of seriousness – Prosecution case weak – Conditions sufficiently address risk of re-offending – Applicant remanded for significant period – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Dempsey and Mr L Richter | Stary Norton Halphen |
| For the Respondent | P McKimmie | Office of Public Prosecutions |
HER HONOUR:
The applicant, Cindy Taylor, applies for bail following her remand in custody on 5 August 2015 from the Magistrates’ Court.
She was born on 16 October 1967 and is aged 47.
She was remanded following being charged with the offence of Contravene Final Personal Safety Intervention Order pursuant to s 100 of the Personal Safety Intervention Orders Act 2010 (Vic).
Background
The circumstances which led to the refusal of bail and remand in custody in the lower court are set out in the affidavit of the informant, Senior Constable Wilkins, sworn on 6 September 2015.
The applicant has had a long-standing obsession with the principal complainant, Mr Andrew Pappas, which has involved harassment of him, his parents, Mr Chris Pappas and Mrs Polexini Pappas, who are the other complainants, and even a former girlfriend of Andrew Pappas. Andrew Pappas has been the main target of the obsessive behaviour of the applicant.
More recent events relevant to this obsessive behaviour include that, on 31 March 2014, the applicant was alleged to have sent a Facebook friend request to the principal complainant’s new Facebook account, thereby engaging in stalking and acting in breach of the Final Personal Safety Intervention Order (‘Final PSIO’) that had been issued to protect the principal complainant. The Final PSIO had been originally issued as an Interim Personal Safety Intervention Order (‘Interim PSIO’) on 24 January 2013, concomitantly with orders issued in respect of the principal complainant's parents (together the ‘PSIOs’). This Interim PSIO was made final on 4 December 2013 and is to expire on 4 December 2018.
The applicant had been previously arrested, interviewed, and charged on 23 July 2013 with Stalking and Contravene Interim Personal Safety Intervention Order, relating to numerous cyber-entries on social media sites about the principal complainant, his family, and his former girlfriend, posted between January and July 2013.
When the applicant was arrested on 23 July 2013, she was remanded in custody and remained in prison until 18 October 2013.
18 October 2013 conviction
On that date, she was self-represented at the Ringwood Magistrates’ court and applied for bail, but then pleaded guilty to the charges of Stalking and Contravene Interim Personal Safety Intervention Order.
She was convicted and sentenced to 180 days’ imprisonment, suspended for 12 months, with 86 days reckoned as served (the ’18 October 2013 conviction’). She was then released from prison.
During her period of remand between 24 July 2013 and 18 October 2013, the applicant was alleged to have continued to offend against the Pappas family by writing false and derogatory letters, connected with the educational employment of Mrs Pappas, to the Department of Education and related bodies.
On 26 October 2013, eight days after her release from prison, the applicant was then alleged to have accessed a false Facebook page in the name of the principal complainant and to have deleted the various posts on that account although she had been told by the magistrate on 18 October 2013 that she was not to access that account. That account was alleged to have been falsely created by the applicant at some earlier stage and was not accessible to the principal complainant.
It was against the background of having been imprisoned for stalking and having been placed on a suspended sentence that, on 31 March 2014, the applicant was alleged to have sent a Facebook friend request to the new Facebook account of the principal complainant, thus breaching the Final PSIO. This offence, if proved, was also said to be a breach of suspended sentence.
Appeal from Final PSIO
The Final PSIO was appealed by the applicant on 19 June 2014 to the County Court, but the appeal was abandoned by the applicant at court on that date. The Final PSIO, therefore, remains in place.
The 19 June 2014 charges
The applicant was then interviewed and charged on 19 June 2014 with several charges related to stalking, breaching Personal Safety Intervention Orders and related conduct, which derived from: the letters sent from prison in August and September 2013; the accessing of the Facebook page on 26 October 2013; and a charge related to sending a Facebook friend request on 31 March 2014, in breach of the Final PSIO granted on 4 December 2013 (the ’19 June 2014 charges’).
During the interview regarding the above allegations at Heidelberg Police Station, the applicant appears to have made some admissions or implied admissions to some of the conduct alleged to found the charges. These matters are still awaiting determination in the Magistrates’ Court, having been adjourned on several occasions.
Appeal from 18 October 2013 conviction
In the meantime, the applicant has sought to appeal her 18 October 2013 conviction, despite her apparent plea of guilty on that date. I am told by Mr Dempsey that leave has been granted to pursue that appeal, but that the appeal is subject to referral by the Crown on a question of law to the Court of Appeal, which is currently listed for 30 September 2015. This may lead to a delay in the finalising of the appeal from the 18 October 2013 conviction.
The breach of suspended sentence charge is only capable of being alleged if the County Court affirms the conviction imposed on 18 October 2013.
Chloe Black communication
Further conduct founding the charge for which the applicant has been remanded is said to have occurred on 11 May 2015, when the applicant allegedly contacted the principal complainant through the agency of one Chloe Black, by having Ms Black contact the principal complainant by Facebook and passing on a request for him to meet the applicant in the city (the ‘Chloe Black communication’). That matter is listed for final hearing on 16 November 2015 at Heidelberg Magistrates’ Court as a contested hearing.
It is argued by the applicant that the evidence supporting the charge is extremely weak, because the police have not been able to obtain a statement from Ms Black, so there is no independent confirmation of a connection between the Facebook call and the applicant.
The respondent concedes that there is a weakness to that case, but argues that the hearsay content of the Facebook call is arguably admissible.
This not a matter that I need to decide for the purposes of the bail application, given that the concession of the respondent about the absence of a statement from Ms Black gives rise to a weakness in the case.
There was a delay in apprehending the applicant in respect of the charge concerning the Chloe Black communication, due to apparent police internal resourcing decisions. The applicant was ultimately arrested, interviewed and charged on that matter on 5 August 2015 but made no admissions.
On 15 June 2015, the applicant attempted to obtain a Family Violence Intervention Order against the principal complainant, but the application was refused and Magistrate Bentley determined that any future applications by the applicant against the complainant were to come back before him.
The 19 June 2014 charges are still awaiting finalisation and are currently set down for 26 November 2015 at Heidelberg Magistrates’ Court, but it is likely that the matter will be further adjourned pending the outcome of the County Court appeal from the 18 October 2013 conviction.
Respondent’s case
The main arguments put forward by the respondent have been advanced in the affidavit sworn by Senior Constable Wilkins.
She deposes her view that there is an unacceptable risk that the applicant will committing offences whilst on bail. It is also said that the applicant is at risk of contacting witnesses for the prosecution whilst on bail.
In essence, what is alleged is that the applicant is likely to breach her bail by attempting to make contact with the principal complainant, and in so doing, she would also be interfering with a prosecution witness, as well as committing further breaches of the PSIOs.
Senior Constable Wilkins notes that the applicant was already on bail when the alleged May 2015 breaching offence occurred concerning the Chloe Black communication.
She deposes at paragraph 45 of her affidavit that the applicant shows disregard for court orders by continuing to breach the PSIOs and continuing her obsession with the principal complainant.
She notes that the applicant previously breached an intervention order in respect of her son, Aslen, who was then in foster care, and that, having been convicted of that offence, she served 36 days in gaol as part of a 90 day sentence, the remainder of which was suspended.
Applicant’s case
The arguments put forward by the applicant include that the respondent has the onus of establishing unacceptable risk under s 4(2)(d) of the Bail Act 1977 (Vic), and that the applicant was refused bail in respect of a single summary offence. There is a presumption in favour of bail that has not been displaced by the respondent. It was argued that the only conduct alleged against the applicant which amounted to direct attempted contact with the principal complainant in the period since October 2013 was a Facebook friend request on 31 March 2014, and the subsequent alleged Chloe Black communication on 11 May 2015.
It was noted that the Facebook friend request of 31 March 2014 preceded the arrest and laying of charges on 19 June 2015. It is therefore only the Chloe Black communication of 11 May 2015 that is capable of constituting a breach of the bail conditions imposed in June 2014.
It was also argued that the 11 May 2015 charge based on the Chloe Black communication has little prospect of success in the absence of a statement from Ms Black, and that no statement has been forthcoming in the months since 11 May 2015.
It was also argued that the police did not prioritise the arrest and remanding in custody of the applicant following the Chloe Black communication, and that despite the fact that the applicant was reporting each week to Sunbury Police Station and attended court for other matters in June 2015, she was not arrested and interviewed about the Chloe Black communication until 5 August 2015.
It was further argued on behalf of the applicant that no further offending was alleged to have taken place in the period between 11 May 2015 and 5 August 2015.
It was pointed out that the alleged Chloe Black communication came almost a year after the earlier alleged Facebook friend request of 31 March 2014.
The applicant was said to be facing a charge which involved conduct at the lower end of seriousness for offences of stalking.
It was argued that there was likely to be a potential delay in the finalisation of the County Court appeal. It was unclear whether this would impact the currently listed dated of 16 November 2015 for the charge arising from the Chloe Black communication.
It was further argued that the applicant has the offer of stable accommodation with her son at an address in Sunbury,[1] and that the conditions set out in the last paragraph of the respondent’s affidavit would sufficiently address the risk of further offending alluded to by the respondent. It was argued that some of those conditions went further than was necessary.
[1]The applicant’s son attended the bail hearing during the course of the morning.
The applicant also relied on the case of Re Magee[2] in support of her application.
[2][2009] VSC 384.
Decision
In considering the matters put forward by the applicant and the concerns raised by the respondent in opposition to bail, I am persuaded that bail should be granted.
I note that the onus is on the respondent to show that there is an unacceptable risk, and I take into account as significant the following factors:
(a) Firstly, the charge for which bail was refused in respect of the Chloe Black communication appears to have little prospect of success on the present state of the evidence.
(b) Secondly, there is currently some uncertainty as to whether that charge and other outstanding charges listed for November will be finally disposed of in November because of an outstanding Court of Appeal determination.
(c) Thirdly, there is a significant prospect that, even if the applicant were convicted on the charge relating to the Chloe Black communication, any sentence imposed could be exceeded by the period of time already spent in custody by the time the matter is finalised.[3]
(d) Fourthly, it does appear that there was a significant period between the period between 11 May 2015 and the applicant’s arrest on 5 August 2015, during which the applicant was not alleged to have breached any bail condition or made any attempts to contact any of the complainants or to have engaged in any further breaches.
[3]Ibid; Re Mitchell [2013] VSC 59.
Although stalking and breaches of intervention orders are potentially serious matters, the nature of the alleged Facebook friend request on 31 March 2014 and the subsequent alleged Chloe Black communication on 11 May 2015 are not of a high level of seriousness.
The restrictive conditions proposed in the affidavit of Senior Constable Wilkins appear to be sufficiently protective and address the risk of re-offending such that, in my view, that level of risk is rendered acceptable.
I have had regard to the matters set out s 4(3) of the Bail Act 1977 (Vic), and have considered all of those matters put forward, in particular, the weakness of the prosecution’s case for the Chloe Black communication charge, and the time that the applicant has already spent in custody on remand in respect of that charge, being some 50 days already. Therefore, bail should be granted.
The conditions that I propose are as follows:
(a) That the applicant reside at 3/17A, Sunbury Gardens, Cornish Street, Sunbury, Victoria.
(b) That the applicant not contact, by any means, Andrew, Polixeni or Chris Pappas.
(c) That the applicant not attend at or within 200 metres of 231 Old Eltham Road, Lower Plenty, Victoria.
(d) That the applicant not use Facebook, Twitter, Instagram, Snapchat or any other social media.
(e) That the applicant obey the conditions of the current Final Personal Safety Intervention Orders.
(f) That the applicant report to the officer in charge of the Sunbury Police Station, or his or her nominee, each Monday, Wednesday, and Friday, between 9 am and 9 pm.
(g) That the applicant not contact the complainants or any witnesses for the prosecution, except the informant, Senior Constable Michelle Wilkins.
(h) That the applicant notify the informant at least 24 hours prior to any change of address.
(i) That the applicant take steps to pursue psychological treatment from another suitably qualified psychologist, in lieu of Ms Merrill Winney, if it is not practicable to maintain the treatment relationship with Ms Winney because of geographical considerations.
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