Re Application for Bail by De Waij
[2016] VSC 805
•6 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0172
| IN THE MATTER of the Bail Act 1977 |
| -and- |
| IN THE MATTER of an Application for Bail by CASPER DE WAIJ |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 29 November, 1 & 6 December 2016 |
DATE OF JUDGMENT: | 6 December 2016 |
CASE MAY BE CITED AS: | Re Application for Bail by De Waij |
MEDIUM NEUTRAL CITATION: | [2016] VSC 805 |
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CRIMINAL LAW – Bail – Show cause situation – Applicant diagnosed with borderline personality disorder – Applicant offered place at drug and alcohol rehabilitation facility – Where drug addiction not central to offending – Whether unacceptable risk – Bail refused
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Bayles | Emma Turnbull Lawyers |
| For the Respondent | Mr C F Thomson | Office of Public Prosecutions |
HER HONOUR:
The applicant, a 23 year old man, seeks bail and must show cause why his detention in custody is not justified because he has been charged with indictable offences whilst he was at large awaiting trial for another indictable offence,[1] and because he has been charged with the offence of trafficking a drug of dependence.[2]
[1]Bail Act 1977 (Vic) s 4(4)(a).
[2]Bail Act 1977 (Vic) s 4(4)(cab).
He was arrested and charged on 25 August 2016 by Detective Sergeant Holmes (‘the informant’) with the following 12 offences (‘the Holmes brief’):
Charge Offence 1 Prohibited person possessing a firearm at Carnegie on 16 August 2016 2 Trafficking a drug of dependence: methylenedioxymethamphetamine (‘Ecstasy’) at Carnegie on 16 August 2016 3 Possessing a drug of dependence: methylenedioxymethamphetamine (‘Ecstasy’) at Carnegie on 16 August 2016 4 Trafficking a drug of dependence: methylamphetamine (‘Ice’) at Carnegie on 16 August 2016 5 Possessing a drug of dependence: methylamphetamine (‘Ice’) at Carnegie on 16 August 2016 6 Recklessly engaging in conduct (being improper use of a motor vehicle) that placed a person in danger of serious injury at Berwick on 23 August 2016 7 Handling stolen goods (being a Winchester .44 rifle) by or on behalf of another, knowing or believing it to be stolen, at Carnegie on 16 August 2016 8 Handling stolen goods (being three sets of stolen registration plates) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016 9 Handling stolen goods (being items of jewellery) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016 10 Handling stolen goods (being 43 rounds of ammunition) by or on behalf of another, knowing or believing them to be stolen, at Carnegie on 16 August 2016 11 Possessing cartridge ammunition without licence or permit on at Carnegie on 16 August 2016 12 Carrying cartridge ammunition in a manner that was not secure and dangerous at Carnegie on 16 August 2016
It is likely that the informant will amend charges 4 and 5 to substitute the drug concerned from methylamphetamine to ketamine. Therefore, the drugs of dependence under consideration include 88 Ecstasy tablets (charges 2 and 3) and 15 g of ketamine (charges 4 and 5).
Prior to the charges on the Holmes brief being laid on 25 August 2016, the applicant had previously been charged by Detective Senior Constable Walker on 22 June 2016 with the offence of being a prohibited person in possession of a firearm at Narre Warren North between 17 and 20 May 2016 (‘the Walker brief’).
At the time of the applicant’s alleged offending on the Walker brief in May 2016, he was under a 12-month community correction order (‘CCO’) imposed at the Frankston Magistrates’ Court on 22 July 2015 for convictions on charges of assault in company and driving whilst authorisation suspended.[3]
[3]The CCO included 150 hours of unpaid community work as well as a mental health treatment and rehabilitation condition.
On 6 October 2016, he was remanded on the charges on the Holmes brief by a magistrate to a committal mention at the Melbourne Magistrates’ Court set down for 15 December 2016.
On 3 November 2016, the applicant applied for and was refused bail on the Holmes brief at the Melbourne Magistrates’ Court.
At the hearing of the application before me, the informant outlined the background to the alleged offending and the details of relevant conversations recorded on telephone intercepts.
It is convenient at this point to briefly summarise the allegations.
The applicant is said to be one of the ringleaders of an illegal street drag racing group that goes by the name of the ‘South East skid group’.
Police are concerned about illegal drag racing events conducted by this group and related local groups because members of the public can be put at risk of injury during these events. The events are organised through alerts in social media in such a way as to plan for a large gathering of people and vehicles before police can take steps towards prevention.
The applicant’s role as a ringleader and organiser of these events is relevant to charge 6 on the Holmes brief, and is discussed below.
Equally concerning to police is the fact that the applicant is alleged to be trafficking drugs and seeking or possessing firearms.
Regarding the firearm possession charge on the Walker brief, the police executed a search warrant on 20 May 2016 at premises at 89 Robinson Road, Narre Warren North, as part of an investigation into a drive-by shooting that occurred in Berwick on 17 April 2016.[4] A double barrelled sawn-off shotgun was found and seized. On 22 June 2016, the applicant spoke to police of his own volition and admitted to the possession and ownership of the double barrelled sawn-off shotgun. He said that he had hidden the shotgun at the premises two days before the police raided the address, that he did not have a permit for the gun and had only used it for ‘stop signs, rabbits, beer bottles…’
[4]The address was occupied by the applicant’s co-accused, Jason Miledge, who was a suspect for the drive-by shooting.
The applicant was charged on 22 June 2016 and bailed to appear at Dandenong Magistrates’ Court on 11 August 2016. His bail was further extended upon his appearance on that date.
On 16 August 2016, through intercepting and monitoring the applicant’s mobile phone communications, police discovered that the applicant had received a gunshot wound to his hand in the early hours of that morning.
The applicant attended the Alfred Hospital to obtain treatment for the injury. On his way to the hospital, it is alleged that the applicant attended an address at Carnegie with an associate and attempted to clean certain items out of his car and hide them at that address.
Police executed a search warrant on the Carnegie address on 18 August 2016 and seized a loaded .44 calibre rifle, ammunition of various sizes and types, a bloodied jumper, and a quantity of 85 ecstasy tablets as well as some bags of powder now believed to be ketamine. They also seized a document alleged to be a written record of drug trafficking transactions and bags containing personal cards in the name of the applicant.
A stolen BMW car found at that address contained spare sets of stolen number plates and a small quantity of Ecstasy tablets of the same type as those found in the apartment as well as ammunition and jewellery. The jewellery was in jewellery trays and was suspected of being stolen. The BMW was connected to a car theft that took place in South Yarra some months earlier. The applicant had allegedly referred to the stolen BMW on intercepted conversations as his ‘beemer’.
The applicant is allegedly linked to the rifle found at the Carnegie address because his blood is on it.[5] Police are yet to test apparent blood on the clothing and in the BMW car.
[5]Based on preliminary testing.
The rifle is alleged to be one of eight firearms that were stolen during a burglary from an address in Cranbourne on 11 August 2016. Most of the firearms stolen in that burglary have not been recovered. The applicant is suspected of being linked to that burglary owing to a monitored conversation that he had had with the granddaughter of the burglary victim. However, he is not charged with being a participant in that burglary.
It is alleged that when the applicant became aware of the police raid and seizure of the items from the Carnegie address, he took steps to speak to other occupants of the apartment to create a false account to explain the presence of those items on the premises.
As to charge 6 on the Holmes brief relating to the South East skid group on 23 August 2016, the applicant is alleged to have sent text messages conveying a planned drag meet at Berwick that day. The text messages included the following:
STOCKY UP GET YA 16 YEAR OLD SLUTS IN THE CAR AND LETS BRING BACK THE OLD DAYS. FIRST SPOT SENT AT 9.57P.M [sic]
…
DON’T SIT IN SERVOS OR IN BIG CROWDS. BLOCK THE ROADS OR GO FUCK YA SELVES AND REMEMBER IT US VERSUS THEM IF YOU WANT IT TO BE LIKE THE OLD DAYS BLOCK THE FUCKING ROADS [sic]
The applicant was arrested two days later and charged with the offences on the Holmes brief.
The respondent submits that the applicant is unable to satisfy the onus on him to show cause why his detention is not justified and that the applicant is an unacceptable risk of committing further offences or of endangering the safety of members of the public or of interfering with witnesses if granted bail.
The onus of establishing unacceptable risk lies with the respondent.[6] The respondent relies on the strength of the Crown case in respect of the offences, and also points to evidence obtained through mobile phone intercepts demonstrating that the applicant was contemplating committing further offences at the time of his arrest, including attempting to obtain a pistol or handgun in exchange for four or five rifles.[7]
[6]Robinson v The Queen (2015) 47 VR 226 (‘Robinson’).
[7]Transcript of Proceedings, Re Application for Bail by De Waij (Supreme Court of Victoria, S CR 2016 0172, Jane Dixon J, 29 Nov, 1 & 6 Dec 2016) 27 (‘Transcript’).
The respondent submits that the Crown case against the applicant is very strong. The respondent argues that the applicant has no apparent defence to the firearms charges brought by Holmes and Walker. The Crown also relies as proof of the charges on various incriminating admissions revealed on the mobile phone intercepts, the evidence connecting the applicant to the Carnegie address as well as the text messages he sent to organise the illegal drag racing event.
The respondent submits that the applicant has a concerning prior criminal history for a young man of 23 and has consistently failed to comply with court orders imposed as alternatives to imprisonment or youth detention.
The applicant has been in and out of custody a number of times since turning 18 and had spent periods in detention at a Youth Training Centre (‘YTC’) before that.
His previous sentencing history includes, but is not limited to, the following matters:[8]
[8]Respondent Exhibit 11 (Applicant’s Comprehensive Prison History).
(a) 13 April 2012: Sentenced to 16 months’ detention at a YTC for assorted charges including reckless conduct endangering life, burglary, car theft and dangerous driving;
(b) 15 June 2012: Appeal from the abovementioned sentence allowed and substituted with an 18-month CCO with mental health treatment conditions;
(c) 26 September 2012: Sentenced to three months’ imprisonment wholly suspended for two years on charges of affray and assault;
(d) 13 March 2013: Convicted of breaching CCO imposed on 15 June 2012. CCO varied, inter alia, to include a condition that he undergo programs or courses aimed at addressing factors related to the offending;
(e) 3 July 2013: Suspended sentence imposed on 26 September 2012 restored and sentenced to three months’ detention at a YTC on charges of prohibited person possessing a firearm, possessing ammunition without a licence or permit and failing to answer bail;
(f) 23 August 2013: Sentenced to 1 month’s imprisonment wholly suspended for 12 months for driving whilst disqualified;
(g) 24 September 2013: Convicted of breaching CCO as varied on 13 March 2013. CCO further varied to include judicial monitoring condition;
(h) 16 October 2014: Sentenced to 14 months’ imprisonment with a non-parole period of 5 months for breach of suspended sentence, driving whilst suspended, threatening to assault police member, committing indictable offence whilst on bail, contravening condition of bail, affray, criminal damage, failing to stop vehicle on police request and dangerous driving;
(i) 18 February 2015: Convicted of breaching CCO as varied on 24 September 2013. CCO cancelled and sentenced to 41 days’ imprisonment, to be served concurrently with the sentence imposed on 16 October 2014; and
(j) 22 July 2015: Sentenced to 12 months’ CCO on two charges of assault in company and driving whilst suspended.
The applicant was granted parole on 8 April 2015, and it is of some significance that his parole was apparently cancelled on 23 November 2015 and he was taken back into custody in prison.
He was released from prison on 6 April 2016 but spent a little over four months in the community before being arrested and remanded in custody on 25 August 2016 on the current charges.
The applicant submits that cause has been shown because he has now been in custody for approximately three months and he is mentally ready to enter Arrow Health, a private drug rehabilitation facility, to address issues of substance abuse and psychological dysfunction.
He has strong support from his mother, who is willing to meet the significant fees payable to the Arrow Health facility if the applicant is bailed.
The applicant also has a supportive reference from Mr Matthew Roberts, father of a friend of the applicant, dated 26 September 2016.[9] Mr Roberts states that, despite being aware of the applicant’s prior history, he gave the applicant some concreting work in the period prior to his last arrest and was impressed by the applicant’s level of commitment to the work. Mr Roberts is willing to offer work again in the future although aware of the current charges that the applicant faces.
[9]Respondent Exhibit 8.
This evidence is somewhat at odds with other evidence of the applicant’s drug and alcohol addiction, as well as evidence given by the informant that the applicant had been working as a tow truck driver with a Dandenong towing company in the months before his arrest.[10]
[10]He was alleged to be using a false driving licence to do this.
The applicant called Ms Diana Delheimer, a family therapist and drug and alcohol counsellor[11] employed by the Arrow Health facility.[12] She explained Arrow Health’s intake assessment process which she had conducted with the applicant in prison over a period of 60 minutes. She had assessed the applicant as having a substance use disorder of high severity and noted his self-reports of daily use of crystal methamphetamine and alcohol prior to his arrest. She described the applicant as having moved beyond the pre-contemplative stage of change to being currently in the contemplative stage. She said that he had been phoning the facility each week since 21 September when she had assessed him and he was looking forward to entering the facility.
[11]Ms Delheimer stated that her qualifications include a postgraduate diploma in counselling and human services from Latrobe University, a Masters in clinical family therapy from the Bouverie Centre, Latrobe University and that she is currently studying a Masters in social work at Melbourne University and has over ten years’ experience in social work.
[12]An in-patient facility which has been operating for two years, firstly in Alexandra and now in Woodend.
Ms Delheimer also said that she had seen Dr Aaron Cunningham’s psychological report as to the applicant’s historical trauma, and she conceded that if he entered the Arrow Health facility, he would have to be taken off-site for treatment by a psychologist or psychiatrist. However, she said that on-site counselling would deal with the underlying issues driving his addiction. She said that Arrow Health operated a 28-bed residential rehabilitation facility in Woodend that could accommodate the applicant if he were bailed to the facility. She recommended that the applicant enter the facility for 90 days and gave details of the program that would be offered to the applicant.
She said that there are three phases to the program. In the first phase, which lasts for 30 days, the client must remain on the premises for 24 hours a day. In the second 30-day period, a day leave pass is permitted for one day on a Sunday, depending on the applicant’s bail conditions. In the third 30-day period, a weekend pass is permitted between and Friday and Sunday night. Whilst not a secure facility, it is monitored by CCTV cameras and has one worker for every five clients. If admitted to the facility, the applicant would not have access to mobile phones, computers or social media. The program offers on-site individual counselling, cognitive behavioural therapy and group therapy between 9.00 am and 5.00 pm five days a week and off-site ‘twelve-step programs’ run by Alcoholics or Narcotics Anonymous on Saturdays. Three of Arrow Health’s current residents are persons who have been bailed to the facility.
She testified that if the applicant were bailed to the facility and did not comply with his conditions of bail, then Arrow Health would immediately contact the police along with his mother and his solicitor.
The intake assessment documentation used by Ms Delheimer when assessing the applicant was tendered by the respondent during Ms Delheimer’s cross-examination.[13] The intake assessment notes show that the applicant had reported to Ms Delheimer that before incarceration he was smoking 100 cigarettes per day, drinking up to or more than a bottle of Jack Daniels per day, and consuming more than $4,000 per week of crushed ice (ie. methamphetamine) and cocaine. He had also referred to addiction to Tramadol since the age of 18.
[13]Respondent Exhibit 9.
Ms Delheimer testified that she had attempted to check the applicant’s self-reported drug use with his mother, but that his mother had said that the applicant had been homeless between his last release from prison in April this year and his most recent arrest and ‘[s]he hadn’t seen him. But every time she’d seen him in that time, he seemed drug affected’.[14] In her notes, Ms Delheimer did not have a distinct reference to the applicant’s use of Ecstasy.[15]
[14]Transcript 76.
[15]The informant, Detective Holmes, said that the applicant had told him at the time of his arrest that he did not use ice or speed, that he used pills but that he could give them up at any time he wanted. Furthermore, in the conversations monitored via telephone intercepts, the only drug the applicant appeared to be using was Ecstasy.
The applicant also tendered a psychological report prepared by Dr Aaron Cunningham,[16] forensic psychologist, and called him to give evidence as to his assessment and diagnostic opinion.
[16]Applicant Exhibit 2.
Dr Cunningham assessed the applicant at the Melbourne Assessment Prison (‘MAP’) on 22 November 2016. He diagnosed the applicant as having a borderline personality disorder. He received a history from the applicant which included a history of drug abuse. The applicant reported that he had used amphetamines daily since the age of 16, escalating from a gram every 3 days to 4 to 5 grams a day, and that he had also abused Seroquel, Mirtazapine, Avanza, Endep, Endone, cocaine, Ecstasy, Valium, Rivotril and methamphetamine.
Dr Cunningham was cross-examined about his failure to pay regard to an earlier report by a treating psychologist, Mr Paul Grech. Dr Cunningham said that he had only been given Mr Grech’s report after he had written his own report and had not placed much weight on it because he had been informed that Mr Grech had retracted his report.
He was also cross-examined about the short period of time he had spent assessing the applicant.[17] His reply was that he had also relied on other information that he had been provided in his assessment of the applicant.
[17]Dr Cunningham was shown a movement register from the MAP that indicated that he had spent 35 minutes with the applicant on the day of the assessment: Respondent Exhibit 13.
He conceded that, given the applicant’s diagnosis of borderline personality disorder, the applicant’s report of the extent of his drug and alcohol use may have been exaggerated or partly false because he may have been motivated by the goal of getting out of gaol and into the Arrow Health facility. He also conceded that Ms Delheimer may have received an exaggerated account of substance abuse from the applicant. However, he considered it likely on the basis of the applicant’s mental health and gaol history that the applicant would use whatever drugs were around him at the time.[18]
[18]Transcript 130.
Dr Cunningham was taken to an entry in the Monash Health Dandenong Hospital Emergency Department records,[19] where the applicant had presented to the Emergency Department in a state of crisis on the day after his most recent release from prison but had then left the hospital without waiting to complete the treatment plan. The applicant had declined to be admitted for in-patient treatment at the time. Dr Cunningham considered that the hospital records were consistent with a diagnosis of borderline personality disorder. He said that the trauma experienced by the applicant prior to the age of seven was central to his diagnosis of borderline personality disorder, as well as the applicant’s manifest inability to maintain stable work, relationships and a pattern of impulsivity.
[19]Applicant Exhibit 1.
In his view, the applicant needs long-term psychological treatment to overcome a personality disorder resulting from childhood trauma.[20] He opined that this disorder could not be treated with medication and that the applicant needs to learn to regulate his emotions and develop a stronger sense of self. He conceded that the applicant is reckless and impulsive and that individuals with this diagnosis can manipulate situations.[21] He said that borderline personality disorder is difficult to treat and would take years.[22] He said that ‘seeing a psychologist once a week is not really going to cut it’.[23]
[20]Transcript 120.
[21]Transcript 95.
[22]Transcript 94.
[23]Transcript 103.
Dr Cunningham accepted that the applicant was at a high risk for re-offending but suggested that the applicant may be ready to enter treatment. He opined that admission into the Arrow Health facility would, in his view, be a good starting environment as there are very few alternative in-patient facilities for someone with the applicant’s disposition.[24]
[24]Transcript 130
In conclusion, the applicant relies on his long history of fragile mental health and assertions of a significant dependency on drugs as the bases for needing to be treated at an in-patient drug rehabilitation facility such as Arrow Health.
The respondent contests the fact that the applicant has a serious drug abuse problem and submits that the applicant is not suitable for in-patient drug rehabilitation because he has behavioural problems, not a drug abuse problem.
I accept that the applicant has a background history of severe childhood trauma and adolescent dysfunction.
Despite the limitations on the psychological and medical information available to me, I accept that Dr Cunningham’s diagnosis of borderline personality disorder is highly probable in light of the applicant’s history of trauma, forensic history and past suicide attempts. Features of that history, which include the Monash Health hospital records, appear to support that diagnosis.
However, I am unconvinced that the applicant provided an accurate history of recent drug and alcohol abuse to Ms Delheimer and Dr Cunningham. It was conceded by Mr Bayles on behalf of the applicant that there was no reference to drug abuse in the records of the applicant’s three mental health admissions to Peninsula Health and Monash Health hospitals in 2011.
Unfortunately, I am led to doubt that the Arrow Health facility is the appropriate facility for offering treatment of the kind needed to manage and treat the deep-seated psychological dysfunction experienced by the applicant.
I am also doubtful that the applicant would stay at the Arrow Health facility, considering his tendency not to follow through with treatment offered—as exemplified by what occurred at the Monash Health Dandenong Hospital on 7 April 2016—and considering his lack of compliance with previous court-ordered supervision and support.
Mr Bayles submits that the structured multi-disciplinary approach available at Arrow Health is the best option for the applicant in the absence of other appropriate facilities offering a structured environment and a therapeutic model within an in-patient setting. He submits that, whilst not risk-free, the Arrow Health facility is poles apart from the kind of assistance offered through CCOs or imprisonment and that the benefits of the residential program far outweigh anything available to the applicant in the past.
He also submits that the opportunity to participate in this program would improve the applicant’s chances of receiving a more therapeutically-directed sentence and that the Court should take into account that the applicant is currently expressing readiness to undertake rehabilitation.
Mr Bayles also refers to potential delay in the applicant’s current charges being finalised, although this was not strongly pressed at the hearing given that the defence has been provided with the disc containing the mobile phone intercept material and substantial information about the nature of the prosecution evidence for the charges that the applicant currently faces.
Mr Bayles does not contend that the prosecution case is weak.
Whilst conceding that the applicant’s past criminal history points towards an unacceptable risk of offending if granted bail, Mr Bayles relies on Robinson to support his argument that the risk could be rendered acceptable by requiring the applicant to reside and obtain structured treatment at an in-patient facility. In Robinson, the appellant had agreed to a condition of bail that he remain resident in a supervised treatment facility and participate in drug rehabilitation. The Court of Appeal accepted that by doing so the appellant had shown cause and that risk would be reduced to an acceptable level.
However, I agree with the respondent’s submission that Robinson is distinguished from this case on its facts. In Robinson, the appellant was acknowledged to have a very serious drug addiction that was ‘central to his offending behaviour’,[25] whereas in this case it was conceded by Mr Bayles that the applicant’s drug addiction was not central to the alleged offending.[26]
[25]Robinson v The Queen (2015) 47 VR 226 [50].
[26]Transcript 197.
The respondent argues that the charges alleged against the applicant amount to a pattern of serious ongoing offending and the Court could not have any confidence that that pattern would not continue. Unfortunately, I am bound to agree with this submission.
There have been sustained efforts made by courts who have sentenced the applicant on previous occasions to accommodate and encourage his rehabilitation. So far these efforts have failed. There are some positive features in the case put forward by the applicant, including that he has the support of his mother and close female friend, and his willingness to enter Arrow Health. I am also conscious of the fact that the applicant surrendered himself to police on the charges he currently faces and presented himself to the Dandenong Hospital on 7 April 2016.
However, Dr Cunningham referred to the poor emotional regulation and impulsiveness which are features of the applicant’s borderline personality disorder. In my view, the presence of this as yet untreated disorder and the pattern of past offending makes the risk of further firearms offending, driving and drug offending too prominent and the potential harmful consequences of such offending too grave. During cross-examination Dr Cunningham agreed that the applicant had a high risk of re-offending:
Yes?‑‑‑There’s part of that, what you said that I’d agree with which is I believe everything would suggest he’s a high risk of reoffending in that.
Yes?‑‑‑But the second part, is he motivated to change, that’s a different matter.
Yes?‑‑‑And I can’t judge that based on his background. I can say this person’s a high risk but they may be open to change or ready to change at this point. I can’t say that from his background.[27]
[27]Transcript 162.
As Redlich J said in Haidy v DPP:[28]
Bail when granted is not risk free.
As the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient.
It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable [emphasis added]. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk.[29]
[28][2004] VSC 247.
[29]Ibid [14]-[16] (citations omitted), cited with approval in Robinson v The Queen (2015) 47 VR 226, 252 [83] (Priest JA).
I am not satisfied that the applicant has shown cause why his detention is not justified, especially considering that the firearm possession charge on the Walker brief was allegedly committed whilst on a CCO and when the applicant has a previous conviction for the same offence. The charges on the Holmes brief are alleged to have been committed whilst on bail for the Walker offence.
It is also concerning that the applicant managed to become injured by the discharge of a firearm. The applicant has demonstrated an undesirable attraction to unlawfully possessing firearms and ammunition. These items are inherently dangerous even without the possible contribution of drug abuse and emotionally charged behaviour.
In considering the question of unacceptable risk, the evidence given by the informant of attempts by the applicant to obtain a handgun in exchange for his rifles counts against him, as does the suggestion that the applicant tried to get the occupants of the Carnegie address to lie to police about the items found there.
I also take into account that it was only a short period of time between the applicant’s last release from prison on 6 April 2016 and him coming to police attention again with the charges on the Walker and Holmes briefs.
Telephone intercept monitoring revealed his knowledge of the police search at the Carnegie address because he was heard discussing how the seized items might incriminate him. Yet soon after this, the applicant is alleged to have used social media to organise an illegal drag race meeting of the South East skids. This behaviour suggests that the applicant is not easily discouraged from criminal offending.
For all the above-mentioned reasons, in particular the applicant’s unacceptable risk of further offending, bail is refused.
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