Re Application for Bail by Exner
[2020] VSC 453
•24 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0147
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Byron EXNER | |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 and 10 July 2020 |
DATE OF ORDERS: | 10 July 2020 |
DATE OF REASONS: | 24 July 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Exner |
MEDIUM NEUTRAL CITATION: | [2020] VSC 453 |
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CRIMINAL LAW – Application for bail – Whether exceptional circumstances exist – Applicant not an unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | The applicant appeared in person | |
| For the Respondent | Mr D Cordy | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
On 9 March 2020, the applicant was charged with offences of stalking, trespass (two charges), contravention of a final family violence intervention order (‘FVIO’) (two charges), and contravention of a FVIO intending to cause harm or fear. The charges relate to events said to have occurred between 21 December 2019 and 21 February 2020, involving two separate complainants who are each former partners of the applicant.
The applicant has remained in custody since the date of his arrest on 9 March 2020. At the time of the alleged offending, he was subject to a FVIO where his former partner, KR (‘the second complainant’) and her children were listed as the affected family members. The parties agree that the applicant was also serving a community correction order (‘CCO’) that had been imposed in the Melbourne Magistrates’ Court on 17 December 2019, following conviction for persistent contravention of a FVIO.
On review of the applicant’s criminal history, it appears that he was in fact subject to two concurrent CCOs – the first was imposed on 8 October 2019 for the offence of persistently contravening a FVIO and then varied on 17 December 2019 due to a contravention, and the second was also imposed on 17 December 2019 for another count of persistently contravening a FVIO (which presumably gave rise to the CCO contravention charge in relation to the first CCO). The first CCO contains additional conditions including unpaid community work, judicial monitoring and compliance with an existing FVIO, which do not appear on the second CCO.
On 23 June 2020, the applicant filed an application for bail at this Court. He has previously been refused bail twice in respect of the present charges, in the Geelong Magistrates’ Court, on 10 March 2020 and 24 April 2020.[1] He was self-represented on both occasions.
[1]On both occasions, bail was refused on the basis that the applicant failed to demonstrate exceptional circumstances that justified that grant of bail and was found to be an unacceptable risk of committing an offence while on bail and endangering the safety and welfare of any person. In respect of the application on 10 March 2020, he was also found to be an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter.
Presently, this matter is listed for a committal mention in the Geelong Magistrates’ Court on 6 August 2020. The applicant has elected to have the matter uplifted to the County Court.
The applicable legislation
Section 4AA(2)(c)(iv) of the Bail Act 1977 (‘the Act’) sets out that the exceptional circumstances test applies to a decision to grant bail to a person accused of a Schedule 2 offence, if that offence is alleged to have been committed by the accused person during the period of a CCO for another Schedule 2 offence.
In the present matter, the applicant is charged with stalking and has, within the preceding 10 years, been convicted of an offence involving the use of violence against another person.[2] This makes the stalking charge a Schedule 2 offence under the Act (‘the first Schedule 2 offence’).[3]
[2]On 8 April 2013, the applicant was convicted in the Melbourne County Court of recklessly causing injury: DPP v Byron Exner [2013] VCC 961.
[3]The Act, Schedule 2, item 8(a).
Relevantly, at the time the applicant is alleged to have committed the first Schedule 2 offence, he was serving at least one CCO for another Schedule 2 offence, specifically, persistent contravention of a FVIO.[4] Therefore, pursuant to s 4AA(c)(iv), the exceptional circumstances test applies to this application.
[4]The Act, Schedule 2, item 19.
The onus of satisfying the Court as to the existence of exceptional circumstances is on the applicant.[5] In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’ outlined in s 3AAA of the Act.
[5]The Act, s 4A(2).
The meaning of exceptional circumstances is not defined in the Act. In addressing this in DPP v Muhaidat, Kaye J (as he then was) stated:
Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances that would otherwise entitle the applicant to bail.[6]
[6][2004] VSC 17 [13].
In the matter of Re Brown, Lasry J summarised the relevant principles as follows:
In order to be ‘exceptional’, it has been accepted that:
·The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
·Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
·Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[7]
[7][2019] VSC 751 [65] (citations omitted).
If satisfied as to the existence of exceptional circumstances, the Court must apply the unacceptable risk test.[8] In doing so, the Court must refuse bail if satisfied by the respondent that there is an unacceptable risk of the kind set out in s 4E(1)(a).[9] In reaching this determination, the Court must again have regard to the surrounding circumstances in s 3AAA and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[10]
[8]The Act, s 4D(1)(a).
[9]The Act, s 4E(2).
[10]The Act, s 4E(3).
Further, a Court considering a grant of bail must make inquiries of the respondent as to whether there is in force a family violence intervention order, family violence safety notice, or recognised domestic violence order against the applicant.[11] The applicant is presently subject to two separate FVIOs, where the complainants in this matter and their respective children are the affected family members.[12]
[11]The Act, s 5AAAA(1).
[12]See Affidavit in Opposition, [30](e).
Finally, when interpreting the Act, the Court must have regard to the guiding principles in s 1B(1) of the Act.[13]
[13]The Act, s 1B(2).
The alleged offending
The first incident
The applicant was in a relationship with DVD (‘the first complainant’) intermittently for approximately seven years between 2010 until 2017. They have two children from that relationship, who are aged five and nine respectively. On the material, the former couple’s relationship is acrimonious and there are presently proceedings before the Family Court regarding visitation with the children. The applicant is presently prevented by an order of that Court from spending time with the children.
At approximately 3.00 pm on 21 December 2019, the first complainant was driving home with the children when she observed the applicant’s vehicle. The applicant allegedly leaned out of his vehicle’s window and stuck his index finger up at them, causing one of the children to feel ‘scared and shaky’ and tell her mother that she did not want to go home in case the applicant returned.
The first complainant then took the children to stay at her parents’ residence. Once there, she contacted her 14-year-old son and requested that he check the letterbox to make sure the applicant had not left anything, as he had a history of leaving cards. While there was nothing in the letterbox, the complainant’s son subsequently discovered three cards on the floor of the children’s playroom.
The first complainant returned home to check the CCTV footage, which depicted the applicant attending her residence at approximately 2.30 pm earlier that day. He walked to the rear yard of the property, entered the garage for approximately 30 seconds, walked to the rear sliding door, opened it, and threw the envelopes inside before leaving. The footage depicts the applicant’s vehicle slowly driving past the first complainant’s residence again at 3.30 pm.
On 24 December 2019, the first complainant’s son contacted her to advise that the applicant had returned to her residence, having knocked on the rear-door before leaving. This is corroborated by CCTV, which depicts the applicant walking to the first complainant’s rear-yard at approximately 11.30 am on that day, knocking on the rear-sliding door and leaving after approximately 30 seconds.
On 21 January 2020, a full final FVIO was made in the Ballarat Magistrates’ Court naming the applicant as the respondent and the first complainant, her son and their children as the affected family members. The applicant was present in court and consented to the order, without admissions. The FVIO remains in place until further order.
The second incident
Between 2017 and 2019, the applicant was in a relationship with the second complainant. On 13 June 2019, a FVIO was made in the Ballarat Magistrates’ Court naming the applicant as the respondent and the second complainant and her children as the affected family members. That order, which was served on the applicant by way of substituted service on 24 September 2019, inter alia, prohibited the applicant from contacting or communicating with the second complainant by any means.
At 12.42 pm on 21 February 2020, the second complainant received a ‘missed call’ from the applicant. At 7.01 pm, she received a text message from the applicant that read, ‘I tried’.
Arrest and interview
At 10.55 am on 9 March 2020, the applicant was arrested at an address in Deer Park and conveyed to the Geelong Police Station. During a record of interview, he admitted that he had attended the first complainant’s residence on 21 and 24 December 2019, although, stated that he did so to see his daughters for Christmas. He denied stalking the first complainant. He also denied calling or sending any text messages to the second complainant, stating that his phone ‘has a mind of its own’.
The applicant’s background
The applicant is 55 years of age. He worked for 25 years as a Victoria Police member. At the time of his arrest, he was unemployed and residing in Deer Park.
The applicant has a relevant criminal history, spanning between 2013 and 2019, including a conviction for recklessly causing injury towards a former partner, using an unregistered motor vehicle on a highway and numerous contraventions of FVIOs (including persistent contraventions and contraventions intending to cause harm or fear). As noted above, at the time of the alleged offending, he was subject to two 12-month CCOs imposed in the Melbourne Magistrates’ Court on 17 December 2019 following conviction for persistently contravening a FVIO and in relation to the breach of an earlier CCO.
The applicant’s contentions
The applicant relies on the following matters in support of his application for bail:
The nature and seriousness of the alleged offending
The applicant states that he is aware of the seriousness of the charges against him and is remorseful if his actions have caused the complainants any concern or anxiety.
The strength of the prosecution case
In his affidavit sworn on 19 June 2020, the applicant addresses the first incident and submits that his attendance at the first complainant’s residence was ‘total [sic] innocent and out of love for [his] daughters’. As for the incident involving the second complainant, the applicant submits that the missed call and text message were a result of his phone malfunctioning,[14] and, in any event, could not have been interpreted as intending to cause apprehension or fear. The applicant otherwise comments that the ‘indictable offences were manufactured by an ambitious inexperienced police member chasing statistics to further his career’.
[14]In support of this, the applicant relies on an article from The New York Times, dated 12 March 2018, ‘How to Prevent the ‘Butt Dial’’.
In a supplementary affidavit sworn on 30 June 2020, the applicant notes that he has now been served with a copy of the hand-up brief and maintains that the charges against him are not supported. He directs a number of allegations towards Victoria Police in relation to the handling of this matter.
The applicant’s criminal history
The applicant acknowledges his criminal history and submits that his past offending is a result of alcohol abuse which has historically affected his judgment and behaviour, and notes that he is now determined to maintain sobriety and stay in control of his decisions and behaviour.
Compliance with past grants of bail and CCO conditions
The applicant has previously been granted bail, and, during that period, is said to have complied with all conditions imposed on him and attended all court dates as required without concern or breach.
Moreover, he states that he was compliant with the conditions of his CCO, including attending all appointments and community work as directed. This is supported by a Judicial Monitoring Report dated 4 March 2020, annexed to the respondent’s Affidavit in Opposition as ‘CC-10’.
The applicant’s personal circumstances
The applicant proposes to reside in Inverloch with his mother, Kerry Exner, if he is granted bail. The applicant’s mother, who is 74 years old, suffers from bowel and breast cancer and ‘associated health problems’. It is proposed that the applicant will be her full-time carer.
In an undated letter in support of the application, the applicant’s mother writes that the applicant was visiting her regularly prior to his arrest, to help with work and maintenance around the house. She notes that it was intended that he would come reside with her once he had finished serving his CCO. Since the introduction of restrictions relating to COVID-19, the applicant’s mother writes that she now needs assistance from a family member ‘more than ever’ due to her age and compromised health. She states that the applicant’s help to her during this time would be ‘invaluable’.
Family Court proceedings
The applicant has an application before the Family Court relating to visitation with his children that he shares with the first complainant. On 14 June 2020, the applicant received notification that an application made by the first complainant to have his Family Court application set aside was to be listed on 26 June 2020. At the time the applicant filed his application for bail in this Court on 23 June 2020, it was his submission that it should be determined urgently so that he could attend the Family Court application on 26 June 2020. On that day, the Family Court matter was adjourned and is now listed on 21 July 2020.[15] The applicant maintains that he seeks bail in order to attend the Family Court proceeding.
[15]Supplementary Affidavit in Support sworn 30 June 2020.
Any special vulnerability
The applicant submitted that he was diagnosed with ‘PTS’, presumably a reference to Post Traumatic Stress Disorder, in 2004 but did not accept treatment for that condition. He states that he was in denial and proceeded to self-medicate with prescription medication and alcohol, until first accepting that he needed help in September 2019. However, due to his arrest in an unrelated matter and subsequent arrest in the present matter, his engagement with treatment was interrupted and he presently does not have access to appropriate supports in custody.
Conditions in custody
The applicant states that he has been assaulted on four occasions while in custody, and has had personal items stolen from his cell and his toothbrush used to clean the toilet without his knowledge. He expresses fears for his safety. In addition, the applicant states that he is unable to receive mental health treatment due to being a remand prisoner, notwithstanding that he is constantly depressed and having difficulty sleeping. He states that the whole experience is ‘soul destroying’.
The length of time the applicant is likely to spend in custody if bail is refused
The applicant has been in custody since 9 March 2020, and submitted that he does not know how long he will be in custody if bail is refused. It is his belief that that, based on his reading of newspaper articles, this could be at least two years.
Proposed conditions
In his supplementary Affidavit in Support, the applicant proposes that he be granted bail with conditions including that he reside with his mother, Kerry Exner, at [address redacted] and not change that address without permission of the court, report to police at Wonthaggi police station each Monday and continue with mental health treatment as directed by a qualified medical practitioner.
The respondent’s contentions
The application is opposed by the respondent. Firstly, it is submitted that the applicant has failed to demonstrate the existence of exceptional circumstances that justify the grant of bail. Secondly, it is submitted that he poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail or interfering with a witness or otherwise obstructing the course of justice in any matter. The respondent places particular emphasis on the family violence risks posed by the applicant under s 5AAA(2)(a) of the Act, noting both his history of contravening FVIOs and the fears expressed by both complainants in this matter. In expanding upon the alleged risks under s 4E(1)(a), the respondent submitted the following:
Endangering the safety and welfare of any person
The applicant’s criminal record includes a number of family violence offences, including family violence offences perpetrated against both of the complainants in this matter. Further, the applicant’s history demonstrates a propensity for him to disregard court orders, particularly FVIOs.
To this end, the respondent sets out in some detail the background of family violence incidents perpetrated by the applicant against the complainants.[16] This includes at least one incident of violence, in March 2012, involving the applicant strangling the first complainant for a brief period before punching a cupboard above her head. It is not clear whether the applicant was charged in relation to this conduct.
[16]See Affidavit in Opposition, Exhibit CC-2, [15]-[44].
The applicant has been assessed by police as a high risk family violence offender, having been identified as the perpetrator of 21 instances of family violence between 2008 and 2020. The respondent lists a number of factors that are said to be indicative of his risk, including the escalation in his behaviour of contravening FVIOs and court orders; his history of violent, abusive, threatening, stalking, controlling and jealous behaviours; and his poor mental health (including suicide threats), and issues with substance abuse, unemployment and finances.
The respondent contends that there are no conditions of bail that could be imposed to ameliorate the risk of the applicant committing further family violence offences and endangering the safety and welfare of any person, particularly the complainants.
Committing an offence while on bail or interfering with a witness
The respondent reiterates the matters set out above. Further, the respondent refers to the applicant’s proposed living arrangement with his elderly mother. While no concern is expressed as to the suitability of that address (noting that the applicant’s mother has no criminal history), it is submitted that the applicant’s mother is unlikely to be able to ensure the applicant’s compliance with any conditions of bail that might be imposed, if bail were to be granted.
Otherwise obstructing the course of justice in any matter
The respondent submitted that the applicant’s persistent attempts to communicate with both of the complainants in this matter, irrespective of the imposition of FVIOs, is indicative of the high risk he poses of continuing to attempt to communicate with the complainants.
Further, in addressing each of the relevant surrounding circumstances set out in s 3AAA in turn, the respondent submitted the following:
The nature and seriousness of the alleged offending
It is submitted that the alleged offending is objectively serious, particularly when viewed in the framework of the applicant’s history of committing family violence offences and breaching FVIOs with respect to both of the complainants.
The strength of the prosecution case
The prosecution case in relation to the first incident is supported by CCTV footage and the applicant’s own admissions that he attended the first complainant’s residence on at least two occasions during the relevant period. In addressing the applicant’s intent, the respondent submitted that there is a strong basis to contend that the applicant knew his actions would likely cause fear or apprehension to the first complainant, particularly in the context of the history of their relationship and the first complainant having applied for a number of FVIOs in the past.
As to the second incident, it is noted that the applicant concedes that the second complainant received a missed call and a text message from his phone. It is submitted that it will be for a jury to determine whether, as the applicant purports, this was due to a malfunction of his phone.
The availability of treatment or support services
It is noted that the applicant has not proposed to engage in any treatment or support services, if bail is granted, notwithstanding the proposed mental health treatment condition.
The length of time the applicant is likely to spend in custody if bail is refused and likely sentence
The respondent concedes that there may be some delay in this matter due to the impact of COVID-19. However, it is submitted that the length of the delay is speculative and unlikely to be disproportionate to the time the applicant would spend in custody if bail was refused, based on the strength of the evidence, the seriousness of the allegations and the likely sentence should the applicant be found guilty of the charges against him. It is noted that the matter is still due to proceed to a committal mention on 6 August 2020.
The respondent submitted that the applicant would likely receive a custodial sentence if found guilty of the charges against him. To this end, the respondent notes that the maximum penalty for stalking, contravention of a FVIO and contravention of a FVIO (intending to cause harm or fear), attract maximum sentences of 10, two and five years’ imprisonment respectively. Further, it is submitted that the fact that applicant already has a history of committing family violence offences against the complainants in this matter is an aggravating feature.
Conclusions
On 2 July 2020 I adjourned the further hearing of the matter for enquiries to be made as to whether or not the applicant would continue on his CCOs. I was informed and accept that satisfactory arrangements can be made for him to do so.
It is clear that because offences that the applicant has alleged to have committed are sch 2 offences, and they have been committed whilst he is on a CCO, he is required to show exceptional circumstances. I am satisfied that exceptional circumstances exist.
I am satisfied that:
· Any period he would spend on remand would exceed any sentence that he would likely to receive if convicted with the offences with which he is charged.
· There are arguable issues in relation to the charges.
· The applicant has accommodation available to him in Inverloch Victoria.
· That the applicant’s performance on the two CCOs which he is prior to his incarceration was good.
· There is reason to believe that his mental health may be deteriorating while he remains in custody.
Having found exceptional circumstances, I am obliged to consider whether or not the applicant is an unacceptable risk of:
· endangering the safety or welfare of any person;
· committing an offence while on bail;
· interfering with a witness or otherwise obstruct the course of justice in any matter; or
· failing to surrender into custody in accordance with the conditions of bail.
The informant expressed particular concerns about the unacceptability of the risk of the applicant further offending whilst on bail and/or interfering with witnesses because of his extensive history in family violence matters and the nature of the alleged offending.
I am satisfied that with the imposition of appropriate conditions he would not be an unacceptable risk.
The applicant will be released on bail on his own undertaking and on the following special conditions. That:
1. He attend the Ballarat Magistrates’ Court on 6 August 2020 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
2. He reside at [address redacted] in Victoria, and not change that address without the leave of the Court.
3. He remain at those premises between the hours of 9:00pm and 6:00am each day for the duration of bail, except in the company of his mother.
4. He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
5. He not attend the City of Greater Ballarat except to attend Court or meet with his lawyer for the duration of the bail period.
6. He not attend the City of Greater Geelong.
7. He report each Monday and Thursday to the Officer in Charge of the Police Station at Wonthaggi, or his or her nominee, between the hours of 6:00am and 9:00pm, but such reporting is suspended until the informant has notified the applicant that in-person reporting has resumed.
8. He continue or commence mental health treatment as directed by a qualified medical practitioner.
9. He not contact, directly or indirectly, any witness for the prosecution, except the informant.
10. He not leave the State of Victoria.
11. He not attend any points of international departure.
I include under, 'Other matters' in the order granting bail these matters:
1. The Court is satisfied that exceptional circumstances exist and that it has not been shown that the applicant is an unacceptable risk, for the reasons announced this day.
2. The applicant is subject to two Community Corrections Orders imposed in the Melbourne Magistrates’ Court on 17 December 2019 for the duration of 12 months.
3. The Applicant is the subject of two Family Violence Intervention Orders in cases J13003073 and L10063548.
It is not my practice to include in bail conditions that the applicant has to keep the law, but he should understand he is bound and must keep the terms of the family violence orders. The applicant is also obliged to do his best to contact the authorities who will work out with him, the form of work to be done on the CCOs and his compliance with the other conditions of those orders.
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