Re Application for Bail by Luke James
[2015] VSC 175
•30 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 00038
| IN THE MATTER of the Bail Act1977 (Vic) and IN THE MATTER of an application for Bail by LUKE JAMES |
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2015 |
DATE OF JUDGMENT: | 30 April 2014 |
CASE MAY BE CITED AS: | Re Application for Bail by Luke James |
MEDIUM NEUTRAL CITATION: | [2014] VSC 175 |
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CRIMINAL LAW – Application for bail – Whether applicant has shown cause as to why his detention is not justified – Whether the applicant poses an unacceptable risk that if released on bail he would commit further offences, endanger the safety or welfare of members of the public, interfere with witnesses or otherwise obstruct the course of justice – Whether the risk of the applicant re-offending is lessened in circumstances where the applicant on bail is subject to strict bail conditions – Bail granted subject to conditions – Bail Act1977 (Vic).
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APPEARANCES: | Solicitors |
| For the Applicant | Ms K. Ljubicic, Robert Stary Lawyers |
| For the Respondent | Mr J. Kibel, Victoria Police |
HIS HONOUR:
The applicant, Luke James, is making his third application for bail. Magistrate Larosa refused an in-person application for bail on 23 March 2015. Magistrate Larosa determined that the applicant had not shown cause as to why bail was justified. The applicant made a further application for bail after obtaining legal representation on 7, 8 and 9 April 2015. Magistrate Amour refused bail, determining that the applicant had not shown cause. The principal grounds for the refusal of bail were that there was an unacceptable risk the applicant would commit further offences and that the applicant posed an unacceptable risk to the community.
The applicant was remanded in custody to appear before the Ringwood Magistrates’ Court on 1 May 2015.
I briefly refer to the relevant history. On 9 August 2013, the applicant was convicted of 11 offences, being the making counterfeit money, dealing with property suspected of being the proceeds of crime, two counts of failing to answer bail, disrupting a match/game/sport/event, contravening a Family Violence Safety Notice, intentionally destroying property, using cannabis, possessing a controlled weapon without exemption, intentionally damaging property, possession of amphetamine and possession of cannabis. The applicant received three Community Corrections Orders for a period of 16 months in respect of this offending. There was non-compliance in respect of these Orders, including the applicant’s non-attendance at mandatory appointments, failure at drug screening tests and the undertaking of 81 hours of community work. Furthermore, the applicant produced a falsified document purporting to be from his employer to explain his non-attendance at mandatory appointments.
On 15 August 2014 the applicant was arrested and charged with 8 further offences; trafficking methyl-amphetamine, possession of methyl-amphetamine, four counts of possession of a drug of dependence (prescription drug), possession of a prohibited weapon without exemption, possession of ecstasy, knowingly dealing with the proceeds of crime, handling of stolen goods and possession of cannabis. The applicant was released on bail, to appear at the Ringwood Magistrates’ Court on 9 December 2014 upon the conditions that the applicant reside at 109 Jumping Creek Road, Wonga Park, that he not contact any witness for the prosecution and that he surrender all passports. On 9 December 2014, bail was extended upon the same conditions to 26 June 2015.
On 11 December 2014, the applicant was intercepted by police in Whitens Reserve, Wonga Park. A subsequent search of his vehicle revealed the applicant had in his possession digital scales, cash and a baseball bat. The matter was proceeded by way of summons for the offence of possession of a dangerous article, the baseball bat. The matter is listed for a contested hearing on the 29 June 2015.
On 23 March 2015, and whilst on bail, the applicant was charged with 6 further offences, including trafficking methyl-amphetamine, possession of methyl-amphetamine, trafficking ecstasy, possession of ecstasy, dealing with property suspected of being the proceeds of crime and the possession of a prohibited weapon without exemption. The applicant is therefore in a show cause situation, charged with indictable offences alleged to have been committed whilst he was at large awaiting trial for other indictable offences.[1] The Court, in these circumstances, shall refuse bail unless the accused shows cause why his detention in custody is not justified.[2]
[1]See Bail Act 1977 (Vic) (‘the Act’) s 4(4).
[2]Ibid.
Ms K. Ljubicic, appearing on behalf of the applicant, relied upon the following grounds in support of the applicant’s application for bail:
(a)the applicant’s youth, he is 24 years of age;
(b)the fact that this is the applicant’s first time in custody;
(c)the delay in this matter, where there is a likelihood that the applicant will spend more time on remand than probable sentence;[3]
[3]See Kellam J in Mokbel v DPP (No 3) [2002] VSC 393 where his Honour stated ‘…whether or not this risk is unacceptable requires to be balanced against the period that the applicant will otherwise spend in custody awaiting trial. In this regard, there is also to be brought into account the precautionary measures that can be taken by way of conditions’ at [6].
(d)that the prosecution case with respect to the drug trafficking charges is weak;
(e)there is significant support and supervision available to the applicant from his mother, from the Credit Bail Program and from Mr Kerry Cussen, who is a drug and alcohol counsellor at SalvoCare;
(f)his favourable assessment by Credit Bail, combined with the heightened support being offered by the Credit Bail Program in this case, including the provision of fortnightly progress reports to the Court; and
(g)that the applicant is willing to abide by strict bail conditions, including the following:
i.the applicant reside at 5/7 Nicholson Street, Lilydale with his mother;
ii.the applicant not leave his place of residence between 9.00pm and 6.00am and present himself to police at the front door of the residence during these times to ensure curfew compliance;
iii.the applicant comply with conditions of Credit Bail, including supervision appointments twice per week;
iv.the applicant comply with all lawful directions of Mr Kerry Cussen and attend treatment sessions with him twice per week;
v.the applicant provide three supervised urine screens per week; and
vi.the applicant comply with fortnightly judicial monitoring whilst on bail.
Firstly, it is not contested that this is the applicant’s first time in custody.
Secondly, in respect of the delay in this matter, where there is a likelihood that the applicant will spend more time on remand than probable sentence, the informant, Senior Constable Ben Hutchinson, gave evidence that telephone analysis by e-crime for the purposes of prosecuting the applicant in respect of the drug trafficking charges would take approximately five to nine months. Ms Ljubicic cited Gray v DPP in support of her submission that when delay is uncertain this should be taken into consideration in assessing if the applicant has shown cause,[4] and as such, the circumstances of this case weigh in favour of the granting of bail given the weakness of the prosecution case in respect of the charges of trafficking[5] and the real potential a lengthy custodial sentence will not be imposed. An important factor as any in the exercise of my discretion is to have regard to the gravity of the charges the applicant faces. Whilst I do not underestimate the seriousness of the charges or the element of repetition with charges for which he was already on bail it is apparent on the materials the charges reflect the applicant’s addiction to methyl-amphetamine.
[4]See Gray v DPP [2008] VSC 4 (Bongiorno J).
[5]See Transcript 3.18 – 3.25, 6.5 – 6.14 and 6.22 – 6.24. Senior Constable Hutchinson deposed that the two counts of drug trafficking relate to methyl-amphetamine and ecstasy, but that the quantity of methyl-amphetamine, being one gram, is less than a trafficable quantity and that there was no direct observations of drugs being offered by the applicant in exchange for money.
Thirdly, on 7 April 2015, Credit Bail assessed the applicant as a suitable candidate for their program. Ms Joanne Spanos of Credit Bail, gave evidence at the applicant’s bail hearing in April that she would be willing to provide increased support to the applicant, with a particular focus towards addressing his drug abuse problem. The applicant has also been deemed suitable to participate in a rehabilitation program conducted by Mr Kerry Cussen, who is a drug and alcohol counsellor at SalvoCare. Senior Constable Hutchinson agreed this program would be rehabilitative if complied with.[6] The support and supervision being offered by Credit Bail and SalvoCare is an imperative ingredient to any grant of bail. It is put that the application will take active steps to address his drug addiction and therefore continue to remain drug free as he has been since he entered remand four to five weeks ago. Additionally, the applicant understands any breaches of the stringent conditions imposed ensuring participation in these programs, including non-attendance at appointments, will be reported to the Court immediately and will be a breach of bail conditions.
[6]Transcript at 19.20 – 19.21. Senior Constable Hutchinson in agreeing the program would be rehabilitative also stated that it was his opinion the applicant would re-offend if released.
Fourthly, the Court heard evidence from the applicant’s mother, Ms Michelle Anne McInnis, as to her desire to support her son and ensure, as best she can, her son’s compliance with strict bail conditions, including transporting him to and attending appointments with him. Ms McInnis stated that her son’s time in remand had been an opportunity for him to wake up to himself and was a ‘big eye opener for him’.[7] Ms McInnis reaffirmed her son’s desire to abstain from methyl-amphetamine use.[8] The applicant was also supported by other members of his family in Court.
[7]Transcript at 21.24 – 21.25.
[8]Ibid at 21.20 – 21.21.
Mr J. Kibel, appearing on behalf of the respondent, Victoria Police, opposed the granting of bail on the basis that there is an unacceptable risk that the applicant would commit further offences, endanger the safety or welfare of members of the public, interfere with witnesses or otherwise obstruct the course of justice.[9]
[9]The Act s 4(2)(d).
During submissions, Mr Kibel indicated the respondent’s principal objection to bail was that the applicant posed an unacceptable risk of further offending. Mr Kibel referred to the fact that the applicant, whilst sentenced to three Community Corrections Orders, which had a rehabilitative component, was unable to comply with the conditions of those Orders. Mr Kibel submitted that the bail conditions proposed by the applicant are ‘almost more onerous than what the community corrections order was…[and] in regards to those conditions and the onerous nature of them, there is a high factor that the – a high probability that the applicant will re-offend’.[10]
[10]Transcript at 32.6 – 32.12.
Mr Kibel drew attention to evidence that the applicant, in support of this application, submitted a document from Mr Jake Drummet stating that for the previous nine months, until he was remanded in custody on 23 March 2015, he was a full time employee of Mr Drummet’s company, JFD Bricklaying, as a bricklayer. Subsequent enquiries by Senior Constable Hutchinson with Mr Drummet revealed that Mr Drummet had written the letter under duress and its contents were false (the applicant had not been an employee for over a year). A current investigation in relation to the applicant’s attempt to pervert the course of justice is being conducted.
Further, Mr Kibel submitted it was apparent that prior to entering remand, the applicant had a serious and expensive drug addiction and, prima facie, appeared to be dealing.
These are serious matters which I have taken into account. I also take into account the reasons of the experienced magistrates who have refused bail. But, the age of the applicant, the fact that this is the applicant’s first time in custody and particularly the length of delay in respect of having the charges heard, are important factors that on balance lead me to conclude that the applicant has discharged the statutory onus upon him.
I grant bail, but only if the applicant is prepared to enter bail on very strict conditions. One of these conditions is that the applicant provides three supervised urine screens per week for the first three months of his bail and two per week thereafter, with any positive test result to be considered a breach of bail. Compliance with this condition underpins the grant of bail. An important factor in the grant of bail is that the conditions of bail are directed at drug rehabilitation and the applicant remaining drug free. If the applicant is drug free he is unlikely to re-offend.
Mr Kibel also raised a concern as to the applicant interfering with witnesses. Mr Kibel did, however, concede that this concern was held for only one witness, Mr Drummet. A condition of bail that the applicant not contact, directly or indirectly, any witness for the Prosecution (including Mr Drummet) and that the applicant not deliberately approach or come within 50 metres of Mr Drummet should be sufficient to minimise the potential risk of the applicant interfering with the witness.
Thus, I find the applicant has demonstrated why his detention in custody is not justified. Bail is granted on the conditions set out in my order.
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