Re Application for Bail by James Norman Williamson
[2016] VSC 69
•25 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0013
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an application for bail by James Norman WILLIAMSON
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JUDGE: | JANE DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2016 | |
DATE OF REASONS: | 25 February 2016 | |
CASE MAY BE CITED AS: | Re Application for Bail by James Norman Williamson | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 69 | |
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CRIMINAL LAW – Bail – Show cause – Bail granted – Stringent conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Danos | Webb Korfiatis Family Law |
| For the Respondent | Mr M Lynn | Victoria Police |
HER HONOUR:
The applicant is in custody awaiting a consolidated plea hearing in the Melbourne Magistrates’ Court on 17 March 2016. He makes application for bail in this Court having been refused bail in the Magistrates’ Court in January this year. The outstanding charges occurred over the period between 25 October and 27 November 2015 – a period of approximately one month.
The entire chronology of criminal offending by the applicant occurred between 19 September and 27 November 2015. This period includes offences for which the applicant stands convicted and the abovementioned outstanding charges.
All of the offending was related to the applicant’s marital breakdown and defiance of court orders which had been imposed in connection with family violence intervention order proceedings.
The applicant was named as the respondent in Family Violence Intervention Order (‘FVIO’) proceedings initiated by his estranged wife (‘TW’) in early September 2015.
The applicant has the following convictions (each from the Broadmeadows Magistrates’ Court):
(a) 29 September 2015: a $1500 fine without conviction on four charges of contravention of an interim FVIO; and
(b) 9 October 2015: a 24 month Community Corrections Order (‘CCO’) imposed in respect of the charge of persistent breach of a FVIO (the offending having occurred between 19 September and 6 October 2015, and involving inter alia numerous text messages, emails and phone calls).
The applicant breached the CCO by further offending and non-compliance with the conditions of the CCO. The breaching offences involved behaviour of the same character as that which had led to the FVIO being imposed, being offences involving TW. Some of these further FVIO breaches simultaneously breached the existing bail conditions.
The applicant intends to plead guilty to an outstanding charge of persistent breach of the FVIO (case number F13742423) relating to conduct between 25 October and 3 November 2015 in which First Constable Ben Redwood is the informant. This conduct includes confronting TW in a street close to the former matrimonial home and becoming engaged in a verbal argument, and later sending emails asking her to meet with him to discuss their situation. In response to the email contact, TW telephoned the applicant and told him not to email her.
Case number F13742423 originally comprised a number of separate charges. The applicant attended a police station by appointment on 6 November 2015 and after interview was charged and bailed to appear at Broadmeadows Magistrates’ Court on 13 November 2015, with a condition that he not contact witnesses for the prosecution, which of course included TW.
Regrettably, the applicant continued to have contact with TW despite the new charges, the CCO and the conditions of bail. Much of this contact was text message contact in which it was apparent that both parties to those communications were discussing property and financial settlements, ownership and disposition of chattels held in the former matrimonial home, access to their children and the need for the applicant to get help for his methamphetamine use. The text messages also discussed arrangements for removal of furniture, and management of the family dog when it escaped. This message content appeared consistent with evidence given by the applicant’s mother that TW obtained help from the applicant to move her possessions from their former home despite the existence of the FVIO. The content of the messaging even suggested that both parties were messaging each other whilst at Court on 26 November 2015, awaiting variation and reduction of the FVIO conditions by consent.
It is also apparent that TW was prepared on occasion to initiate contact with the applicant despite the existence of the FVIO.
However, it appears that on 21 November and 27 November 2015 when the applicant and TW were each present at their former matrimonial home in Sunbury, verbal arguments occurred and the applicant engaged in physical assaults including pushing her against the wall on the first occasion,[1] and throwing her against a couch whereby she hit the couch then a coffee table and landed on the floor on the second occasion.[2] Police attended the home in Sunbury on 27 November 2015 but TW declined to make a complaint and told the police that she had applied to have the FVIO varied to a bare order, so that the applicant was no longer prevented from meeting with her.[3] TW had also sought to have all the charges against the applicant withdrawn, when spoken to by First Constable Redwood on 3 December 2015.
[1]I was informed that the conduct in question on 21 November 2015 is to be dealt with as a charge of unlawful assault. The complainant did not report the assault to police at the time, despite the existence of the FVIO. The applicant is also alleged to have taken the complainant’s mobile phone SIM card in the course of the incident, without her permission.
[2]To be dealt with as charges of unlawful assault and breach of intervention order by physical abuse.
[3]Senior Constable Kemp stated that police arrived on 27 November 2015 just after the incident when the complainant had returned to get her purse from inside the house. Police noticed a scratch on the left collar bone and a small nick next to her eye that looked about a day old, but was told by the applicant that she got the marks from playing with her dog. The police did not see any other injuries, nor were any other injuries reported on that attendance when they spoke to the complainant on her own.
At a later stage, after the applicant was remanded in custody, TW made a statement to police alleging that the applicant had discouraged her from complaining about the breaches and had encouraged to seek withdrawal of charges.
On 11 December 2015, the applicant was interviewed about the contact which had occurred between 19 November and 26 November 2015. He was then charged by First Constable Redwood (case number F14079188). These charges have now been reduced to a further charge of persistent contravention of a FVIO and breaches of bail conditions arising from the same occasions of contact.
Constable Banner (also case number F14079188) interviewed the applicant on 11 December 2015 for conduct which included contact with the complainant in the time period of 21 November and 27 November 2015, which time period partly overlapped with the charges laid by Redwood but which included the physical assaults referred to in paragraph 11 above. Those charges were laid on 21 December 2015 after the applicant was remanded in custody.
The applicant has indicated that he will plead guilty on 17 March 2016 in a consolidated hearing at the Magistrates’ Court to the charges in case numbers F14079188 and F13742423 including persistent breach of FVIO and unlawful assaults, theft of TW’s SIM card and breach of bail.
The applicant has been in custody since the 11 December 2015. It should be noted that a number of allegations and charges referred to in the respondent’s affidavit in opposition to bail are now not proceeding, including some of the more serious allegations. The outstanding matters have been resolved in such a way as to avoid the need for TW to give evidence against the applicant in a contested hearing.
In summary, it appears that despite having been previously convicted for persistent breach of a FVIO and despite having been further charged and bailed for breach of the FVIO, the applicant did not abide by the conditions of the FVIO or bail. He also failed to attend and engage in the CCO that had been ordered on 9 October 2015.
In support of the application for bail, the applicant gave oral evidence. I also heard oral evidence and received into evidence a report dated 16 February 2016 prepared by Mr Jeffrey Cummins, a clinical and forensic psychologist. Mr Cummins supported the applicant’s case for bail and opined that despite previous poor compliance with court orders, the applicant has now reflected on his circumstances whilst in prison and is capable of complying with bail conditions and related FVIOs and is unlikely to reoffend. The applicant’s parents and sister attended court, and the applicant’s mother, Mrs Karen Williamson, also gave evidence supporting his application for bail.
It was conceded by the applicant that there is not a great deal of time until his consolidated plea will be heard, but it was argued that he has gained substantial insight over the period he has spent in prison, and he is now ready and willing to abide by stringent conditions if he were granted bail. He is finding his custodial circumstances intolerable and is highly motivated to avoid re-offending and highly motivated to seek psychological treatment and support.
The applicant is in a show cause position under the Bail Act 1977 (‘the Act’) as a result of a number of provisions which are directed towards persons who commit offences whilst on bail, breach the conditions of bail, or breach FVIOs.[4]
[4]The show cause provisions which are invoked as a result of the applicant’s charges include ss 4(4)(a), 4(4)(ba) and s 4(4)(d) of the Act.
The applicant is also alleged to be at an unacceptable risk of committing offences on bail or breaching the conditions of bail, if released from custody at the present time.
The respondent argued in essence, that the applicant’s methamphetamine addiction meant that relapse was probable, and that his record showed that he was likely to re-offend. Concerns were raised for the welfare and safety of TW, and it was noted that she is fearful. It was noted that the applicant breached the CCO only two weeks after it was imposed. It was also argued that the applicant’s mother will not be able to influence or control the applicant’s behaviour.
Personal background of applicant
The applicant was born on 6 March 1974 and is 41 years of age. His separation from TW precipitated his offending in and after September 2015.
The couple have two daughters aged 6 and 10 years. The daughters are also named as ‘protected persons’ under the FVIO. Therefore, even if bail were granted, the applicant would be unable to have contact with his children until such time as those orders were varied or the Family Court process facilitated a resumption of parental contact.[5]
[5]Although the FVIO had been varied and its conditions reduced on the application of TW on 26 November 2015, it was further altered on application by the police after 11 December 2015.
The applicant maintains that he has not seen his children since being remanded in custody and that he has only been permitted occasional contact after the breakdown of the marriage, and that this was a major source of frustration to him. The applicant’s mother testified that she sought a contact visit with her grandchildren after the marital breakdown, but was told not to persist in case it was suggested that the grandparents were acting as agents of the applicant.
The applicant and his wife previously resided in their own home in Sunbury. That house has now been sold and TW now lives in a different region of metropolitan Melbourne.
The applicant’s parents reside in Sunbury and they are willing to accommodate the applicant if he is granted bail. They have resided at the same address for 30 years and also accommodate an adult son who is disabled and wheelchair bound. It is a three-acre property.
The applicant’s father manages an international freight forwarding company in which the applicant has an interest and holds shares. The applicant was employed as a Freight Forwarding Manager with the freight company until August 2015 when he became unreliable. I am informed that the applicant could return to work with his father at the freight company if bailed. He also has available an alternative work option with an uncle in Sunbury if there were any impediment to returning to a role with the freight company. The applicant’s mother is a retired teacher’s aide and gave evidence that she is available to supervise her son’s adherence to his bail conditions.
The applicant and TW had been together for 10 years. They had known each other since secondary school. Unfortunately, it appears that they were introduced by mutual friends to methamphetamine and began to use it recreationally in the past year or so. However, the applicant’s addiction to the drug became pronounced in the six months before his arrest and he was using at least half a gram per day. The couple were arguing frequently and the applicant’s methamphetamine use and consequent behaviour damaged their marriage irretrievably.
The applicant claims in effect that as a result of his methamphetamine abuse he was unable to sensibly process the fact that the marriage was over. He also resented the lack of child contact afforded to him by TW and chose to pursue the issue directly with her, rather than seeking help from a family law specialist.
In her evidence, the applicant’s mother also testified that the applicant implied that the marital issues could be sorted out, throughout the latter months of 2015, despite TW obtaining a FVIO and involving the police.
It was put that, since being remanded in custody, the applicant’s attitude and degree of insight improved substantially. He maintains that his drug use was the dominant reason for the failure of his marriage, his loss of employment and his failure to comply with the court orders which arose after the marriage breakdown. He has indicated that up until he was remanded in custody, he was dependent on methamphetamine on a daily basis and feeding that addiction had become the major focus of his life, instead of prioritising obedience to court orders or getting drug treatment therapy.
The applicant does not have a history of longstanding poly-drug use. He gave evidence that prior to the marital breakdown, he was very involved in the parenting of his children including frequent school collections and drop-offs on a weekly basis, and many hours spent doing outdoor jobs in their company. He frequently cooked and cleaned within the home environment as well as holding down employment. However, it seems that his home and family life became significantly destabilised by his regular daily methamphetamine abuse in the six months prior to his arrest.
Whilst the applicant’s parents were aware of the marital breakdown and had allowed their son to live in a caravan on their property, they were not fully aware of his methamphetamine addiction until after the applicant was remanded in custody. They were aware that intervention orders were in place, but had not seen copies of the orders, and were not fully aware of the detail of the orders, nor the seriousness of breach of those orders.
The applicant’s mother testified that, notwithstanding the existence of the FVIO, TW visited their home unannounced on three occasions, and also sought the applicant’s assistance moving furniture after she moved out of the family home. TW also attended the vicinity of the home of mutual friends who live near the applicant’s family, when the applicant was present there. This caused the applicant’s mother to be less clear about the gravity of what was occurring when her son breached the orders by having contact with TW. Nevertheless, she testified that she and her husband did discourage the applicant from contacting TW based on their general awareness of the FVIO.
Since the applicant was arrested and remanded in custody on 11 December 2015, his parents have actively supported him by visiting prison each weekend, and by attending his previous application for bail in the Magistrates’ Court in January this year. They also arranged family law representation and retained Mr Cummins to assess the applicant, provide advice and furnish a forensic report.
The applicant claimed that his experience of being remanded in custody has had a dramatic effect on his attitude and self-reflection. He claimed that he had found it very difficult to adapt to his custodial circumstances for a range of reasons.
(a) First and foremost, he has struggled to adjust to the conditions in custody. He elaborated on those matters in a handwritten document provided to his solicitors which was appended to the Affidavit of Mr Nicholas Carlson dated 11 February 2016. It appears he was shocked and upset by the conditions in the police cells and the Metropolitan Remand Centre (‘MRC’).
(b) He spent the early weeks of remand in police lock-up facilities at Broadmeadows and Ringwood. He spent a brief period of about five days at the Melbourne Assessment Prison and tried to obtain work as a billet. He was then moved to the MRC and has resided in two different units there: Burnside and Albion. He claimed that he has had limited periods of time outside his cell in both these units.
(c) He also claimed that despite lodging written requests at every available opportunity, he has been unable to access rehabilitation programs as a remand prisoner, apart from one short operational health and safety program which was a prerequisite to becoming a billet. He stated that at one stage he spent 64 consecutive hours in lockdown because another prisoner climbed a flag pole in protest. He also testified that he was told by prison staff and other prisoners that the hours of lockdown had been more restricted in recent months since the recent prison riots. He was told that prison officials were concerned about allowing too many prisoners in the yard at one time because of the risk to the wire fence which separates two units.
(d) The applicant expressed an abhorrence of the conditions of prison and testified that it was as a result of that experience, and the hours under lockdown, that he had come to the realisation that he did not want to return to his previous drug abusing lifestyle that had led to his imprisonment in the first place.
(e) The applicant testified that he now realised he would need to seek child contact through formal legal channels with the assistance of his family lawyers and he would need to wait, even if that meant waiting a long time. He testified that the period spent on remand caused him to realise and accept that his marriage is over and that he does not desire to resume the marriage or have contact with TW.
(f) He testified that he is willing to engage with Mr Cummins and privately fund his own psychological rehabilitation, and that his father will also support him financially if necessary. It was put on his behalf that he has not used drugs since his remand in custody and he produced a negative urine test result from prison records. It was also put that he is willing to avoid drug using associates and undertake mandatory screening for illicit drugs.
The comprehensive assessment report prepared by Mr Cummins contained a number of themes in common with a previous Credit Bail Support report dated 21 January 2016,[6] a report which was prepared for the earlier application for bail at the Broadmeadows Magistrates’ Court. The Credit Bail Support report was favourable towards the applicant’s application for bail, notwithstanding that he did not obtain bail at that time.
[6]Signed by Ms Melanie Trevarthen, Case Manager.
In considering whether the applicant is an unacceptable risk to reoffend or whether cause has been shown, I am influenced especially by the following factors.
The applicant had no criminal history before 19 September 2015.
The applicant has been in custody since 11 December 2015.
Over the period since 11 December 2015, the applicant appears to have undergone detoxification from methamphetamine.[7]
[7]Notwithstanding that under cross-examination Mr Cummins agreed that detoxification alone is usually not sufficient to overcome methamphetamine addiction.
The applicant’s experience of the police cells and gaol conditions has been very salutary. In particular, he gave evidence before me of excessive periods spent under lockdown in the cells. However, he also gave evidence of how he had used the period under lockdown to reflect on his circumstances. It appears that he now realises that he was the architect of his own misfortune and that he needs to change his ways.
The detailed assessment report of Mr Cummins further elaborated on the mental processes that have led the applicant to decide to become law abiding and drug free. Mr Cummins gave evidence that the applicant is now, as a result of the period spent in custody, a low risk of re-offending.[8]
[8]Under cross-examination Mr Cummins accepted that methamphetamine users have a high rate of relapse but adhered to his view that the applicant is capable of positive change.
The applicant appears to have undergone a significant change of attitude and outlook and accepts that he was addicted to methamphetamine and that he was unwilling to take steps to obtain treatment prior to being remanded in custody.
He claims, and I have no evidence to the contrary, that he has been abstinent from illicit drugs since 11 December 2015. He concedes that his failure to abide by FVIO conditions, bail orders and the CCO was impeded by his untreated methamphetamine addiction.
He now realises that he needs professional and family support to overcome his methamphetamine addiction. His family were not made fully aware of the details of his drug addiction until after the applicant’s remand, but they are now better acquainted with those details and he has discussed his drug abuse with them.
The applicant frankly concedes that his marriage is over and that he had not fully accepted that prior to being imprisoned.
The applicant has openly accepted in evidence the need for drug rehabilitation support, offender specific support and counselling for family breakdown and that acceptance is expressed in the Credit Bail Support report, and the evidence of Mr Cummins. Mr Cummins also said he would report a breach of bail to the police.
The applicant had previously failed to accept the need for psychological or psychiatric treatment prior to being remanded in custody, although such treatment may have been put in place had he availed himself of the CCO. He now accepts the necessity of obtaining professional help to deal with his drug abuse and the causes of his drug use.
The applicant is willing to accept responsibility for his actions by instructing his lawyers to resolve his outstanding charges and have the consolidated plea hearing set down for 17 March 2016.
The applicant has now instructed family law representatives who will act on his behalf for all future property, maintenance and child contact arrangements, which will obviate any desire for the applicant to attempt to resolve those matters through personal communications with his estranged wife.
The applicant is willing to reside with his parents and brother in their family home. He is from a respectable and law-abiding family who attended the hearing to support him and are closely concerned with his future wellbeing. The applicant’s mother gave evidence before me indicating a willingness to support the applicant’s compliance with bail conditions. She testified that they would report a breach of bail conditions to the police. The applicant appears to appreciate the support offered by his family and expressed regret for being the cause of distress to his parents.
The applicant has the financial means to obtain skilled professional help through therapeutic treatment by Mr Cummins and has expressed a willingness to self-fund treatment.
The applicant has the offer of resuming employment and has expressed a willingness to do so without the interference of drug abuse (the applicant had a solid employment history prior to the months leading up to the breakdown of his marriage).
Accordingly, in my view, with the structured support that can be put in place by Mr Cummins, a mandated drug testing regime, a stable and supported residence and stable employment, the applicant presents a low risk for committing further offences on bail. His sworn evidence before me assisted in that conclusion.
The unsatisfactory conditions experienced by the applicant whilst on remand, as described by the applicant, whereby little has been able to be provided by way of educational or employment or treatment programs, or even time outside of the cells, to foster the applicant’s rehabilitation is a significant factor in cause being shown as to why bail should be granted. I note in this regard that the Credit Bail Support report stated that the applicant said he had self-referred to programs for ‘Coping with Loss and Change’, ‘Stress Management’ and the ‘Alcohol and Other drugs’ programs as well as individual counselling programmes whilst in custody at the Melbourne Assessment Prison and MRC. At the time of the assessment, he had not been offered access to any of these programs. According to the applicant’s detailed oral evidence, this was still the case at the time of the applicant’s appearance before me.
Finally, I apprehend that if the applicant’s attitude is such that he remains committed to his own rehabilitation, he may well be found suitable for a community based disposition in combination with time served when his plea is ultimately heard at the Magistrates’ Court, although of course I cannot gainsay the decision of the learned Magistrate. However the potential for such an outcome is a matter that assists in showing cause why bail should be granted, taken in combination with the other factors mentioned above.
I propose to grant bail on very stringent conditions as follows:
(a) To reside with his parents Mr and Mrs Williamson at Sunbury, Victoria within the family home at that address.
(b) To report to the police station at Sunbury each day between the hours of 8 am and 6 pm.
(c) To attend weekly appointments with Mr Jeffrey Cummins, clinical psychologist, for psychological treatment, supervision and counselling.
(d) To abstain from the ingestion of methamphetamine or any other illicit drug.
(e) To obtain treatment, supervision and counselling for methamphetamine addiction from Mr Jeffrey Cummins and any additional person, organisation or agency nominated by him.
(f) To provide supervised urine sample results to Mr Jeffrey Cummins, at a minimum of twice weekly and any additional occasions required by Mr Cummins. The applicant must provide a urine sample for testing within 24 hours of any request being made by Mr Cummins.
(g) The applicant is not to associate with persons who use or supply illicit drugs.
(h) To attend Tristar Medical Group in Sunbury, Victoria for the preparation of a Mental Health Care Plan for his future care by a medical practitioner at that practice. Otherwise to attend an alternative general practice for preparation of such a plan.
(i) To contact the Men’s Referral Service on 1300 766 491 for referral to a men’s behavioural change program or alternatively to seek referral to an offender specific program nominated by Mr Jeffrey Cummins, as directed by him.
(j) To abide by the conditions of the existing Family Violence Intervention Order dated 22 January 2016 issued by the Broadmeadows Magistrates’ Court (case number F13150619) which names [certain persons] as respondents.
(k) Not to associate with [certain persons].
(l) Not to attend the suburb of Keilor East.
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