Re Bertucci
[2020] VSC 88
•2 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0022
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by Anthony BERTUCCI |
---
JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2020 |
DATE OF JUDGMENT: | 2 March 2020 |
CASE MAY BE CITED AS: | Re Bertucci |
MEDIUM NEUTRAL CITATION: | [2020] VSC 88 |
---
CRIMINAL LAW - Bail – Breaches of family violence intervention order – Recklessly causing injury – Failing to answer bail – Committing an indictable offence whilst on bail – Prior convictions for family violence offences, failing to answer bail, and committing indictable offence whilst on bail – Whether previous history of family violence towards same complainant not resulting in findings of guilt should be taken into account – Whether exceptional circumstances exist – Whether unacceptable risk of offending or endangering the safety of a person, re-offending, or interfering with a witness – Favourable attitude of complainant to grant of bail important but not determinative – Exceptional circumstances not established – Unacceptable risk in any event – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Dickinson QC | Doogue + George Defence Lawyers |
| For the Respondent | Ms A Phelan and Ms B Cowley | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
By summons dated 19 April 2019, Anthony Bertucci (‘the applicant’) was charged with contravention of a family violence intervention order (‘FVIO’) (18 charges) and persistent contravention of a FVIO. Those charges relate to events alleged to have occurred between 19 November 2018 and 5 February 2019 (‘the informant Sidorovska matter’).
On 24 May 2019, the applicant failed to appear at the Sunshine Magistrates’ Court in answer to the summons and a bench warrant was issued for his arrest. He was arrested on 8 August 2019 and released on bail by Victoria Police. On 23 September 2019, after the applicant again failed to appear in the Sunshine Magistrates’ Court, an order was made forfeiting the applicant’s bail and a further bench warrant was issued for his arrest.
On 2 October 2019, the applicant was arrested and charged with recklessly causing injury, unlawful assault (2 charges), contravention of a FVIO, failing to answer bail and committing an indictable offence whilst on bail (‘the informant McKay matter’). These charges relate to events alleged to have occurred on 23 September 2019 and 1 October 2019.
The applicant has been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges. By notice dated on 11 February 2020, the applicant seeks a grant of bail in this Court. The applicant’s matters are next listed for a contested hearing in the Sunshine Magistrates’ Court on 28 April 2020.
The parties accept that the applicant is charged with Schedule 2 offences under the Bail Act 1977 (‘the Act’) in the informant McKay matter, which are alleged to have been committed while on bail for a Schedule 2 offence in the informant Sidorovska matter. As a result, bail must be refused unless the applicant can satisfy this Court that exceptional circumstances exist that justify the grant of bail.
The alleged offending
Background
The applicant and Olga Tarabykina (‘the complainant’) are currently in a relationship and have been intermittently romantically involved for the past 10 years. They have three children together, aged between three and six years. At the time of the alleged offending in the informant Sidorovska matter, the applicant and complainant were separated and living in different residences and a final no-contact FVIO was in place against the applicant naming the complainant and the children as the affected family members (‘the FVIO’).[1] The applicant was not present at the hearing of the application for the FVIO and the order was served on him via alternative means (leaving a copy at his residence) on 19 November 2018.
Informant Sidorovska
[1]Relevantly, the conditions of that order prohibited the applicant from committing family violence against the affected family members and contacting or going within 5 metres of them or 200 metres of where they live, work, or attend school or child care.
The prosecution case is that the applicant breached the FVIO on 18 occasions between 19 November 2018 and 5 February 2019, including by approximately 70 phone contacts with the complainant and attending her residence in her absence on 5 December 2018. On that occasion, the complainant reported to police that she had returned home to find that a slide-chain lock had been removed from an internal front door and that several items of property were missing. On 1 January 2019, she advised police that the missing property had been returned to her by the applicant.
On 5 February 2019, police attended the applicant’s residence and observed both him and the complainant to be present. The applicant was arrested and conveyed to Melton Police Station. During his police interview, the applicant denied any knowledge of the FVIO. He noted that he had been in contact with the complainant and attended her residence on multiple occasions in December 2018 to renovate the property. He denied any allegation of theft and was released pending summons. On the same day, the complainant made a further statement withdrawing her original complaint.
The complainant subsequently applied to vary the FVIO. The FVIO was varied on 19 February 2019 to a single condition order prohibiting the applicant from committing family violence against the affected family members. Following the variation of the FVIO, the applicant and complainant commenced living together in Brookfield in separate bedrooms.
Informant McKay
On 1 October 2019, the applicant was at home with the complainant and their children. At approximately 6.00 pm, it is alleged that the applicant locked himself in his bedroom after taking the complainant’s phone. The complainant made efforts to retrieve her phone by hitting the bedroom door with her fists and a cordless drill, yelling to the applicant to return her phone.
In summary, the prosecution case is that the applicant opened the bedroom door and struck the complainant’s left knee with a cricket bat. The complainant threw the cordless drill at the applicant, hitting his hand, and the applicant allegedly retaliated by striking the complainant’s head with his hand. The complainant’s phone was returned to her following this incident.
At approximately 12.00am, the applicant reported this incident to police. The complainant was arrested at their home in Brookfield and transported to the Melton Police Station. She made admissions to throwing the drill at the applicant and damaging his door with the drill during a police interview, and also stated that the applicant had hit her leg with a cricket bat and her head with his hand. Police took photos of the complainant’s injuries and released her pending summons.
At approximately 4.30pm on 2 October 2019, police arrested the applicant in respect of the previous day’s events and the outstanding bench warrant for his failing to appear in the Sunshine Magistrates’ Court on 23 September 2019. The applicant was conveyed to the Melton Police Station. During a police interview, he indicated that he was aware of the FVIO prohibiting him from committing family violence, but denied striking the complainant to the knee or the head. He stated that the complainant was the aggressor during the incident.
The applicant was charged and remanded in custody. He applied for and was refused bail later that day. At the bail hearing, a police application was made to vary the conditions of the FVIO. That application was unsuccessful, and instead, an interim order was made extending the 19 February 2019 FVIO until further order. That order remains in place at the time of the present application.
The applicant
The applicant is 38 years old. Prior to being on remand, he resided in Brookfield with the complainant and their three children. He has maintained employment throughout his adult life, including his most recent role as owner and manager of The Men’s Grooming Salon which he ceased managing in 2019. If granted bail, the applicant intends to commence working at the Moonee Ponds Barber Shop which is owned by his stepfather, Umberto Carelli.
Criminal history
In 2013, the applicant was placed on an adjourned undertaking for supplying liquor outside the conditions of a licence. He complied with that undertaking. In 2015, the applicant was convicted of unlawful assault, persistent contravention of a FVIO, failing to answer bail, making a threat to kill and committing an indictable offence while on bail (two charges). He was sentenced to 72 days’ imprisonment, reckoned as time served, and placed on a community correction order (‘CCO’) for nine months. In 2017, the applicant was found guilty of contravening the CCO and fined in respect of the original 2015 offences.
The offending the subject of the 2015 hearing involved family violence against a different female partner of the applicant, Gabriele Huon. Amongst the charges of which the applicant was convicted were two charges of unlawful assault and a charge of making a threat to kill, which threat was uttered by the applicant whilst in possession of a large knife. The offending was very serious. There were also a number of charges which had been laid in respect of the current complainant. These charges did not proceed.
The law
Section 1B of the Act sets out the guiding principles of the Act and reads in part as follows:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
…
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 4 of the Act makes plain the fact that there is to be a presumption in favour of the granting of bail.
As indicated already, section 4AA(2) of the Act dictates that the exceptional circumstances test applies in this case. Pursuant to s 4A(1A) of the Act, I must refuse bail unless ‘satisfied that exceptional circumstances exist that justify the grant of bail’.
The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances. In considering whether exceptional circumstances exist, I am required to take into account the surrounding circumstances as outlined in the non-exhaustive list of matters in s 3AAA of the Act.
If satisfied of the existence of exceptional circumstances, I am required to move to step 2 of the bail process, the unacceptable risk test. Section 4E(1) of the Act requires me to refuse bail if satisfied that there is an unacceptable risk that, if released on bail, the applicant would:
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.
The respondent bears the burden of proof in respect of the unacceptable risk test. In considering the test, again, I am required to take into account the surrounding circumstances pursuant to s 3AAA. I am also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.
Exceptional circumstances
The meaning of exceptional circumstances was considered by Champion J in Re CT.[2] Drawing on a number of decisions previously delivered by this Court, his Honour summarised the relevant principles as follows:
The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’. It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances ‘is a high one’. That having been said, it is not an impossible standard to reach.
It is widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant. Frequently, matters involving the nature of the Crown case involve issues concerning the strength or weakness of the case; undue delay in bringing the matter to trial; or, unusual features of the alleged offending, or the investigation, which might either solely, or in combination, make the circumstances exceptional.[3]
[2][2018] VSC 559.
[3]Ibid [64]–[65] (citations omitted).
Of relevance to the submissions made by the applicant in the present matter, this Court has previously held that while hardship imposed on an applicant’s family by virtue of their time spent on remand may not in itself rise to the threshold of an exceptional circumstance,[4] it may be of relevance when considered in combination with other circumstances.[5]
[4]Re Martinow [2019] VSC 118, [7] (Beale J); see also Re Reker [2019] VSC 81, [39] (Beale J) quoting DPP (Vic) v Muhaidat [2004] VSC 17, [13]-[14] (Kaye J); Re Sipser [2019] VSC 362, [43], [47] (Beach JA).
[5]Re O’Shea [2019] VSC 791, [74] (Incerti J, formerly Zammit J).
The applicant’s contentions
Mr Dickenson QC for the applicant relied upon the following matters in combination to demonstrate the existence of exceptional circumstances justifying the grant of bail:
i. The fact of the applicant and the complainant, who have been a family for many years, along with their three children, having now reconciled. On that score, the complainant and the children have been visiting the applicant in prison twice a week since his incarceration. It makes sense if at all possible for the family to be re-united at this time.
ii. The availability of what Mr Dickinson described as ‘stable accommodation’ with the complainant and their children.
iii. The availability of alternative accommodation for the applicant at the home of his mother and step father should it be considered inappropriate for the applicant to return to live with complainant.
iv. The availability of employment to the applicant should he be released on bail, which would enable him to re-commence mortgage repayments and assist in the overall financial position of the family. The family is presently under great financial pressure due to the incarceration of the applicant.
v. The relative weakness of the prosecution case in respect of both sets of charges. In respect of the breach of intervention order matters, there will be a real issue as to whether the applicant was aware of the order. In respect of the assault matter, the applicant was the one who contacted the police. There will be a challenge as to the correctness of the complainant’s version, and also as to whether any injury sustained would meet the requirements of ‘injury’ for the purposes of the Crimes Act 1958 in any event.
vi. The relatively minor nature of the offending in each case. Both incidents were no more than minor Magistrates’ Court matters.
vii. The time the applicant has already spent in custody, and will spend by the time of the resolution of the charges, should bail be refused. That period would be of the order of 7 months which is a significant period of time for offences of this nature.
viii. Related to the above, the likely sentence should the applicant be found guilty of all of the charges. There is no way that he would receive a term of imprisonment of anything like that. On that score, counsel referred the Court to the decision of Beach JA of Re Johnstone [No 2] (‘Re Johnstone’)[6] in which one of the matters relied on by the applicant in support of proof of a compelling reason justifying a grant of bail was the fact that it was very unlikely that upon conviction for the relatively modest offending with which he was charged, he would be sentenced to a term of imprisonment in excess of the time already spent on remand. Mr Dickenson relied in particular on what was said by Beach JA at [18] when he stated:
[6][2018] VSC 803 (‘Re Johnstone’).
The fact that an applicant for bail might have already spent more time in custody than they are likely to be sentenced to on conviction is a very relevant circumstance in determining whether bail should be granted. Generally, and all other things being equal, the fact that an applicant for bail has already spent more time in custody than would be required by any sentence that might ultimately be imposed for the relevant offending, is a compelling reason justifying a grant of bail.[7]
[7]Ibid [18].
ix. The fact that the criminal history of the applicant is not extensive.
x. The fact that, in spite of his less than perfect previous history of bail, the applicant now has good reason to realise the seriousness of the obligations of bail, being a ‘different person’ after this period of time in custody.
xi. The fact that there would only be a short period of time on bail, with no incentive for the applicant to flee in view of the limited nature of the charges.
xii. The favourable attitude of the complainant to the applicant being bailed.
Mr Dickenson then relied on all of the above matters in respect of the second step of the two-step process of bail. It was submitted that the Court can have considerable confidence that the applicant has learnt his lesson, and that the risk of non-compliance in the various ways asserted by the prosecution can be adequately controlled by the imposition of appropriate conditions. On that score, it is of note that the applicant and the respondent are now reconciled. The fact of the applicant having employment available to him is significant. As for the risk of him interfering with the complainant as a witness, that is speculative, in circumstances where he is in regular contact with her anyway.
In respect of the claim of an unacceptable risk of reoffending, which the respondent had sought to bolster by reliance on a number of supposed reports or complaints of the complainant which were either not proceeded with or never made out, Mr Dickenson submitted I should pay no regard to that material.
The respondent’s contentions
The respondent opposes bail on the grounds that the applicant has failed to demonstrate the existence of exceptional circumstances, and, further, that he poses an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail, interfering with a witness or otherwise obstructing the course of justice, and failing to surrender into custody in accordance with the conditions of bail.
The respondent noted that the alleged offending was committed in the context of family violence at a time when the applicant was subject to an active FVIO. The respondent submitted that there is a ‘significant history’ of family violence involving the applicant and complainant over a roughly 10 year period which has included instances of physical violence and threats to kill or injure the complainant (some of which have occurred in the presence of their children), use of weapons and multiple contraventions of FVIOs. The respondent challenged the applicant’s contention that the Court should disregard complaints or reports of family violence by the complainant which did not result in findings of guilt. It was submitted that this material was relevant and significant material to take into account, demonstrating that there has been a pattern of behaviour by the applicant over a significant period of time. There are reasons why affected family members may withdraw or not proceed with complaints previously made, and other reasons why matters may not proceed to prosecution. That does not mean the actual making of such complaints is not part of the material which may throw light on the risk of future endangerment of the affected family member, or the children who were apparently present on a number of occasions when allegations arose.
The respondent submitted that the applicant has been identified as a high-risk family violence offender by Victoria Police and notes concerns that the above history of family violence, coupled with the financial vulnerability of the complainant, heightens the risk of further family violence in their relationship. The respondent made this submission despite the recent reconciliation of the couple, noting that this is unlikely to mitigate the risk of further family violence.
The respondent expressed concerns that the applicant may attempt to pressure the complainant into withdrawing her present complaint, noting police concerns that his controlling behaviours have resulted in her refusing to provide statements in the past.
The respondent noted the applicant’s two prior convictions for committing an indictable offence whilst on bail and the further charge of this offence in the informant McKay matter. The respondent submitted that the applicant has demonstrated a disregard for court orders, including multiple contraventions of FVIOs and his 2017 conviction for contravention of a Community Correction Order.
The respondent noted the applicant’s negative bail history, including a previous conviction for failing to answer bail and his recent failure to appear in accordance with the conditions of bail on 23 September 2019.
Addressing the strength of the prosecution case, the respondent submitted that the complainant had made a detailed statement to the police, attending the police station on 6 December to report an incident which occurred the previous day. In the statement, she stated that what had occurred made her uneasy, distressed and worried. Ms Phelan submitted that the alleged breaches of the FVIO in the informant Sidorovska matter involved behaviour ‘beyond mere attendance’ at her property, and pointed out that admissions were made by the applicant during his police interview and that property was returned by him. The respondent also noted, in respect of the applicant’s claim of ignorance of the FVIO made on 29 October 2018, that the order was appropriately served by alternative means as authorised by a Court,[8] and that the applicant had been issued with a family violence safety notice on 27 October 2018 that contained the same conditions. This notice had been personally served. Ms Phelan submitted that the inference would be open that the applicant was aware of the making of the full intervention order.
[8]Family Violence Protection Act2008, s 202A.
In relation to the informant McKay matter, the respondent submitted that the complainant did suffer injury within the meaning of s 15 of the Crimes Act 1958 (Vic). The bruising was observed and noted by a medical practitioner and furthermore, the complainant was seen to be limping on the night by the police. The respondent noted in any event that the applicant is charged in the alternative with unlawful assault which carries a maximum penalty of three months, and further submits that aggravated assault pursuant to s 24 of the Summary Offences Act 1966 (Vic) would remain a sentencing option for the alleged offending. As for the apparent lack of enthusiasm of the complainant to cooperate, she would be a competent and compellable witness and the prosecution would be able to resort to s 65 of the Evidence Act 2008 should she be unavailable.
All-in-all, it was submitted that the case against the applicant on both matters was not weak at all.
Nor was the case lacking in seriousness. As noted earlier, the offending of the applicant in respect of the breaches of the intervention order was sufficient to leave the complainant feeling uneasy, distressed and worried. As for the McKay matter, it arose in a family violence setting in the context of earlier family violence by the applicant directed towards the same victim.
Ms Phelan accepted that the period of time the applicant would have been on remand by the time of the contest mention would be significant, but it should be remembered that the applicant has prior convictions for family violence, with the prior matter alone comprising a number of instances of family violence, and the overall material raised legitimate concerns that he may offend again.
On that score, the failure of the applicant in the past to undertake a men’s behavioural change program under the previous CCO was a significant concern.
In relation to the applicant’s contention that has been a ‘contributing member of the community’ throughout his adult life, the respondent asserted in the affidavit in response that the applicant ‘has been linked as a Bandidos OMCG associate’. This matter was not the subject of any submissions by either side during the application before me, and in the circumstances, I do not rely upon it. The respondent also noted that the applicant’s employment history includes a period of time managing the ‘Moba Lounge’ in Melton, during which he was charged with supplying liquor outside the conditions of his licence and where a failure to pay rent led to the property being repossessed. This was, to my mind, a matter of little significance.
With respect to the availability of alternative accommodation with the applicant’s mother and stepfather, the respondent highlighted concerns that they were each unaware of the details concerning his alleged offending and criminal history, and have no understanding of the conditions of the FVIO. On this basis, the respondent submitted that the applicant’s mother and stepfather are not in a position to adequately supervise the applicant on bail.
Insofar as it had been asserted on his behalf that the applicant was the sole breadwinner to the family, it should be noted that prior to the offending in October 2019, the applicant had in fact been unemployed for a period of time and had not been making mortgage repayments.
As for the claim that the applicant had now learnt a lesson about the importance of abiding by bail which was previously unknown to him, his previous experience in connection with the July 2015 matters when he received 72 days’ imprisonment as well as a CCO would dictate that he must surely have understood his obligation to comply with the conditions of bail well before now.
As to the unacceptable risk considerations, Ms Phelan conceded that the risk of failing to attend in answer to bail was of less importance than the other concerns.
She submitted, further, that were the applicant to be granted bail now, he would be placed in the same position in which he found himself at the time of the alleged offending, aside from the issue of the reconciliation between him and the complainant. The reconciliation was no guarantee of good future conduct, and had only occurred in the controlled environment of a prison.
As to the favourable attitude of the complainant to bail, whilst that was important, the reconciliation upon which that attitude was founded did nothing to mitigate the risks of future bad conduct by the applicant. Also, there was the risk of the children of the couple being exposed to family violence through the medium of violence towards the complainant.
Analysis
I have considered all of the matters advanced by Mr Dickenson in support of the contention that exceptional circumstances have been established, in light of the non-conclusive list of matters set out in s 3AAA of the Act. I will deal with the matters in the order in which I have set them out in the above summary of the applicant’s submissions before me, which is not to say that that order is necessarily indicative of the importance of each of the matters.
The desirability of the family group being reunited is of course a significant matter, but it must be remembered that the alleged offending occurred in the context of the applicant living under the same roof as the complainant. If Mr Dickenson is right in his assessment of the likely sentence should the applicant be found guilty, and assuming the reconciliation becomes a long-standing one, then come what may, the family unit will be reunited inside two months from now. Therefore, the decision of the Court on bail is not going to be a matter which will interfere long-term with the prospects of the family being together.
In respect of the availability of so-called stable accommodation, it cannot be forgotten that such accommodation, if what is referred to is the house in which the applicant would live with his partner and children, would only be as stable as the relationship itself, which, over many years, has been far-from stable by all accounts. The respondent argued that I am being asked to release the applicant into exactly the same situation in which it is alleged the offending all arose, save for the matter of the reconciliation. That seems to be the case. Therefore, the fact of the applicant living in such accommodation does nothing to mitigate the risk of reoffending.
In respect of the emphasis placed on employment, and the proposition that it would enable the applicant to contribute financially to the union, he was unemployed for some time prior to going into custody, and the financial tribulations of the family were an issue before that occurred. Two months of part-time employment leading up to the date of the contested hearing may be seen to be relatively insignificant in the scheme of things.
In respect of the submissions attacking the strength of the prosecution case on the two sets of charges, I do not consider the case to be weak in respect of either group of charges. The strength of the evidence in the contested hearing will be a matter for assessment by the tribunal of fact, and I do not seek to analyse that in detail now. Suffice to say that all of the asserted deficiencies in the case may be capable of being overcome.
Insofar as the relatively minor nature of the offending is relied upon, the multiple breaches of the intervention order, if made out, were indicative of a deliberate disregard and lack of respect for an order of a court imposed to protect his partner and children from him. Certainly at the time she complained to the police, she indicated that she had been significantly concerned and affected by his unwanted attention. He had a prior conviction in 2015 for persistent contravention of a FVIO for which he had received a term of imprisonment and a CCO, which CCO he subsequently breached. One of the charges currently in issue is, again, a charge of persistent contravention of a FVIO, an indictable offence with a maximum penalty of 5 years’ imprisonment. This is no minor offence.
As for the informant McKay offending, it is alleged that the applicant assaulted his partner by striking her to the leg with an implement, causing some injury to her, and also struck her to the head. This happened in contravention of a FVIO which was in place. It happened in close proximity to the children. The applicant has two prior convictions for assault. Whilst the present allegations are not of the most serious assault, to strike a female with a cricket bat and hit her to the head cannot be described as trivial offending by any means.
In respect of the period of time the applicant has already spent and will spend in custody should bail not be granted, and its relationship with the likely sentence should he be found guilty, there is no question that the time in custody currently and prospectively is significant. Furthermore, it may well be that that period will exceed the sentence he might ultimately receive. That remains to be seen. However, the position on that score is by no means as clear cut as it was in the case of Re Johnstone.
Furthermore, even if the submission of Mr Dickenson in this regard was correct, it would not be determinative of the issue. Beach JA in Re Johnstone stated:
That is not to say that the likelihood of any sentence being less than time already spent in custody is determinative in favour of an applicant for bail who is required to satisfy the compelling reason test. The issue is an important one in the synthesis. However, it cannot determine the question. First, that is not what the Act says. Secondly, to allow the issue to be determinative would admit of the possibility of a particular applicant ignoring bail conditions on the assumption that bail would not be revoked because of the existence of an earlier (and perhaps lengthy) period of time in custody.[9]
[9]Re Johnstone (n 6) [19].
Turning to the criminal history of the applicant, it may not be lengthy, but it is highly significant. It shows the applicant to be a person who has in the past acted with violence towards a female partner, to such an extent that he was imprisoned for it. He has previously persistently breached an FVIO, again, resulting in imprisonment. He has threatened to kill a female partner. He has failed to answer bail. He has committed an indictable offence whilst on bail. And he has failed to abide by the terms of a CCO, apparently by failing to take part in a men’s behavioural change course which he was required to do under the CCO, a somewhat telling failure in respect of which no explanation was provided to the Court.
The material relied upon by the respondent contained reference to a number of alleged incidents of family violence towards the current complainant which did not result in findings of guilt for various reasons, including withdrawal of complaints by the complainant and her unavailability when court dates arrived. The respondent submitted that I should take this material into account as reflecting on the true nature of the relationship, and demonstrating that there has been a pattern of behaviour by the applicant towards the complainant over a significant period of time. As mentioned earlier, the applicant submitted I should not have regard to this material.
I consider that in a bail application where the central thing at issue is allegations of violence and other conduct by the applicant committed in a family violence context, I am entitled to have regard to the many occasions in the past on which the complainant has seen fit to contact the police and make allegations against the applicant of violence and the like. The fact that allegations did not reach the point of being made out in court does not mean that they cease to be relevant. This is part of the material which may throw light on the risk of future endangerment of the complainant and her children.
Insofar as it was submitted before me that the applicant has now learned a lesson about the importance of bail, and complying with orders of courts, which he had not previously learnt, he was 33 years of age at the time of the 2015 sentence, the CCO component of which he breached. He was a 37 year old man at the time of the first alleged breach of the intervention order. It is inconceivable that he was not fully aware at that time of the fate which might befall him should he fail to abide by that order. As for his alleged conduct in the second group of charges, it is, again, inconceivable that he could have failed to appreciate at that time how important compliance with the bail upon which he had been released, and the intervention order which was in place, actually was. And yet, it is alleged he offended in spite of the existence of those orders.
As for the duration of any grant of bail, it would, as submitted by Mr Dickenson, be only a short period with little incentive for the applicant to flee in view of the nature of the charges. The other side of that coin is the fact that a refusal of bail at this time would only have the effect of the applicant spending a relatively short further period on remand before resolution of the matter. That is not to say that every day in custody is not itself important.
Finally, of the matters relied upon by the applicant, the attitude of the complainant is of course, important. I take it into account.
There is a significant history of alleged family violence inflicted by the applicant upon the complainant. He has been convicted of serious family violence in the recent past against another partner, for which he was imprisoned. The indications are that he has not been deterred by the strong punishment he received in the past. The indications, also, are that he has shown a lack of regard for court-imposed sanctions, and a lack of regard for the importance of bail. The offending here allegedly occurred in the above context. Whilst not the most serious offending of its type, it is serious none the less, reflected by the fact that no submission was made to the Court suggesting that it may not result in imprisonment if proved. It is reasonable to consider that any term of imprisonment imposed may not equate to the time the applicant will end up spending on remand. That is not a foregone conclusion, however. It remains to be seen whether it turns out to be the case. Furthermore, this is only one of the considerations to which I am required by law to have regard.
Having regard to all of the matters relied upon in support of a grant of bail in this case, and bearing in mind the stringency of the first step of the test for bail, I am not satisfied that the applicant has discharged the onus resting on him to prove the existence of exceptional circumstances that justify his release upon bail.
For completeness, I can indicate that even had I been satisfied that the first step had been made out by the applicant, I would have been satisfied, in considering the second step in the bail process, that there would be an unacceptable risk of the applicant reoffending or endangering the safety or welfare of another person, committing an offence while on bail, or interfering with a witness in the prosecution he will shortly face.
Conclusion
For the reasons stated above, this application for bail must be refused.
0
5
0