Re Argyropoulos
[2017] VSC 718
•27 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0261
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by BILL ARGYROPOULOS |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2017 |
DATE OF JUDGMENT: | 27 November 2017 |
CASE MAY BE CITED AS: | Re Argyropoulos |
MEDIUM NEUTRAL CITATION: | [2017] VSC 718 |
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CRIMINAL LAW – Bail – Multiple charges – Multiple prior convictions – Prior convictions for committing indictable offences while on bail – Prior convictions for contravening court orders – Prior convictions for failing to answer bail - Show cause situation – Whether unacceptable risk – Unacceptable risk – Cause not shown – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S P Devlin | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms C M Randazzo SC | Melasecca Kelly & Zayler |
HIS HONOUR:
On 19 September 2017, the applicant was charged with:
·causing injury intentionally;
·causing injury recklessly;
·false imprisonment;
·threatening to inflict serious injury;
·threat to kill;
·possessing a prohibited weapon without exemption/approval;
·committing an indictable offence while on bail;
·contravening a bail condition;
·possessing a drug of dependence (methylamphetamine);
·trafficking methylamphetamine; and
·dealing with property suspected of being the proceeds of crime.
On 4 October 2017, the applicant was charged with one further offence — kidnapping.
The applicant has been in custody since 19 September 2017. On 17 October 2017, he applied to a magistrate for bail. Bail was opposed on the basis that, under the provisions of the Bail Act 1977 (‘the Act’), the applicant was required to show cause why his detention in custody is not justified.[1] Bail was also opposed on the ground that there was an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail, endanger the safety and welfare of members of the public, and interfere with witnesses or otherwise obstruct the course of justice.[2]
[1]Section 4(4) of the Act.
[2]Section 4(2)(d) of the Act.
In his application to the magistrate for bail, the applicant was required to show cause why his detention in custody was not justified. This is because the charges against the applicant include committing an indictable offence while on bail,[3] making a threat to kill in circumstances where he had been found guilty of failing to answer bail within the preceding five years,[4] and trafficking a drug of dependence.[5]
[3]See s 4(4)(a) of the Act.
[4]Section 4(4)(ab) of the Act.
[5]See s 4(4)(ca) of the Act.
On 17 October 2017, the magistrate refused the applicant’s application for bail. The application was refused because the applicant failed to persuade the magistrate that he had shown cause why his detention in custody was not justified. Additionally, the magistrate concluded that there was an unacceptable risk that the applicant would, if released on bail, commit an indictable offence while on bail, endanger the safety and welfare of members of the public, and interfere with witnesses or otherwise obstruct the course of justice.
The applicant now applies in this Court for bail. In an affidavit sworn by the applicant’s solicitor, the applicant’s solicitor submits that, in the words of the solicitor, the applicant:
does show cause that his continued detention is unjustified relying on the following constellation of factors:
1. Strength of Crown case — particularly the issue of identification.
2.Availability of treatment both psychiatric, psychological and for issues with illicit drugs in the community.
3.Delay.
4.Availability of residence.
5.Ties to the jurisdiction.
The alleged offending
The present charges arise out of events alleged to have occurred in the early hours of 8 September 2017. The first five charges, and the later added charge of kidnapping, involve a single complainant.
The Crown case is that the applicant and a co-accused assaulted the complainant. The applicant is alleged to have punched the complainant to his face approximately five to seven times, and later to hit the complainant to the back of the head approximately four times with his fist. The applicant and his co-accused are also alleged to have threatened to stab the complainant and to cut the complainant’s throat if he did not give them money that they claimed he owed. The applicant and his co-accused are alleged to have detained the complainant, first in a vehicle and then later at an address for approximately three hours. They are then alleged to have left the address, with the applicant and his co-accused telling the complainant that ‘if he played up, they would kill him, stab him and cut his throat’. The Crown case is that while this was being said, the applicant and his co-accused were sharpening knives.
At the time of this alleged offending, the applicant was on bail awaiting trial for other indictable offences including a charge of robbery. A plea hearing is due to be conducted in the County Court in March 2018 in relation to charges of robbery, attempted theft, common assault, possessing a drug of dependence, negligently dealing with the proceeds of crime and possessing a prohibited weapon without a relevant exemption or approval.
The applicant’s co-accused was arrested a few days before the applicant. In argument this morning, counsel for the applicant referred to the fact that the co-accused has been granted bail by a Magistrate. Counsel, however, acknowledged that the co-accused’s prior criminal history is considerably less extensive than the applicant’s history. Counsel went on to observe that the case against the co-accused was, however, stronger than the case against the applicant.
The applicant’s prior criminal history
The applicant is 49 years of age. He has a prior criminal history dating back to 1989. More recently, he has prior convictions in 2017 for contravening a suspended sentence order, persistently contravening a family violence notice or order, burglary, possessing a prohibited weapon (multiple charges) and committing an indictable offence while on bail (two charges); convictions in 2016 for unlawful assault, committing an indictable offence while on bail and contravening a conduct condition of bail; and convictions in 2015 for recklessly causing injury, trafficking heroin, failing to answer bail (two charges) and contravening a community correction order.
At the time of his alleged offending on 8 September 2017, in addition to being on bail in respect of other matters, the applicant was also on a community correction order that had been imposed in the County Court on 20 March 2017, and which was not due to expire until 19 September 2018.
The parties’ contentions
The emphasis of the applicant’s argument was that, notwithstanding the applicant’s past criminal history, he has, since at least March 2017 engaged appropriately in a detailed regime of treatment such that the Court could be more confident that, if released on bail, the applicant would not pose an unacceptable risk of the kind referred to in the provisions of the Act. Reliance was placed specifically upon the opinions of Mr Crewdson and Ms Abadee, who were present in court this morning to give evidence in support of the application for bail. Their opinions were that the applicant is now engaged with treatment and that it would be in his best interests for that treatment to continue.
In addition to support from Mr Crewdson and Ms Abadee, the applicant also had the support of his ex-wife (and other family members), who came to court to give evidence of her observations of relevant changes in the applicant that, it was submitted, would justify a grant of bail. The applicant’s ex-wife had also obtained accommodation at Quest apartments for the applicant if bail were to be granted, and indicated (through the applicant’s counsel) that she would be prepared to provide a surety in the sum of $10,000.
The respondent opposed bail, largely on the basis of the applicant’s prior criminal history. As to the proposition that the applicant is now more engaged with treatment, and thus more unlikely to pose an unacceptable risk within the meaning of the Act, counsel for the respondent pointed to the sentencing remarks of Judge Mullaly on 20 March 2017 wherein judge Mullaly noted the evidence of Mr Crewdson, Ms Abadee and Dr Riebl that, at that time (some six months before the current alleged offending), the applicant had ‘settled, gained insight and [was] reconstructing [his] life’.[6]
[6]DPP v Argyropoulos (Unreported, County Court of Victoria, Judge Mullaly, 20 March 2017).
In reply, counsel for the applicant noted that the applicant’s mother died shortly before the current alleged offending. Counsel sought to contend that, but for the affect the death of the applicant’s mother would have had on the applicant, the applicant was nevertheless still engaged in his treatment, and that it was in the community’s interest that this be allowed to continue.
The resolution of this application
As a result of the operation of ss 4(4)(a), 4(4)(ab) and 4(4)(ca) of the Act, the applicant is required to show cause why his detention in custody is not justified. The short answer to the present application is that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to his bail. The applicant’s history of non-compliance with previous bail and other court orders makes that conclusion plain.
Equally, the applicant’s past history discloses that, if he were to be released on bail, there would be an unacceptable risk that he would commit an offence while on bail and/or endanger the safety or welfare of members of the public. Moreover, having regard to the applicant’s past history and the allegations made by the complainant in this case, there is a real (and also unacceptable) risk that the applicant would attempt to interfere with witnesses.
Additionally, I am unpersuaded that any of the matters relied upon by the applicant (either alone or in combination) show cause why his continued detention in custody is not justified. Having regard to the applicant’s history, without any disrespect to those who are endeavouring to treat the applicant, the psychiatric, psychological and counselling evidence relied upon by the applicant is not particularly compelling. No doubt the applicant (and also the community) would benefit from the applicant continuing to receive the treatment and counselling he has received, from Mr Crewdson, Dr Riebl and Ms Abadee, for his various psychiatric/psychological conditions and substance abuse issues. Nothing in the reports tendered, or in the opinions expressed, on this application, however, persuades me that these issues require, or permit, in the proper application of the Act, the release of the applicant from custody.
While the applicant asserts that there is a lack of strength in the Crown case, I am not persuaded that the Crown case is so lacking in strength as to justify the release of the applicant. While the applicant has foreshadowed that the issue of the identification of him, as one of the complainant’s attackers, is disputed, I do not see the relative strengths on this issue (either alone or in combination with the other matters relied upon by the applicant) as showing cause why the applicant’s continued detention is not justified. Moreover, CCTV photographs, tendered this morning, that appear to show the applicant in circumstances where he might readily be identified in relation to some of the events that are the subject of the Crown case, tell against the proposition that the Crown case could be described as a weak one.
Turning to the applicant’s assertion of delay, there is nothing in the chronology of this proceeding that suggests that there will be delay of a kind that might, alone or in combination with the other matters relied upon by the applicant, justify the release of the applicant from custody.
While there was reference by the applicant to the fact that the applicant’s co-accused was granted bail, as being a relevant consideration in this case, the answer to that proposition is that the co-accused has a very limited criminal history, is 16 years younger than the applicant and has no negative bail history.
Giving full weight to all of the matters relied upon by the applicant in his attempt to show cause why his detention in custody is not justified, the critical question in this application remains whether the applicant’s release from custody would give rise to an unacceptable risk of the kind referred to in s 4(2)(d) of the Act. In my view, the applicant’s past criminal history discloses that, if he were to be released on bail, he would, notwithstanding his current progress in treatment, likely commit further offences and/or endanger the safety or welfare of members of the public. Further, one could not have any confidence that any conditions imposed upon a grant of bail would ameliorate these risks so as to make them not unacceptable. The same can also be said in relation to the applicant’s risk of failing to answer bail.
Conclusion
The applicant has not shown cause why his detention in custody is not justified. His application for bail must therefore be refused.
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