Re application for bail by Rocco Natale
[2016] VSC 83
•11 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0170
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for bail by Rocco NATALE |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 February 2016 |
DATE OF JUDGMENT: | 11 February 2016 |
CASE MAY BE CITED AS: | Re application for bail by Rocco Natale |
MEDIUM NEUTRAL CITATION: | [2016] VSC 83 |
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CRIMINAL LAW – Application for bail – Incite to murder – Threat to kill – Stalking – Show cause situation – Unacceptable risk – Application refused – No point of principle
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Cronin | Emma Turnbull Lawyers |
| For the Respondent | Mr S Ginsbourg | Office of Public Prosecutions |
HER HONOUR:
Rocco Natale is in custody awaiting trial on 18 April 2016 before this Court.
He makes application for bail. Affidavits were filed by the applicant in support of bail and the respondent in opposition. I accepted the tender of those affidavits as well as the tender of depositions which relate to the applicant’s upcoming trial.
He is a 75 -year-old retired orchardist of Italian background who ordinarily resides in the town of Shepparton.
On 31 July 2014, the applicant was arrested and charged by Detective Senior Constable Michael Guppy with the following offences:
(a) Charge 1: Between 24 and 27 July 2014 at Shepparton, incitement to SD to murder family members of VN[1] (Crimes Act 1958 s 321G).
[1]The names of the alleged victims have been anonymised in this ruling.
(b) Charge 2: On 24 July 2014 at Shepparton, making a demand with menaces of SD, being a threat to kill SD and his children if SD failed to comply with the demand (Crimes Act 1958 s 27).
(c) Charged 3: On 24 July 2014 at Shepparton, threat to kill SD and his children, intending that SD would fear such threats would be carried out or being reckless as to whether he would fear that the threats would be carried out (Crimes Act 1958 s 20).
(d) Charge 4: On 26 July 2014 at Shepparton, stalking VN by following her (Crimes Act 1958 s 21A(1)).
(e) Charge 5: On 26 July 2014 at Shepparton, contravene family violence final intervention order (‘FVIO’) by arranging for another person to approach the protected person on his behalf (Family Violence Protection Act 2008 s 123(2)).
On 26 November 2015, the applicant was committed for trial on the above-mentioned charges by the Magistrates’ Court sitting at Shepparton.
At the time of the events upon which the above-mentioned charges are based, the applicant was already on bail for offences arising after the breakdown of his marriage to VN.
Those charges were laid by Constable Monaghan and were as follows:
(a) Charge 1: At Shepparton between 30 and 31 May 2014, stalking VN (Crimes Act 1958 s 21A(1)).
(b) Charge 2: At Shepparton between the 30 and 31 May, contravene FVIO in respect of VN (Family Violence Protection Act 2008 s 123(2)).
(c) Charge 3: At Shepparton on 31 May 2014, criminal damage to a white RX6 vehicle registration YPQ345 belonging to Barry Toohill (Crimes Act 1958 s 197(1)).
(d) Charge 4: At Shepparton on 31 May 2014, fail to stop after an accident (Road Safety Act 1986 s 61(1)(a)).
(e) Charge 5: At Shepparton on 31 May 2014, driving at an unsafe distance behind another vehicle (Road Safety Road Rules 2009 r 296).
The circumstances of these alleged offences were set out in EM3 of the respondent’s affidavit material.
The FVIO had been made in favour of the applicant's estranged wife, VN, in December 2013.
The applicant is also awaiting the prosecution of an appeal in the County Court of Victoria, following conviction in the Shepparton Magistrates’ Court on 9 May 2014, for the offences of arson and make threat to cause serious injury to VN.
These charges were laid by Leading Senior Constable Paul Van Emmerik and comprised:
(a) Charge 1: At Shepparton on 27 November 2013, did commit criminal damage by fire of a residential house at 74 Newton Street, Shepparton, belonging to Rocco Natale and VN (Crimes Act 1958 s 197(1)).
(b) Charge 2: At Shepparton on 27 November 2013, did make a threat to kill VN, intending that she would fear that the threat would be carried out (Crimes Act 1958 s 20).
(c) Charge 3: At Shepparton on 27 November 2013, did make a threat to inflict serious injury on VN, intending that she would fear that the threat would be carried out or be reckless as to whether the threat be carried out. (Crimes Act 1958 s 21).
The brief prepared by Leading Senior Constable Paul Van Emmerik was EM4 in the respondent’s affidavit material.
The Magistrates' Court hearing in respect of the above-mentioned charges resulted in convictions in respect of charge 1 and charge 3, whereas charge 2 was struck out.
The applicant has a number of previous convictions, although many of them are more than 20 years old, but his convictions include a conviction for blackmail at the Melbourne County Court in 1983.
The application for bail is opposed by the respondent on the grounds that the applicant is in a show cause position pursuant to:
(a) s 4(4)(a) of the Bail Act 1977, the applicant having been charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for the indictable offence of stalking; and
(b) s 4(4)(b)(i) of the Bail Act 1977, the applicant having been charged with the offence of stalking against s 21A(1) of the Crimes Act 1958 and having been in the preceding 10 years convicted of an offence in the course of which he has used or threatened to use violence.
The applicant was convicted on 9 May 2014 of the crimes referred to in paragraph 10 above, in which Leading Senior Constable Paul Van Emmerik was the informant and which involved a threat to use violence against VN.
The Crown maintains that the applicant is unable to show cause why bail should be granted.
Additionally, the informant, Detective Senior Constable Guppy, opposes bail on the grounds that the applicant is an unacceptable risk of committing an offence on bail.
Detective Senior Constable Guppy gave evidence and was cross examined before me.
The background to the alleged offending is as follows.
The applicant met VN via the internet in September 2009, at which time she was living in her country of origin, the Philippines.
Shortly thereafter, the applicant travelled to the Philippines and commenced a relationship with VN.
In December 2009, VN travelled to Australia and stayed with the applicant at his home at 74 Newton Street, Shepparton.
During that period, the applicant arranged to have the title to those premises altered so as to include his new partner on the title.
On 27 February 2010, the applicant married VN.
In August 2012, VN received permanent residency status in Australia.
In June 2013, the marriage became strained and the accused moved into the garage of his premises, which had been converted to a bedroom.
VN announced that she was looking for an alternative residence. However, the applicant warned her that, if she left him, she would not get any money or property following the breakup of the marriage.
In November 2013, VN applied for and obtained an FVIO against the applicant and that order was made final at the Shepparton Magistrates’ Court on 10 December 2013. The applicant was present at court and consented to the order.
The order prohibited the applicant from attempting to locate or follow VN or keeping her under surveillance or engaging any other person to do so.
In July 2013, SD, who is also of Filipino background, moved into an outhouse at 74 Newton Street and maintained friendly relations with the applicant. He was residing at those premises prior to the FVIO being sought by VN.
He had moved into the premises following separation from his wife and children who lived in the region.
In July 2014, the applicant approached SD and offered him $4,000 to kill a member of VN’s family in the Philippines and damage their house. He also offered $1,000 for plane tickets. He explained that he wanted this done because his wife was going to take half of his assets following the separation.
The request met with refusal but, on 24 July 2014, the applicant again raised the issue with SD and tried to give him money to carry out the plan and provided the address for the family of his wife in the Philippines.
SD once again refused to accept the request.
The applicant then threatened to kill SD or his children if assistance was not forthcoming.
SD accepted the $4,000 because of his fear of the applicant, but he had no intention of taking part in the plan
After handing over the money, SD sighted the applicant in the street where his wife and children live. This put him in fear.
On 26 July 2014, the applicant arranged for SD to approach his wife at the Shepparton RSL club on his behalf to speak about a property settlement and tell her to take nothing or say sorry before it was too late. This approach was made despite the existence of the FVIO.
SD complied with the request and approached VN conveying the applicant’s words to her.
VN told the applicant, through the agency of SD, that he could stay in the house at Newton Street as long as he wished but that it would go to her when he died.
This response angered the applicant, who again pressured SD to put the plan into action to kill someone from his wife's family in the Philippines.
On 27 July 2014, SD approached the applicant to return his money but was refused and told, ‘We are in this together now.’
On 29 July 2014, SD reported the threats to Shepparton Police.
On 31 July 2014, SD visited the applicant and gave him back the $4,000, telling him that he would not carry out the planned killing.
The applicant was very angry and insisted that the job be carried out and threatened SD that he and his family would pay for it if it was not done.
This threat was recorded on a mobile phone by SD.
Whilst in custody following being arrested that day, the applicant repeated his determination to teach his wife a lesson in a conversation with a police member conducting a welfare check and admitted that he had paid a person $4,000 to teach his wife a lesson and scare her.
In testifying before me, the informant expressed concerns that the applicant has a determined vendetta against his former wife.
Evidence of this vendetta was obtained in a tape-recorded interview, conducted by Senior Constable Van Emmerik on 27 November 2013, in which the applicant said that he would pay money for someone to go to the Philippines to do something to his wife's family and that she would pay with blood.
In that interview, the applicant said, in response to concerns raised about the threats that he was making, ‘I don't care how many years to [sic] give me gaol. One, two, three, four, five, six.’
The steps taken by the applicant in July 2014 coincide with the threats that he had made and communicated to police eight months earlier in the police interview on 27 November 2013.
Also, the applicant had threatened prior to November 2013 that he would burn down the house to prevent his wife obtaining the benefit of the house. He remained true to his threat by setting fire to the house on 27 November 2013, although the house was not burnt down in its entirety.
The informant was also concerned that, despite bail conditions and an existing FVIO regarding his estranged wife, the applicant nevertheless engaged in the behaviour giving rise to the charges listed for trial in April.
The informant also indicated that both VN and SD are fearful for their safety if bail is granted to the applicant.
The applicant relies on the following combination of factors to support his argument that cause has been shown and that the risk posed by the applicant can be ameliorated.
It was argued on behalf of the applicant that:
(a) the applicant has been in custody since he was arrested in July 2014;
(b) although the trial of the applicant is now approaching, he has spent many months awaiting trial;
(c) the applicant has available to him a suitable address in Harston, 30 minutes’ drive from Shepparton, and could reside there with Mrs Danne, who provided an affidavit and gave evidence in support of bail;
(d) the informant accepted, under cross-examination, that Mrs Danne is a law-abiding member of the community;
(e) Mrs Danne would be in a position to drive the applicant to the police station to report on bail, or for any counselling or other appointments, and that she is generally supportive of him;
(f) the location proposed would create a geographical breakaway from Shepparton and a breakaway from the former matrimonial home and from potential witnesses in the case;
(g) the applicant is in a position to put forward a surety, which would be provided by his former wife or his brother;
(h) although the applicant has previous convictions, they were a long time ago, apart from the convictions of May 2014;
(i) although it is not a weak Crown case, the applicant will be challenging the record of interview conducted on 27 November 2013 because he did not have an Italian interpreter available at that interview;
(j) if the applicant were bailed, he would have the cover of bail conditions and an existing FVIO;
(k) there is no concern held by the informant that the applicant would not appear to answer his bail, as the key concern revolves around the risk of committing offences on bail;
(l) although that risk cannot be completely negated, it can be ameliorated by the conditions proposed.
The respondent maintains their opposition to bail and point to the transcript of the November 2013 record of interview and the transcript of the recorded telephone call with SD in July 2014 as fortifying their case that the applicant has had a longstanding and determined vendetta against his estranged wife. The applicant persisted with his vendetta, in the face of having been previously arrested on two separate occasions regarding his conduct towards his wife, even including having spent a short period of days in custody following one such arrest in November to December 2013.
The respondent also pointed out that, in assessing the question of whether the risk of re-offending is unacceptable, the Court should look to the factors enumerated in s 4(3) of the Bail Act 1977.
I have had regard to those factors and make the following comments in respect of them:
(a) Regarding the nature and seriousness of the offence—the offence of incitement to murder and the related offences charged in July 2014 are very serious and by nature revolve around an apparent continuing vendetta against VN.
(b) Regarding the applicant’s character, antecedents, associations, home environment and background—although he has prior convictions, the more concerning focus is on events since the breakup of his marriage to VN. He has some support available from friends and relatives, but I am not persuaded that those persons will be able to influence the applicant’s future conduct.
(c) As to the strength of the evidence against the applicant—I would describe the Crown case as strong.
(d) As the attitudes of the alleged victims of these offences—they are unfavourable the applicant.
(e) As to the submission that the proposed conditions would sufficiently address the circumstances which may constitute an unacceptable risk—I am unable to be persuaded that those conditions would ameliorate the ongoing risk to those alleged victims.
I note that the factors set out in s 4(3) of the Bail Act 1977 are not exclusive of all the factors that can be taken into account in assessing future risk and determining whether bail should be granted.
Having considered the matters put forward by the applicant and the respondent, I am not satisfied that the applicant has shown cause why bail should be granted.
I am satisfied that there would be an unacceptable risk that the applicant would commit an offence or offences if granted bail in this matter.
In particular, I note that the applicant, is alleged to have committed the July 2014 offences despite:
(a) his previous interactions with police, who had laid charges in November 2013 and May 2014;
(b) having served a brief period on remand in respect of the November 2013 offences; and
(c) having been convicted at the Magistrate's Court for the May 2014 offences.
The July 2014 offences are said to have been committed in breach of bail and an existing FVIO. I, therefore, have no confidence that the applicant has sufficient respect for court orders such as to influence his behaviour. There is no evidence before me of a change of attitude towards his estranged wife or SD.
Although the applicant has been in custody since July 2014—and that is a factor that is relevant to whether cause is shown why bail should be granted—nevertheless, his trial date in this Court is now imminent. If convicted, he is likely to be sentenced to a term of imprisonment
In Robinson v The Queen,[2] Priest JA said:[3]
In some situations a person will not relevantly pose an ‘unacceptable risk’, yet not be able to show cause why his or her detention is not justified. It is difficult to imagine a situation, however, where an accused person charged with an offence falling within s 4(4)(ca) realistically could ever ‘show cause why his detention is not justified’ in circumstances where the court is satisfied that the person poses an unacceptable risk within s 4(2)(d)(i).
[2][2015] VSCA 161.
[3]Ibid 81.
In my view, similar principles apply to the show cause criteria in this case. That is, the seriousness of the risk posed and the lack of material supporting the potential for that risk to be ameliorated is the primary basis for refusing bail, in addition to the fact that the applicant has been unable to show cause why bail should be granted.
Bail is refused.
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