Re application for bail by Mark Whittingham
[2016] VSC 398
•7 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0070
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| v | |
| IN THE MATTER of an Application for Bail by MARK WILLIAM WHITTINGHAM | |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 July 2016 |
DATE OF JUDGMENT: | 7 July 2016 |
CASE MAY BE CITED AS: | Re application for bail by Mark Whittingham |
MEDIUM NEUTRAL CITATION: | [2016] VSC 398 |
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CRIMINAL LAW – Application for bail – Self represented applicant – Obtain financial advantage by deception – Attempt to obtain financial advance by deception – Commit indictable offence while on bail – Show cause – Unacceptable risk of reoffending.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering | Office of Public Prosecutions |
| Mr N. Watt | Victoria Police | |
| The Applicant in person. |
HIS HONOUR:
The applicant is currently held in custody at the Melbourne Assessment Prison. He is charged in total with 60 counts of obtaining a financial advantage by deception, two counts of attempting to obtain a financial advantage by deception and 11 counts of committing an indictable offence whilst on bail. I understand that, in addition to these charges, five summary matters are to be dealt with tomorrow at Moorabbin Magistrates’ Court. The summary charges are not the subject of this application.
The alleged offending that is the subject of this application primarily concerns fraudulent conduct committed between 2010 and 2013, and in January and February 2015, along with further similar conduct allegedly committed between July 2015 and January 2016 whilst the applicant was on bail in respect of the earlier charges.
I do not propose to summarise the alleged offending in any great detail at all. A series of complaints were made by mortgage brokers and real estate agents against the accused, and in 2013 he was investigated by the Victoria Police Fraud and Extortion Squad. Following the investigation, the applicant was arrested and interviewed on 6 February 2015. He was charged with 49 counts of obtaining a financial advantage by deception and one count of attempting to obtain a financial advantage by deception with respect to alleged offending between 2010 and 2013. He was granted bail to appear before the Magistrates’ Court for a filing hearing and was later bailed to attend at the Magistrates’ Court for a committal mention on 29 May 2015.
One month after this initial grant of bail, on 6 March 2015, the applicant was again arrested by members of the Fraud and Extortion Squad, this time in relation to offences allegedly committed in January and February 2015. As at January and February 2015, the applicant was on bail for separate offending.
On 6 March he was charged with four further counts of obtaining a financial advantage by deception and four counts of committing an indictable offence whilst on bail. He was conveyed to the Melbourne Magistrates’ Court and remanded in custody. In total, the 53 obtaining financial advantage by deception charges were said to be valued at $981,455 and the attempt to obtaining financial advantage by deception was said to be valued at $158,528.
The applicant made an application for bail on 17 July 2015, which was successful. He was released on bail on 24 July. By that stage he had been in custody from 6 March 2015 to 24 July 2015. His 17 July 2015 application was supported by positive character references, and a surety of $170,000 was provided by an associate.
It is alleged by the prosecution that almost immediately after his release on 24 July 2015, the applicant commenced a further series of fraudulent activities. The conduct alleged includes false procurement of a proof of age card in the name of Mark Logie; obtaining a marine licence by false statement in the name of Mark Logie; obtaining financial advantage by deception in respect to three credit accounts opened in the name of Mark Logie, to a total value of $75,000; obtaining financial advantage by deception in respect of fraudulent purchase of three vehicles to a total of $309,711; and an attempt to obtain financial advantage by deception in the sum of $384,000 in respect of the purchase of real estate property.
At some stage a court may have to deal with the applicant’s defence for these latter charges, which, as I understand it, is that Mr Whittingham’s wife’s name is Logie. He claims an entitlement to call himself Logie, and argues that there has been no deception practised upon any of the alleged victims of these crimes. It is not this Court’s place to resolve that issue.
Mr Whittingham was again arrested on 10 March 2016 and charged with seven further offences, being those relating to the conduct described in [7] above, along with seven further counts of committing an indictable offence whilst on bail. Once again, Mr Whittingham was remanded in custody. He has been in custody from 10 March 2016 to today’s date.
The applicant applied for bail at the Melbourne Magistrates’ Court on 20 May 2016. Mark Stud, who had previously provided a relatively favourable reference, and Mr Work, the provider of the surety, attended the 20 May application. Mr Stud apparently gave evidence that the applicant had breached a condition of his previous bail undertaking pertaining to a requirement to work at a specific location, and I am told that Mr Work stated that he was no longer prepared to provide a surety for the applicant’s bail.
On 21 May 2016, following the previous day’s unsuccessful bail application, the applicant, it is alleged, made a telephone call to Mr Stud in which he stated words to this effect, “See you soon, you fucking cunt”, and then hung up. Mr Stud, who is facing a possible three month gaol sentence, took the call to be threatening.
The report of detective Craig Wilson, which is annexed to the affidavit of Tracey Russell, apparently summarises a prison phone call made to by the applicant to an acquaintance on 16 June 2016. It is not clear to me that the call is evidence of a seriously evinced intention, although on its face it appears to indicate an intention by the applicant to commence a course of action leading to the demolition of Mark Stud’s house.
The applicant is self-represented. He is in a show cause situation. His submissions in support of his application for bail are directed at showing cause as to why his detention in custody is not justified.
The applicant is also currently unrepresented for his very complicated Magistrates’ Court committal, which is listed for two weeks commencing on 15 August 2016. He argues that it is impossible, or at least very, very difficult, to prepare adequately for that committal in the constrictive environment in which he is currently accommodated.
The second of the indictable batch of offences, that is, those following 24 July 2015, are listed for further committal mention on 28 July 2016. It is likely that a committal will be held in relation to those offences sometime late this year.
While there is no surety that the applicant is able to provide to the court today, he indicated that one might be available at some stage in the future.
The applicant proposes that should bail be granted he will reside with his wife and children at their address and report to the Meeniyan police station as required.
I accept that the applicant will have great difficulty representing himself at the committal if he is unrepresented. I also accept that it is more difficult for him to prepare for that hearing whilst he is incarcerated.
The Director opposes bail on the grounds that the applicant is an unacceptable risk of committing further offences whilst on bail, and that the applicant has not shown cause as to why his detention is not justified.
In my view the applicant has not shown cause. Since February last year, he has been released on bail twice, only to have it revoked on account of further alleged offending. On one view, he has threatened a former referee to a previous bail application, and it appears he maintains a hostility towards that man. The offences alleged, if proved, are undoubtedly serious and seemingly escalating in gravity.
I have no confidence that the applicant will not reoffend. I am positively satisfied that the applicant presents an unacceptable risk of further offending that cannot be mitigated to an acceptable level by the imposition of bail conditions.
Accordingly, the application is refused.
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