Re Blencowe
[2017] VSC 273
•18 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0069
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Stanley BLENCOWE
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2017 |
DATE OF RULING: | 18 May 2017 |
CASE MAY BE CITED AS: | Re Blencowe |
MEDIUM NEUTRAL CITATION: | [2017] VSC 273 |
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CRIMINAL LAW – Application for bail – Refusal to accompany police to station for breath test – Unlicensed driving – Prima facie right to bail – Whether unacceptable risk – Extended criminal history – Serious health conditions – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | R. J. De Vietri | Victoria Legal Aid |
| For the Respondent | D. Porceddu | Office of Public Prosecutions |
HIS HONOUR:
On 15 August 2016 the applicant was intercepted driving a motor vehicle on Eaglehawk Road, Eaglehawk. He was an unlicensed driver at the time and when lawfully requested he refused to accompany a police officer to the Bendigo police station to provide a sample of his breath for analysis. He was charged on summons with both offences.
On 1 May 2017, about eight and a half months later, the applicant pleaded guilty at the Bendigo Magistrates' Court to those offences. Magistrate Malhotra convicted the applicant and sentenced him to six months’ imprisonment. The applicant was disqualified from driving for ten years.
The applicant applied for appeal bail pursuant to s 265 of the Criminal Procedure Act 2009. This section specifically provides that in considering the question of appeal bail by the court must have regard to the provisions of the Bail Act 1977.
It is common ground that the applicant, then and now, is prima facie entitled to bail. The opposition to bail was and is on the basis that the applicant is an unacceptable risk of committing an offence whilst on bail and of endangering the welfare of the public. In reality, those risks are the same risk. The offence alleged to underpin the unacceptable risk ground is some form of drink driving. If the applicant does drink drive, the argument is made by the prosecution that in so doing he would endanger the welfare of the public.
One does not have to look further than the applicant’s prior convictions to understand the prosecution position. By my calculation, the applicant has ten prior convictions for drink drive related offending, three in New South Wales, seven in Victoria. His most recent prior offending in Victoria between 2006 and 2010 revealed blood alcohol readings of .186, .173, .199 and .152.
All that can be really be said about this atrocious record is that he has not been detected offending between 2010 and August 2016. When he was detected in August 2016, the preliminary breath testing device apparently revealed the presence of alcohol on the breath of the applicant. The reason the applicant offered for refusing to accompany Senior Constable Deeson for a further test was, and I quote, ‘I couldn’t give a fuck’. Against this background the magistrate’s unusual step of refusing appeal bail can perhaps be understood.
A medical report was tendered on the plea from Dr Chris Daw, it is dated 28 April 2007, and is also relied upon in the current application. It reads:
Re‑Mr Stanley Blencowe, 11/9/64, Meggs Court. This patient was admitted to the Bendigo Hospital in January this year with liver and kidney failure, bought on by liver failure due to alcoholic cirrhosis and an unintentional paracetamol overdose. After a prolonged time in intensive care it was felt that no further reasonable treatment and reasonable chance of recovery could be given and so he was sent home under palliative care with the expectation that he would die at home in the not too distant future. At this time I became involved as his GP and astoundingly he made a spontaneous recovery and he is now under the care of specialist clinics at the Bendigo Hospitals, although he still has serious ongoing problems with his liver. In my opinion, if this patient drinks alcohol again it would most likely cause very serious health problems and even death and in my opinion, I believe the patient understands this and will abstain from all alcohol in the future, but he still has serious ongoing health issues regarding liver, heart, and in my opinion, some cognitive impairment due to alcohol and his recent serious hospital stay. He will require ongoing specialist medical treatment from the Bendigo Hospital for the foreseeable future.
I am told that the next criminal sittings of the County Court in Bendigo will take place on 22 May. There is some prospect, but no certainty, that the applicant’s appeal will be heard in the month thereafter. In the four week May circuit there are eight weeks of criminal trials listed, 19 pleas listed (seven custody pleas) and 26 sentence appeals (nine custody appeals).
Mr Porceddu for the Crown contended that the extraordinary criminal history of the applicant demanded the conclusion that the applicant was an unacceptable risk of drink driving for an 11th time. In an attractive submission he analysed the applicant's prior history and demonstrated that many of the applicant's prior drink driving convictions were committed within months of his last court appearance for a similar offence.
Mr De Vietri in equally attractive submissions contended that this prior history needed to be understood in the context of current events. The applicant’s health is parlous, the current offence was committed in August 2016, the last prior conviction for drink driving before that was in 2010. The applicant has not offended again in the eight months or so since August 2016 and so any pattern of offending that the prosecution can point to seems to have slowed considerably. Additionally, Mr De Vietri argued that the circuit list at Bendigo is brimming to overflow and there’s no guarantee that the applicant’s case will be heard. The next circuit after the May circuit is listed to commence on 10 July, and that is only a three week circuit.
I am obliged to consider the nature and seriousness of the offending. I expressed in argument that I regard drink driving offences, such as is alleged, as serious offences, made all the more so by the applicant’s outrageously bad driving record. If that were where the matter ended I would accept the prosecution submission that the applicant is an unacceptable risk of committing a drink driving offence and thus endangering the welfare of the public. The factor that has largely influenced me to accede to this application is the applicant’s health. He has advanced alcoholic cirrhosis of the liver. He was sent home from hospital in Bendigo to die under palliative care some months ago. Astonishingly, and against the strong expectation of his treating medical practitioners he has spontaneously recovered to some degree.
It is Dr Daw’s opinion that if this man drinks again he will likely compromise his health dramatically and could die. I accept Dr Daw's opinion that he believes the applicant understands this and is trying to manage his ongoing liver and heart diseases.
Given the applicant’s precarious health, which may be better managed in the community, I consider there is sufficient incentive for the applicant to remain abstinent over the period between now and the prosecution of his appeal. Accepting on balance that this is the case then I believe the risk of reoffending is ameliorated to an acceptable level.
Although not relevant to the question of risk, I also take into account the factor that if the applicant remained in custody and his appeal were not heard in the May circuit (and there is a real prospect of this) that he may well have served a significant portion of his sentence before his appeal is heard. In that circumstance, his appeal would be rendered, if not otiose, certainly substantially compromised. In the circumstances, I propose to grant bail.
I order that Stanley Blencowe be admitted to bail on his own undertaking and on the following conditions:
1.That the said Stanley Blencowe attend the County Court Bendigo on a day and time notified to him by the Director of Public Prosecutions by notice in writing and then surrender himself.
2.The said Stanley Blencowe reside at 4 Meggs Court Eaglehawk, Bendigo.
3.The said Stanley Blencowe not drive a motor vehicle.
4.The said Stanley Blencowe not consume any alcohol.
5.The said Stanley Blencowe allow police to enter and search his residence to ensure that there is no alcohol on the premises.
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