Re Application for Bail by Taylor Griffin
[2020] VSC 312
•26 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0110
| IN THE MATTER of the Bail Act 1977 |
| – and – |
| IN THE MATTER of an Application for bail by Taylor Griffin |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 May 2020 |
CASE MAY BE CITED AS: | Re Application for Bail by Taylor Griffin |
MEDIUM NEUTRAL CITATION: | [2020] VSC 312 |
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CRIMINAL LAW – Application for Bail – Whether Compelling reasons – Whether unacceptable risk – ss 4AA(3), 4C(1A) and 4C(2) of the Bail Act 1977 (‘the Act’) – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Adrian Lewin | Emma Turnbull Lawyers |
| For the Respondent | Neill Hutton | Office of Public Prosecutions |
HER HONOUR:
Introduction
The applicant, Taylor Griffin is a 26 year-old man who seeks bail in respect of nine charges arising out of an incident which occurred on 15 January 2020. (‘the Kingsville incident’). The applicant was charged by Detective Senior Constable McLuckie with the offences of Charge 1 Aggravated burglary (offensive weapon); Charge 2 Aggravated burglary (person present); Charge 3 Intentionally cause serious injury in circumstances of gross violence; Charge 4 Intentionally cause serious injury; Charge 5 Recklessly cause serious injury; Charge 6 Intentionally cause injury; Charge 7 Recklessly cause injury; Charge 8 Make threats to kill; Charge 9 Commit an indictable offence whilst on bail.
The victim in respect of Charge 3, 4, 5 and 8 is alleged to be MM. The victim in respect of Charge 6 and 7 is alleged to be BS. Self-evidently some of the charges are laid in the alternative.
The charges of aggravated burglary relate to the applicant’s attendance at 158 Chirnside Street, Kingsville which was the residence of BS and her father on 15 January 2020.
BS was in bed with her friend MM, when it is alleged that the accused entered as a trespasser and attacked MM with a crowbar to the arms and head causing him serious injury. The accused had been in a relationship with BS for approximately three months, but she alleges that she had recently ended the relationship.
By way of background it seems that BS was seeking to end her relationship with the applicant in January 2020, but he was in the habit of entering her home through an unlocked rear door. There were some text messages and a phone call between the two in the period leading up to the alleged offending.
It is not in dispute that on 15 January 2020 the applicant drove his black Nissan Navara vehicle to a location proximate to BS’s home around 6.45am in the morning and parked nearby. CCTV footage shows the applicant approaching the premises carrying a concealed item believed by police to be the crowbar. When he entered the property, it can be inferred that he had a crowbar with him. Once inside the house the applicant entered BS’s bedroom. BS and MM were asleep in bed. BS alleges in her police statement that she awoke to find the accused sitting on top of her squeezing his legs against hers so that she could not move, and that he was holding a crowbar and yelling ‘You’re meant to be with me, you’re meant to love me. Who is this? I thought you were with Mason. Who is this guy? Oh well, it doesn’t matter who he is, I’m going to kill him.’
It is then alleged that the applicant began to attack the male victim (MM) with the crowbar, striking him on the head and arms. BS tried to get between the applicant and the male victim to stop the assault but was grabbed by the throat and thrown aside. The applicant told BS he would stop assaulting the male victim if she went outside to talk to him. BS left the room with the applicant, and they went to the front porch area. CCTV captured the applicant pushing her against the front wall of the house before smashing the wall of the house with the crowbar near to BS’s head.
As a result of this episode the male victim received fractures to both check bones and to his left and right arm. He sustained substantial blood loss from lacerations to the head in the course of the incident. It was conceded on behalf of the applicant that the injuries inflicted were sufficient to meet the descriptor of ‘serious injury’ as defined in the Crimes Act1958.
The relevant provisions of the Bail Act
Step 1 – Compelling reason test
The Court must refuse bail unless satisfied by the applicant that a compelling reason exists that justifies the grant of bail pursuant to ss 4AA(3), 4C(1A) and 4C(2) of the Bail Act 1977 (‘the Act’).
The compelling reason test is enlivened because the applicant is charged with committing Schedule 2 offences. Schedule 2 offences include all of the following: an indictable offence that is alleged to have been committed by the accused whilst on bail for another indictable offence; an offence against section 15A(1) of the Crimes Act 1958 (causing serious injury intentionally in circumstances of gross violence); an offence against section 16 of the Crimes Act1958 (causing serious injury intentionally); an offence against section 77 of the Crimes Act1958 (aggravated burglary); an indictable offence in the course of committing which the accused, or any person involved in the commission of the offence, is alleged to have used or threatened to use a firearm, offensive weapon, or explosive as defined by section 77 of the Crimes Act 1958; and an offence against the Bail Act 1977.[1]
[1]Schedule 2 (referring to s 30 Bail Act).
The applicant had been previously charged by Constable Mackus with four charges: Attempted theft, Unlawful assault and two charges of Possess a drug of dependence. The incident related to an episode on 13 November 2019 at Southern Cross Woolworths where the applicant assaulted a security guard when he was approached and told to pay for an item (‘the Woolworths incident’).
Bail was granted on those charges, three of which were indictable offences. Therefore, the applicant was on bail for indictable offences at the time that he was charged over the Kingsville incident. The Mackus brief resolved and was finalized at the Melbourne Magistrates’ Court on 26 March 2020 and the applicant was convicted of Unlawful assault and fined $500. The remaining charges were dismissed pursuant to s 76 of the Sentencing Act1991.
In considering whether a compelling reason exists, the Court is required to take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act. A synthesis or balancing of all relevant matters, including those set out in s 3AAA of the Act, must compel the conclusion that the applicant’s detention is not justified. To meet this threshold, an applicant is not required to show a reason which is irresistible or exceptional, rather, a ‘compelling reason is one which is forceful and therefore convincing – a reason which is “difficult to resist”’[2].
Step 2 - Unacceptable risk test
[2]Rodgers v The Queen [2019] VSCA 214 [43].
Even where the Court is satisfied that compelling reason exists for the grant of bail, the Court must refuse bail if, upon applying the unacceptable risk test, the Court is persuaded that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail.[3] The respondent bears the burden of showing that the risk is an unacceptable risk.[4] Under s 4E(3) the Court is again directed to consider the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether there are any conditions of bail that can be imposed to mitigate risk so that it is not an unacceptable risk.
[3]The Act s 4E(1).
[4]Ibid 4E(2)(a)-(b).
Other offending or outstanding charges
The applicant was dealt with for driving offences and causing damage to a car side mirror in a dispute over a parking spot and upon pleading guilty to certain charges at Broadmeadows Magistrates’ Court on 4 July 2019, the matter was adjourned for five months on condition that he be of good behaviour and complete an anger management course (‘the parking spot incident‘).
Informant Baykur has also now charged the applicant with two charges of contravening the abovementioned undertaking.[5] I was informed by the parties that the breaching conduct included further offending during the period of the bond (the Mackus charges comprising the Woolworths incident) and failure to complete the anger management course. The Baykur charges were laid after the Kingsville incident.
[5]Charged on summons on 8 April 2020.
Further, Informant Kadric has issued a summons on charges involving Unlawful assault and Causing damage[6] in relation to an alleged assault on the applicant’s sister at his parents’ home on 14 December 2019. That incident, occurring at the applicant’s family home, gave rise to family violence intervention orders (‘FVIOs’) being made in favour of the applicant’s mother and sister. The applicant was arguing with his mother about his drug use and became highly agitated and began damaging property inside the house which included stabbing a plaster wall with a knife. He pulled his sister’s hair whilst trying to get hold of her phone when she was in the process of calling police for assistance. The applicant was apprehended and engaged in self harming behaviour. He was detained under the Mental Health Act2014 for assessment by Northern Hospital. Whilst FVIO’s to protect the applicant’s mother and sister were made soon after the incident, the charges post-date the Kingsville incident.
The grounds relied on by the applicant under Step 1 and Step 2 of the Bail Act
[6]Issued on 31 March 2020.
The applicant was refused bail in the Magistrates’ Court on 20 April 2020 on the charges arising from the Kingsville incident. The case is listed for committal on 2 March 2021. The surrounding circumstances relied on by the applicant as showing a compelling reason for the grant of bail include the following:
·Whilst conceding the alleged offending is very serious, regarding the strength of the prosecution case, the applicant submits that that the conduct of BS involved mixed messages about ending their relationship which may bear on the aspect of trespass relevant to aggravated burglary. BS sent multiple text messages to the applicant prior to the incident and some messages afterwards. The affidavit in support of bail exhibits the text messages including messages in which BS stated that she was in danger and needed $200.
·The applicant’s criminal history is very limited.
·Whilst the applicant faces one charge of committing an indictable offence whilst on bail, he has no proven history of non-compliance with bail.
·Although the applicant was on bail at the time of the Kingsville incident, the matters for which he was on bail at the time have now been finalised.
·The applicant accepts that at the time of the offending there were two Family Violence Intervention Orders in place, but the Kingsbury incident did not involve the persons for whom the Family Violence Intervention Orders were made.
·The applicant comes from a supportive family and normally resides with his parents at the proposed bail address.
·The applicant has a good work history having completed a four-year carpentry apprenticeship and worked at IRL Constructions as a carpenter before moving to a different company for better pay in 2018. The applicant’s mother, Ms Griffin, gave evidence that IRL Constructions are aware the applicant is currently on remand and have offered him employment if he is granted bail.
·The applicant has suffered from a long-term methamphetamine addiction but is submitted to be ready to pursue rehabilitation. He began using drugs at the age of 18, ceased for a period of time in 2018, but relapsed in mid-2019.
·A Court Integrated Services Program (‘CISP’) report dated 6 April 2020 assesses the applicant as a suitable candidate for intensive case management including referral to appropriate substance abuse treatment and mental health supports, self-referral to a men’s behaviour change program and an anger management course. The applicant acknowledges that his offending behaviour is linked to his substance abuse and anger management difficulties and has indicated a willingness to engage with support services in this regard.
·The applicant is likely to spend a lengthy period of perhaps thirty months or so on remand awaiting trial if bail is refused. COVID-19 trial suspensions make it hard to quantify the delay, but the applicant alleges the delay is likely to be inordinate. Conditions in custody are more onerous because of COVID-19, which leaves the applicant in lockdown for a large proportion of the day and without services to assist him to rehabilitate.
·The applicant’s parents are prepared to help supervise him on bail at their home address and his mother offers a $10,000 surety.
·Additional protection is offered by the existence of the FVIO’s protecting the applicant’s mother and sister and the complainant and a PSIO protecting the male victim.
·The applicant has spent four months in custody despite never having been in prison before.
In response to the submission by the respondent that the applicant poses an unacceptable risk, the applicant submits that such risk can be mitigated by the imposition of appropriate bail conditions, including that he comply with all lawful directions of CISP and not contact any witnesses for the prosecution.
The evidence of Anne Griffin
The applicant’s mother, Anne Griffin gave evidence at the hearing. She told the Court she had been aware of her son’s drug use for about two years. She said that he attended ‘a detox program’ in Bendigo in August of 2019 which lasted one week. She believed he was not referred for follow up rehabilitation after the detox program. After he exited the detox program, she described his behaviour as good for a little while but that he then started to ‘slip back into drugs again’.
Ms Griffin said that if the applicant started using drugs again, she would be better equipped to notice the signs because she has completed a six-week course, for parents and relatives of persons with substance abuse issues.
She said she had been in regular contact with her son since he was taken into custody on 15 January 2020. She feels he is a different person than when he went into gaol and he has had time to reflect and develop routines that would help him recover. She said the applicant had expressed remorse and a desire to continue the routines he had developed in custody if he was granted bail.
Ms Griffin said she was willing to put up $10,000.00 surety. She said she would be willing to supervise her son and that if he breached any of his bail conditions, she would have no other choice but to notify the informant of the breach.
Evidence of James McLuckie
The informant, Detective Senior Constable James McLuckie, gave oral evidence at the hearing. The informant provided further information regarding the timing of the text messages and phone calls between the applicant and the complainant, BS, that took place on 14 and 15 January 2020, that is the night before and the morning of the alleged offending. When asked by counsel for the applicant whether he had asked BS about what was discussed during these phone calls, the informant reported that BS said she was using drugs at the time and she had asked the applicant for help buying drugs. However, the informant reported BS said she did not invite the applicant over to her house. The informant told the Court that one of the victims, Mr MM, had a criminal record and was known to police.
Arguments in opposition to bail
In response to the current application the respondent opposes bail arguing that there is a strong prosecution case against the applicant and that any text messages that may have been sent by BS are not consistent with the suggestion that she was in danger or needed rescuing at the time he intruded.
Counsel for the respondent submitted that there was an eight-hour lapse between the text messages sent by BS asking for help and the applicant’s attendance at her house. The gravamen of the offending is the act of entering BS’s bedroom armed with a crowbar and attacking the male victim who had been asleep in bed and plainly not posing any danger to any person. The applicant continued to engage in protracted assaults despite the protests of BS, and the applicant made numerous threats to kill the male victim, without mentioning the need to protect her from the male victim. Regarding the strength of the prosecution case overall, the respondent notes that both complainants witnessed the offending and their account of what took place is supported by other evidence, including the 000 call and CCTV.
The injuries inflicted by the applicant were serious and included[7] multiple fractures to the male victim's face, and fractures to each limb as well as the lacerations to his head. Significant blood loss from two head wounds led to very low blood pressure when seen by paramedics at the scene. Surgical treatment was required for some of the male victim’s injuries and he remained in hospital until 21 January 2020.
[7]Report of Dr Rachel Maher of the Victorian Institute of Forensic Medicine. Dr Rachel Maher described the injuries received by the male victim as medically serious.
Two months prior to the Kingsville incident the applicant had been placed on bail on other indictable charges and he had also been released on summons for other offences.
Regarding the availability of the CISP to support the applicant on bail, the respondent notes that due to COVID-19 there is likely to be significant restrictions on the services available from CISP to supervise the applicant.
Although there are likely to be delays in the finalisation of the proceedings due to COVID-19, if convicted, the applicant will be likely sentenced to a period in excess of his time in remand.
The complainants have been consulted and each oppose bail being granted.
The offending was committed whilst on bail for an indictable offence and the applicant is at risk of committing further offences whilst on bail due to his long-term drug addiction. He has shown little commitment to overcoming his drug addiction in the past several years. The applicant failed to attend the anger management course as required by the adjourned undertaking imposed in July 2019. He breached his undertaking by further offending. Accepting that he is not using drugs in prison, the period he has spent on remand is unlikely to be sufficient to lead to the applicant overcoming years of giving way to the temptation of drugs.
The respondent does not regard the bail address put forward by the applicant as appropriate, given that it is the residence of his mother who is an affected family member in a FVIO following the December 2019 incident. The order prohibits the applicant from attending the family home or going within 200 metres of that address if affected by or consuming drugs or alcohol. The applicant would not have any other address to go to if he was substance affected.
Although the applicant has also been placed on a FVIO regarding BS and her children, and a Personal Safety Intervention Order regarding MM, little comfort can be gained from those orders if the applicant were minded to breach bail conditions, for example by visiting BS.
In summary, the respondent submits that the applicant has not shown a compelling reason justifying the grant of bail and that the applicant is an unacceptable risk of endangering the safety and welfare of any person, or interfering with a witness (BS) since he knows where she resides.
Analysis
I have carefully considered the matters put forward by the applicant and the respondent. I have no doubt of the sincerity of the applicant’s mother in her desire to assist him to rehabilitate from drugs, and her bona fides in offering a significant surety. The applicant has some important matters in his favour with the support of his family, a good employment record and the offer of work, a relatively modest history of offending and the fact that this is his first time in custody. COVID-19 means that the conditions for inmates are more difficult, with reduced access to family and friends, and reduced programs offered in custody. Delays before the matter is finally heard by jury trial are difficult to quantify, but are likely to be lengthy given that the date set for committal is March 2021.
On the other hand, the Kingsville incident involves allegations of a most serious nature. It is hard to see how the applicant could submit that the core allegations are likely to be other than strongly made out. Of course, if the matter proceeds to trial it will be for a jury to decide whether the applicant should be convicted. On the facts alleged, both victims were woken from sleep when the applicant set upon the male victim with a crowbar in a terrifying and protracted attack. Photographs of the crime scene show blood spatter throughout the bedroom and on clothing worn at the time. The 000 call supports the account of both victims as does CCTV footage, and the evidence of neighbours. There is footage of the applicant wielding the crowbar on the front porch of the house. Ultimately, the male victim was so frightened he climbed onto a roof to escape the applicant. His physical injuries from the attack involved protracted medical treatment, but I have no doubt that there will also be lasting mental consequences for him.
BS is also alleged to have been the victim of very frightening conduct with the applicant smashing the wall of the house when she tried to reason with the applicant. It is not at all surprising that each alleged victim is opposed to the applicant being granted bail. Of course, the attitude of the alleged victims is not determinative, however, it is a relevant consideration.
Apart from the gravity of the alleged offending there are other surrounding circumstances that the Court finds troubling when assessing the applicant’s prospects for bail, both in considering the compelling reason test and the question of whether risks posed by the applicant are unacceptable. One such factor is that the applicant appears to have a long-entrenched addiction to methamphetamine that has subsisted despite living at home with his family and holding down employment. Regarding other offending, the Woolworths incident and the parking spot incident are both examples of poor impulse control. The applicant was allegedly unable to motivate himself to comply with the adjourned undertaking entered at Broadmeadows Magistrates’ Court in July 2019. He did not comply with the requirement to complete an anger management course. This does not bode well for a favourable assessment of the applicant’s prospects for complying with bail conditions.
The allegations arising from the family violence episode in the family home occurred in the context of his mother arguing with him about his drug use, suggesting that his family have not been able to be effective in helping the applicant overcome his addiction. Again, this incident is suggestive of a significant problem with anger and impulse control. The applicant’s mother, whilst well-meaning and devoted, was unable to persuade the applicant to hand himself in to police after the Kingsville incident.
Viewing all the surrounding circumstances holistically, I am not satisfied by the applicant that a compelling reason has been shown why bail should be granted for these serious charges. At the present time the Court is unable to say that the applicant is likely to spend more time on remand than he would be required to serve if convicted and sentenced in respect of the core offences forming part of the Kingsville incident. The applicant is facing a lengthy sentence if convicted of the current charges. According to his mother, the applicant has stabilised to some degree within the confines of the Marngoneet Unit and is responding well to a more structured life without reliance on the crutch of methamphetamine. However, if released on bail, the applicant is likely to be tempted to resume the lifestyle he was leading when he was arrested in January 2020, without the containment that is currently in place.
As stated, I am not satisfied that a compelling reason exists for granting bail. I am also persuaded by the respondent as to unacceptable risk.
Even residing with and having the support of family, a surety, a job to go to, and the support of CISP, the applicant is quite likely to relapse into drug use. The mental and emotional chaos that might then ensue would increase the risk that the applicant would engage in conduct that would endanger the safety or welfare of a person (such as BS), commit further offences whilst on bail, or interfere with a witness or witnesses (such as the alleged victims). I have found the risk to be unacceptable in light of all the surrounding circumstances. I am not satisfied that the surety and conditions suggested by the applicant would mitigate the risk the applicant poses to an acceptable level at this point in time. Bail is refused.
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