Re Application for Bail by McHenry
[2020] VSC 462
•28 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0157
| IN THE MATTER OF the Bail Act 1977 |
| and |
| IN THE MATTER OF an Application for Bail by Kade McHENRY |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2020 |
DATE OF ORDERS: | 17 July 2020 |
DATE OF REASONS: | 28 July 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by McHenry |
MEDIUM NEUTRAL CITATION: | [2020] VSC 462 |
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CRIMINAL LAW – Application for bail – Exceptional circumstances not established – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Brennan | Turnbull Lawyers |
| For the Respondent | Ms B Cowley | Victoria Police |
HIS HONOUR:
Introduction
On 17 July 2020 I refused an application for bail by Kade McHenry (‘the applicant’). I indicated that I would provide my reasons which follow.
On 20 April 2020, the applicant was arrested and charged with intentionally causing injury, being armed with criminal intent, possessing an article for disguise with unlawful intent, theft of a motor vehicle, attempted theft, attempted burglary, theft and tampering with a motor vehicle. The applicant has been in custody since his arrest.
At the time of the alleged offending, the applicant was serving a Community Correction Order (‘CCO’) imposed in the County Court on 30 January 2018 as part of a combined sentence, following convictions for aggravated home invasion, intentionally causing injury and committing an indictable offence whilst on bail. The CCO was imposed for a period of two years and commenced on 10 September 2018, following completion of 18 months’ imprisonment. It is due to expire on 9 September 2020.
On 3 July 2020, an application for bail was filed on behalf of the applicant in this Court. He was previously refused bail on 17 June 2020 at the Hamilton Magistrates’ Court on the basis that he failed to show exceptional circumstances and there was an unacceptable risk that he would endanger the safety or welfare of any person.
The matter is next listed on 18 November 2020 for a contested hearing at the Hamilton Magistrates’ Court.
The applicable legislation
Section 4AA(2)(c)(iv) of the Bail Act 1977 (‘the Act’) relevantly provides that the ‘exceptional circumstances’ test applies to a decision of whether to grant bail to a person accused of a sch 2 offence, if that offence is alleged to have been committed during the period of a CCO made in respect of a sch 1 or sch 2 offence. Both parties agree that the exceptional circumstances test is enlivened in the present application for the following reasons.
The applicant is charged with sch 2 offences within the meaning of the Act. Firstly, he is accused of committing indictable offences during the period of a CCO made in respect of other indictable offences. Secondly, he is charged with intentionally causing injury and being armed with criminal intent, during the commission of which he is alleged to have carried and used an offensive weapon, namely a pocket knife, to stab the complainant.
At the time of allegedly committing those sch 2 offences, the applicant was subject to a CCO for a sch 1 offence, namely aggravated home invasion.
It follows that the applicant must be refused bail unless, the Court is satisfied by the applicant that exceptional circumstances exist to justify the grant of bail.
The phrase ‘exceptional circumstances’ is not defined in the Act, but may be established by a single circumstance or a combination of circumstances, including matters personal to the applicant; the strength of the Crown case; undue delay in the matter progressing to trial or unusual features of the alleged offending or the investigation. In determining whether exceptional circumstances have been made out, the Court must take into account the ‘surrounding circumstances’ outlined in s 3AAA of the Act.
If the Court is satisfied as to the existence of exceptional circumstances, it must then apply the ‘unacceptable risk’ test. That is, pursuant to ss 4E(1) and 4E(2) of the Act, the Court must refuse bail if it is satisfied by the respondent that there is an unacceptable risk that the applicant would, if released on bail:
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ outlined in s 3AAA of the Act, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, when interpreting the Act, the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.
The alleged offending
The charges faced by the applicant arise from three incidents said to have occurred throughout the evening of 6 April 2020 in the Hamilton area.
At approximately 7.30 pm, a man, alleged to be the applicant, was captured on CCTV footage attempting to open the front and rear windows of a residence in Ballarat Road, Hamilton. The occupants, Lauren Moritz and Sean Nippress, were home at the time.
Being unsuccessful in entering the residence, the applicant allegedly entered Nippress’ unlocked vehicle and rummaged through the glove box before stealing a Bank of Melbourne EFTPOS card belonging to Moritz and a bottle of prescription tablets belonging to Nippress.
Shortly after, at 7.46 pm, the applicant allegedly attempted to open the driver’s door of a Mazda hatchback parked out the front of a neighbouring property.
Around 8.30 pm, Brayden Turner (‘the complainant’), was visiting a friend, Dylan Christofferson at his home on Kokoda Avenue, Hamilton. The complainant’s Toyota Hilux was unlocked and parked out the front of the residence, with the keys in the ignition.
While indoors, the complainant heard his vehicle start and went to investigate. He observed that the vehicle’s headlights were on and the applicant was sitting in the driver’s seat wearing a bandanna or another item of clothing across his face. The complainant tried to physically remove the applicant from the vehicle, to which he responded by producing a pocket knife with an approximately six-inch blade and stabbed the complainant three times to his left hand. After the applicant was out of the vehicle, he allegedly pulled the knife back and then stabbed the complainant to the left side of his chest.
Christofferson intervened and pushed the applicant away, then removed the keys from the car. The applicant allegedly threatened him saying ‘do you want to get stabbed?’. He began to leave before turning around and saying ‘I left my phone and shit in the car’. The complainant allowed him to return to collect his phone while Christofferson called emergency services. Upon overhearing Christofferson’s phone call, the applicant allegedly demanded ‘pass your fucking phone over the fence’ but Christofferson refused. The applicant then fled the scene on foot, travelling towards Ballarat Road.
The applicant was allegedly observed jogging along the footpath of Kokoda Avenue by another resident, Robert Downes, who gave a general description of the man but states he mainly observed the man’s shadow, due to the position of the street light and because he was wearing dark clothing and something in front of his face. The applicant was later captured on CCTV footage jogging towards Shanahan Court, where his mother resides.
Police attended the scene and observed the complainant’s blood on the footpath near the Toyota Hilux. Also located near the scene were the EFTPOS card and the bottle of prescription tablets stolen earlier that night. The complainant was conveyed to Hamilton Base Hospital for medical treatment for the stab wounds to his hand and chest, the latter of which had resulted in a bruised lung.
Following his discussion with police shortly after the incident, Downes checked on his own vehicle and noticed the interior roof light did not automatically turn on when he opened the car door, as the globe had been pulled out and was hanging from the socket. A digital camera had also been stolen from the vehicle.
Investigation and arrest
On 8 April 2020, the applicant’s fingerprints were identified on the interior roof light cover and an air freshener packet located within Downes’ vehicle.
Police attended the applicant’s mother’s residence in Hamilton the same day to arrest him but he was not present there. Following numerous attempts to locate him at other addresses over the next week, police contacted the applicant’s mother on 16 April 2020 to advise of a forthcoming media release. The next day, the applicant’s sister contacted police and organised for the applicant to surrender himself at the Ballarat police station on 20 April 2020. As agreed, the applicant attended the police station on that date and was arrested and charged.
Forensic analysis has been conducted on swabs taken from the EFTPOS card, the prescription pill bottle and blood detected on the complainant’s hooded jumper. The resulting report states that the applicant can be excluded from the DNA profile obtained from the hooded jumper, but he is not excluded as a contributor to the DNA located on the EFTPOS card and the prescription pill bottle with likelihood ratios of 1 to 13 and 1 to 100 billion respectively.
In addition, the prosecution will rely on evidence that the applicant’s phone was active in the Hamilton area on the evening on 6 April 2020, including telephone records disclosing calls made to his brother in Sebastopol, and later activity in the Penshurst and Ballarat areas, as well as witness statements in which a general description of the offender is provided, and CCTV footage.
The applicant’s background
The applicant is 24 years old. His circumstances prior to his arrest are not provided in any detail in the material, however, it is said that he was residing in Ballarat with his partner and had re-commenced using illicit substances.
He has a limited criminal history beginning in 2017 with findings of guilt for dishonesty and property damage offences for which he was fined a total of $2,000. His only recorded conviction was in January 2018 in the County Court at Melbourne for aggravated home invasion, intentionally causing injury and committing an indictable offence while on bail, for which he received a combined sentence of 18 months’ imprisonment and a two-year CCO. Some of the circumstances are set out in the sentencing remarks of his Honour Judge Montgomery in the County Court.[1] Relevantly, it involved the use of knuckle dusters by the applicant and stabbing of the victim by his co-accused.
[1]DPP v McHenry [2018] VCC 109.
The conditions of the CCO include supervision by Community Correctional Services, assessment and treatment for drug abuse or dependency, mental health assessment and treatment, and engagement with behaviour change programs.
The applicant’s contentions
The applicant relied on the following matters in combination to show that exceptional circumstances exist to justify his grant of bail.
(a) Strength of the prosecution case, delay and likely sentence.
The applicant did not dispute that the allegations against him are serious but submitted that he has strong prospects of acquittal, primarily on the basis that the prosecution case in relation to all charges, except for attempted theft, is weak with respect to identification. On that point, the applicant submitted the following:
onone of the witnesses identify him, beyond providing estimated height, build and age;
othe CCTV footage does not allow for identification of the applicant;
onotwithstanding that the applicant’s fingerprints were identified on items located within Downes’ vehicle, which was parked in the same street as the alleged stabbing, there is no indication in Downes’ statement as to when his vehicle was entered;
oan application will be made to exclude the DNA evidence linking the applicant to the EFTPOS card recovered from the scene of the alleged stabbing, noting the low likelihood ratio;[2] and
[2]The recently received evidence relating to the prescription pill bottle is extremely relevant.
othe applicant’s mother lives in Hamilton, which provides an alternate explanation for his phone being active in that area on 6 April 2020.
It was contended that, without more, identity will be very difficult to establish beyond reasonable doubt.
The matter is listed for contested hearing on 18 November 2020, however, the applicant submitted that there is ‘genuine uncertainty’ as to whether it will proceed on that date, given the restrictions surrounding the COVID-19 pandemic. If it is not able to proceed on that date, he submitted this would give rise to an inordinate delay for the summary jurisdiction.
It was accepted that the applicant would face a term of imprisonment if he is found guilty of intentionally causing injury and being armed with criminal intent, but he submitted a custodial sentence is not ‘inevitable’ if convicted of the remaining charges.
(b)The applicant’s criminal history .
The applicant contended that he has a limited, albeit serious, criminal history.
(c) The applicant’s youth.
The applicant was 23 at the time of the alleged offending. While he has previously served an 18-month term of imprisonment, it was said that his relative youth militates against him spending an extended period of time on remand awaiting finalisation of the matter.
(d)Availability of bail support services .
The applicant was able to resume treatment and supervision under the CCO if granted bail, including referral to drug counselling services, employment support and education workshops. Prior to his arrest, it was said the applicant progressed well and responded positively to treatment for 18-months under that order, including completing drug counselling with Uniting Care in November 2018 and regularly attending supervision appointments. That CCO is due to expire in September 2020.
(e)Availability of stable accommodation and community support.
If granted bail, the applicant proposed to reside with his cousin, Justin Wright, at [address redacted]. This address is located some two hours’ distance from the Hamilton area. Mr Wright would also offer support to the applicant. At the time of the alleged offending, the applicant was residing with his partner and had relapsed into drug use.
(f)Onerous conditions in custody due to the COVID-19 pandemic.
The applicant relied on the restrictions placed on Victorian prisoners in response to the COVID-19 pandemic, including an absence of personal visits and the anxiety caused by the prospect of the virus spreading in prison, which makes his time in custody more burdensome.
(g) Unacceptable risk
In relation to unacceptable risk, the applicant noted that he was not on bail at the time of the alleged offending and contended that appropriate conditions of bail can mitigate risk, including compliance with the CCO and a prohibition on the use of drugs. It was also submitted that the applicant has been able to detoxify from drugs for over three months while in custody, which reduces his risk of reoffending. Additionally, the applicant now understands the onerous conditions he would face if he returns to custody, which it was submitted will deter him from not complying with his conditions of bail.
The respondent’s contentions
The respondent opposed bail on the basis that the applicant has not demonstrated that exceptional circumstances exist to justify the grant of bail. Moreover, it was contended that there is an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any person or commit offences while on bail.
In response to the applicant’s contentions, the respondent stated as follows:
(a)Strength of the prosecution case.
It was submitted that the prosecution case should be taken at its highest for the purposes of the bail application. In relation to the applicant’s contention that Downes did not indicate when the applicant allegedly entered his vehicle, the respondent pointed to a further statement made by Downes which outlines that he arrived home from the supermarket in his vehicle approximately one hour prior to the incident and the interior light was working normally at that time, together with his initial statement that it was not working shortly after the stabbing incident.
(b) Identification
In relation to identification, the respondent relied on the following:
·Downes’ statement that he saw a male jog past on the footpath outside his house on Kokoda Avenue around 8.40 pm on the night of the alleged offending, preceded by the sounds of someone yelling, together with the statements of the complainant and Christofferson that the offender was heading in the direction of Ballarat road, and was seen near Downes’ vehicle.
·Traces of the applicant’s DNA were detected on the stolen EFTPOS card and the bottle of prescription tablets located at the scene of the alleged stabbing.
·The applicant’s fingerprints were identified on the internal light cover and air freshener packet located in Downes’ vehicle. There is no reason for the applicant’s fingerprints to otherwise be present.
·CCTV footage shows a male at locations in close proximity to the relevant areas at the relevant times, as well as travelling on foot to and from the direction of the applicant’s mother’s residence.
·The applicant’s phone records identify that his phone was active in the Hamilton area on the relevant night, and that he called his brother at 9.57 pm and 12.14am on his way back to the Ballarat area, arriving there at 2.08am.
·Witness descriptions of the offender as Caucasian with dark hair, aged between 27 and 30 years old, between 5 feet 5 inches and 5 feet 8 inches in height and of skinny to solid build, with a face covering and dark clothes, which is said to be an accurate and reasonable description of the applicant.
(c)Availability of accommodation.
The respondent expressed concern as to the suitability of the proposed bail address. It was noted that Mr Wright was found guilty of unlawful assault in March 2020, which appears to have arisen in the context of family violence, and of sexual penetration of a child under 16 years of age in 2014. He is presently the respondent to a Family Violence Intervention Order, naming affected family members (‘AFM’). One of the AFM is Mr Wright’s partner and she also resides at the proposed bail address. It was submitted that Mr Wright’s family situation is such that it is not appropriate for the applicant to reside with him on bail.
In relation to unacceptable risk, the respondent relied on his concerns about the proposed accommodation and the following submissions:
(a)Endangering the safety and welfare of any person .
The respondent submitted that the current charges and the applicant’s prior criminal history demonstrate a ‘propensity for violence’ and disregard for the health and safety of members of the public. In relation to the present charges, the applicant is alleged to have stabbed the complainant, putting him at risk of death or serious injury, and threatened another. In addition, he is alleged to have attempted to commit burglary at an occupied premises while in possession of a knife. As noted, he has previously been involved in a home invasion in which the victim was stabbed multiple times by the co-accused and assaulted by the applicant with knuckle dusters. During that incident, the applicant also covered his face to conceal his identity.
(b)Committing offences while on bail.
It was submitted that the applicant has shown a disregard for court orders in the past, in particular, he was subject to a CCO at the time of the alleged offending and has a conviction for committing an indictable offence while on bail. His high risk of relapsing into drug use is also said to increase his risk of reoffending.
Conclusions
The principal submission in support of establishing exceptional circumstances was that the prosecution case for the most serious offending, intentionally causing serious injury and related matters, is weak. The case is said to be weak because of the absence of identification evidence. The applicant is charged with three sets of related offences.
The evidence capable of being used to identify the applicant is as follows:
·the applicant’s fingerprints have been identified in Downes’ vehicle ;
·the bottle of tablets and the EFTPOS card taken from Nippress’ vehicle were found near both Downes’ vehicle and Mr Turner’s vehicle;
·the applicant’s DNA has been found on both the EFTPOS card and the pill bottle although in relation to the EFTPOS card the probability ratio is very low.
It follows that the applicant can be connected to the incident at the house and the theft from Downes’ motor vehicle. The incident involving Mr Turner’s assault occurred about an hour after the first incident. It is not possible to any extent to say what time the incident occurred with Downes’ vehicle except to say that it was after 7.30 pm.
I am satisfied that by the use of either tendency or coincidence reasoning, taken together with the circumstantial case, it cannot be said that the case as a whole or the case involving the serious charges involving Mr Turner is weak.
It was further submitted that there might be undue delay. The case is listed for hearing on 18 November 2020. Although there is a possibility that because of the COVID-19 pandemic cases may have to be adjourned. There is no certainty that that will be so in this case.
On the application Justin Wright, the applicant’s cousin, was called to give evidence. He was prepared to offer accommodation to the applicant and help him find work.
I observed at the hearing that he appeared to be genuine in his attempts to help his cousin. In the final analysis both the offer of accommodation and offer of help to obtain employment were unrealistic.
It was further submitted that at least until September the applicant would have the assistance of the CCO he is on. The Office of Corrections provided an email about the support that the applicant had been given and his performance on the CCO. I was unimpressed with nearly all the features of what help was given on the CCO and have no confidence of what would happen in the future.
The two matters above were put as part of the surrounding circumstances to which I am obliged to have regard in considering both exceptional circumstances and unacceptable risk. Although in this case it will not be necessary for me to consider unacceptable risk.
I was not satisfied that exceptional circumstances had been shown and I dismissed the application.
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