Re application for bail by Falcke
[2022] VSC 4
•14 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0381
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by Robert Falcke |
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JUDGE: | WHELAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 January 2022 |
DATE OF ORDER: | 14 January 2022 |
DATE OF REASONS: | 17 January 2022 |
CASE MAY BE CITED AS: | Re application for bail by Falcke |
MEDIUM NEUTRAL CITATION: | [2022] VSC 4 |
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CRIMINAL LAW – Application for bail – Charges of serious violent offences against domestic partner – Whether compelling reason exists justifying grant of bail – Character of offending a very pertinent factor - Delay not so significant as to constitute a compelling reason – Alleged offending while on bail and subject to family violence intervention order – Not satisfied of compelling reason – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Brown | Stary Norton Halphen |
| For the Respondent | Ms D Pastoors | Victoria Police |
HIS HONOUR:
The applicant, Robert Falcke, is charged with a number of serious violent offences which he is alleged to have committed on 3 November 2021. At the time of this alleged offending he was on bail in relation to offences allegedly committed on 17 July 2021. On 3 November 2021 the applicant was arrested and remanded in custody.
On 14 January 2022, I heard an application for bail. At the conclusion of the hearing, I dismissed the application on the basis that I was not satisfied a compelling reason justifying the grant of bail had been established. I indicated I would publish reasons. These are those reasons.
The applicant is charged with seven indictable offences in relation to events which allegedly occurred on 3 November 2021. The indictable offences are as follows:
·Recklessly engaging in conduct, being strangulation, that may have placed a person in danger of death.
·Intentionally causing injury.
·Recklessly causing injury.
·Unlawful assault.
·Making threat to kill.
·Contravention of a family violence intervention order causing harm or fear.
·Being a prohibited person in possession of an imitation firearm.
The applicant is also charged with committing an indicatable offence whilst on bail and with possession of cartridge ammunition in relation to the alleged events of 3 November 2021.
At the time of the alleged offending on 3 November 2021, the applicant was on bail for offences allegedly committed on 17 July 2021. Those charges included a charge of possession of a drug of dependence and two charges of possession of a prohibited weapon. At that time a summons was (and still is) pending against the applicant on a further charge of possession of a prohibited weapon allegedly found in his possession on 13 November 2020.
The charges relating to the offences allegedly committed on 3 November 2021 are currently listed for a contest mention at the Sunshine Magistrates’ Court on 20 January 2022. If the matter proceeds as a contest, it is anticipated that there will be a delay of between four and six months before the hearing. Thus, it is currently anticipated that, if the matters proceed as a contest, they will be heard in the Sunshine Magistrates’ Court in the middle of this year. The charges related to the alleged events on 17 July 2021 are listed for mention at the Melbourne Magistrates’ Court on 18 January 2022. Counsel for the applicant indicated in the hearing that, depending upon matters which are currently unknown or unresolved, those matters might be transferred to the Sunshine Magistrates’ Court.
The application for bail was supported by two affidavits of the applicant’s solicitor affirmed 21 December 2021 and 13 January 2022.
The applicant applied for bail in the Sunshine Magistrates’ Court on 25 and 29 November 2021. That application was refused. A report from the Court Integrated Services Program dated 25 November 2021 (‘the first CISP report’) was relied upon in that application and was exhibited to the first affidavit of the applicant’s solicitor on this application. A further report from the Court Integrated Services Program dated 13 January 2022 (‘the second CISP report’) was forwarded to the Court and was relied upon on this application.
The application for bail was opposed by the prosecution. An affidavit of the solicitor for Victoria Police was relied upon which exhibited a detailed report from the informant in relation to the alleged 3 November 2021 offending.
Circumstances of the alleged offending
The victim of the alleged offending on 3 November 2021 is the applicant’s domestic partner, who I will refer to as ‘T’. At the time of the offending, an interim family violence intervention order made 17 September 2021 was operative, listing T as the affected family member. The order included conditions whereby the applicant was not to commit family violence.
In substance, it is alleged that on 3 November 2021, the applicant and T began arguing inside and outside a branch of the ANZ Bank in Melton after T was unable to withdraw cash for the applicant. It is alleged that the applicant threatened T and attacked her with a pen knife before grabbing her by the hair and preventing her from leaving a vehicle which he was then driving at high speed. It is alleged that he threatened to kill T. It is alleged that after pulling over, he smashed the car windows with a hammer whilst T was inside. It is alleged he then got back inside the car and assaulted her by kicking, punching and strangling her. It is alleged that they then drove to the applicant’s residence where eventually T cried out for neighbours to call the police. Police attended. T had injuries to her hand and neck. The injuries were not serious. A search of the applicant’s residence located shotgun cartridges, a gel blaster and a hammer. It is alleged that the applicant was aggressive towards police members and was unable to be interviewed.
The alleged circumstances of the offending on 17 July 2021, were that the applicant came to the attention of police at a petrol station in North Melbourne and that a search of his vehicle led to the discovery of a gas cannister, a flick knife, a zip lock bag containing methylamphetamine, and an ice pipe.
The alleged offending on 13 November 2020, which was the subject of the summons, concerned the discovery of a drug pipe on the front seat of the applicant’s vehicle by police and the location of a flick knife during a subsequent search.
Provisions of the Bail Act
Under s 4 of the Bail Act 1977 (‘the Act’), an accused is entitled to bail unless the bail decision maker is required by the Act to refuse bail. Under s 4AA(3) and s 4C of the Act, where the accused is charged with a Schedule 2 offence, bail must be refused unless the accused satisfies the bail decision maker that a compelling reason exists that justifies the grant of bail. In considering whether a compelling reason exists, the surrounding circumstances, including those enumerated in s 3AAA of the Act, must be taken into account. If a compelling reason is found to exist, the bail decision maker must nevertheless refuse bail pursuant to s 4D and 4E of the Act if the prosecution establishes that there exists certain specified unacceptable risks.
Because the applicant is charged with: seven indictable offences allegedly committed whilst on bail (Schedule 2, Item 1(a)); offences under relevant provisions of the Family Violence Protection Act 2008 in the course of which violence was used or threatened (Schedule 2, Item 18); and an offence under the Act, being the commission of indictable offence whilst on bail (Schedule 2, Item 30); he must satisfy the Court that a compelling reason exists that justifies the grant of bail.
In considering whether such a compelling reason exists, it is necessary to take into account the surrounding circumstances, including (relevantly) the nature and seriousness of the alleged offending; the strength of the prosecution case; the applicant’s criminal history; the applicant’s compliance with earlier grants of bail; whether the applicant was on bail or subject to a summons at the time of the alleged offending; whether there is a family violence intervention order; the applicant’s personal circumstances, associations, home environment and background; any special vulnerability of the applicant, including being an Aboriginal person; the availability of treatment or bail support services; the views of the alleged victim; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence if the applicant is found guilty.
The relevant surrounding circumstances
The offences with which the applicant is charged include serious violent offences in the context of a domestic relationship. On T’s account of events, she was subjected to a terrifying attack by an enraged assailant involving an assault with a pen knife, the smashing of car windows with a hammer, hitting and kicking, threats to kill, and strangulation. The injuries sustained were not serious. The alleged conduct was in contravention of a family violence intervention order made less than two months prior.
It is submitted on behalf of the applicant that the case against him is essentially ‘oath on oath’. That seems likely to be so concerning the alleged offending on 3 November 2021. The case against him may substantially rely on the credibility of T.
The applicant has a prior conviction for armed robbery in 2014. That matter was dealt with in the County Court. The applicant was sentenced to a community correction order for a period of 2 years. Counsel on behalf of the applicant relied upon his compliance with the conditions of that order in support of this application for bail.
Counsel for the applicant also relied upon the fact that there is no allegation of any previous breach of bail conditions. Counsel for the prosecution, on the other hand, pointed to the fact that the alleged offending on 3 November 2021 occurred whilst on bail and in contravention of a family violence intervention order.
In relation to the applicant’s personal circumstances, material exhibited to the applicant’s solicitor’s affidavits indicates that the applicant has had long–standing mental health issues. It seems that he was diagnosed with ADHD when young and was prescribed medication for that condition. The material also indicates that he has been diagnosed with both bipolar affective disorder and schizophrenia and has been prescribed medication for those conditions. The applicant’s ADHD created problems for him at school and work. Notwithstanding these problems, he is a qualified plumber and, if bailed, intends to return to work as a plumber. The applicant was born with only one kidney which makes him somewhat vulnerable.
Whilst the applicant has not previously been charged with, or convicted of any family violence related offences, there have been five prior reports of family violence involving both T and a former partner.
Both the first CISP report and the second CISP report recommend the applicant for the CISP program. There is a contrast between the first CISP report and the second CISP report.
In the first CISP report, the applicant admitted some drug use, but was ‘adamant he avoids using methylamphetamines’. He was reported to be ‘ambivalent’ about seeking formalised alcohol and other drug treatment. He was not taking his prescribed medication, and he did not ‘wish to pursue a mental health review or re–commencement of daily medications’. The report indicated that the applicant ‘believes he has been victimised in this relationship [referring to T] and placed blame on the affected family member’.
By way of contrast, the second CISP report states that the applicant acknowledges that he has a ‘major problem’ with drug use, including daily use of methylamphetamine, and although ‘initially hesitant’ about seeking treatment, he is now willing to complete a comprehensive drug and alcohol assessment following his release. The report suggests that he now desires to ‘continue’ with his medication and is ‘open’ to commencing a mental health care plan. The report states that the applicant does not identify himself as having a problem with anger, but is ‘open’ to exploring a men’s behaviour change program. The second CISP report raises for the first time the possibility of an acquired brain injury.
The second CISP report suggests that the applicant is now motivated to undertake treatment both for his mental health issues and his drug abuse. Given the attitude expressed in the first CISP report, it is necessary, in my view, to be cautious in assessing the applicant’s motivation to address these issues.
The material filed in support of the application reveals that the applicant has recently discovered that a great grandparent was, or may have been, Aboriginal. The position remains unclear, but he now identifies as an Aboriginal person. He seeks to engage with Aboriginal programs. On the material before me, it is not clear the extent to which such programs would in fact be available to him were he to be granted bail, but I accept that this is a connection which the applicant is genuinely motivated to explore.
The views of T in relation to the bail application are unknown.
If the applicant is not bailed, it is likely that he will have spent between 6 and 9 months in custody before a contested hearing. In my view, if he is found guilty of the offences charged in relation to the events of 3 November 2022, he is likely to receive a sentence involving a custodial period of that magnitude or greater. There is also the possibility that he will receive a sentence involving a custodial period less than the time he will have spent in custody on remand.
Submissions
Ms Brown of counsel, who appeared on behalf of the applicant, emphasised the availability of family support, the CISP recommendations, and the availability of support from Aboriginal organisations should the applicant be granted bail. She also emphasised the applicant’s past compliance with the conditions of the community correction order, and the fact that this is the applicant’s first time in custody. She submitted that although there had been prior reports of family violence incidents, no charges had resulted from those earlier reports, and, that, in any event, such risk could be ameliorated by the imposition of stringent conditions.
Ms Brown conceded that the delay likely to be involved in this matter is not of the order with which applicants are confronted when they have been committed for trial in the County Court. But she submitted that nevertheless the delay might well be such as to result in a position where, if the applicant is found guilty, he will have spent more time in custody than the custodial portion of any sentence.
When asked about the contrast between the first CISP report and the second CISP report, Ms Brown submitted, firstly, that the applicant may well have greater insight into his position as a result of his time in custody and, in particular, as a result of having spent time without the influence of drugs. She also submitted that, in any event, even in the applicant’s motivation was influenced by the desire to obtain bail, the objective of addressing his mental health and drug abuse issues would still be advanced by a grant of bail on conditions.
Ms Pastoors, who appeared on behalf of the prosecution, relied upon the difference between the two CISP reports. She submitted that there must be an issue as to the applicant’s genuine willingness to engage in assessment and treatment. She emphasised that the alleged offending occurred both whilst on bail and in contravention of a family violence intervention order. She accepted that there was a possibility that an eventual custodial sentence, if the applicant were to be found guilty, could be less than the time he had spent on remand.
Existence of a compelling reason
After considering the submissions which had been made and the material filed in support of the application, I announced at the end of the hearing that I was not satisfied a compelling reason justifying the grant of bail existed.
The reasons I reached that conclusion are the following:
·The alleged offending on 3 November 2021 is of a violent and very concerning character. The use of the hammer, and the strangulation, are particularly concerning. Whilst the applicant is entitled to the presumption of innocence, the nature and seriousness of the alleged offending against his domestic partner, is, in my view, a very pertinent factor.
·A delay until the middle of 2022, whilst unfortunate, is not so great as to constitute a compelling reason justifying a grant of bail in this case. The likely delay before a contested hearing in this case is not as significant as the likely delay in many of the matters presently before the courts.
·In my view, if the applicant is found guilty, while he may possibly receive a lesser sentence, he is likely to receive a sentence with a custodial component in excess of the time which he will have spent on remand. He has a prior conviction for armed robbery. The alleged offending occurred while he was on bail and was subject to a family violence intervention order.
·I am unpersuaded that the applicant is genuinely motivated to address his mental health and drug abuse issues. It seems to me that the applicant’s motivations and beliefs may be more accurately reflected in the first CISP report, rather than the second.
Conclusion
As I was not satisfied that a compelling reason existed justifying the grant of bail, I refused the application.
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