Re Brook
[2022] VSC 566
•21 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0229
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by NICHOLAS BROOK |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2022 |
DATE OF JUDGMENT: | 21 September 2022 |
CASE MAY BE CITED AS: | Re Brook |
MEDIUM NEUTRAL CITATION: | [2022] VSC 566 |
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CRIMINAL LAW – Bail – Applicant charged with Schedule 2 offence – Whether compelling reason justifying grant of bail – Whether unacceptable risk of committing an offence while on bail or obstructing course of justice – Bail refused – Bail Act 1977 s 3AAA, s 4, s 4AA, s 4C, s 4E, s 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Farrington | Marcevski Lawyers |
| For the Respondent | Ms D Pastoors | Victoria Police |
| For the Chief Commissioner of Victoria Police | Mr C Dawlings | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
Nicholas Brook, the applicant, has been charged with more than one Schedule 2 offence as prescribed by the Bail Act 1977 (‘the Act’). Having been refused bail by a magistrate, he now seeks bail from this court. Given that he is charged with a Schedule 2 offence, the Act requires the court to refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[1]
[1]See ss 4AA(3) and 4C(1A) of the Act.
In opposing bail, the respondent contends that the applicant has not established a compelling reason that justifies the grant of bail. The respondent also contends that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of a person; commit an offence on bail; or fail to surrender into custody in accordance with the conditions of bail.
In my opinion, bail should be refused. My reasons follow.
The charges and the orders relating to bail
The applicant was arrested on 7 July 2022. Following interview, Detective Senior Constable Michael Maclachlan charged him with 11 charges. A magistrate refused bail on those charges later that day.
Six of the charges laid by Detective Maclachlan relate to conduct on the day of arrest. They are:
· being a prohibited person in possession of firearm[2] (charges 1 and 2);
[2]Firearms Act 1996, s 5(1).
· negligently dealing with the proceeds of crime[3] (charge 3);
[3]Crimes Act 1958, s 194(4).
· possessing a trafficable quantity of unregistered firearms[4] (charge 4);
· possessing a prohibited weapon without an exemption or approval[5] (charge 5); and
· possessing a controlled weapon without excuse[6] (charge 6).
[4]Firearms Act 1996, s 7C(1).
[5]Control of Weapons Act 1990, s 5AA.
[6]Control of Weapons Act 1990, s 6(1).
Four charges relate to alleged conduct on 1 October 2016 (charges 7 to 10 inclusive), and one charge relates to alleged conduct on 2 June 2022 (charge 11), as follows:
· reckless conduct endangering life[7] (charge 7); and
[7]Crimes Act 1958, s 22.
· reckless conduct endangering serious injury[8] (charge 8); and
[8]Crimes Act 1958, s 23.
· using a firearm in a public place[9] (charge 9);
· being a non-prohibited person in possession of a general category handgun[10] (charge 10); and
· negligently dealing with the proceeds of crime[11] (charge 11).
[9]Firearms Act 1996, s 130(1B)(a).
[10]Firearms Act 1996, s 7(1).
[11]Crimes Act 1958, s 194(4).
Subsequently, on 28 July 2022, Detective Maclachlan charged the applicant with a further three charges, relating to alleged conduct between 9 June and 20 July 2022:
· negligently dealing with the proceeds of crime[12] (charge 12);
· possessing ammunition without a licence[13] (charge 13); and
· possessing an article of disguise with unlawful intent[14] (charge 14).
[12]Crimes Act 1958, s 194(4).
[13]Firearms Act 1996, s 124(1).
[14]Summary Offences Act 1966, s 49C(b).
The alleged offending
On 4 February 2022, a final family violence intervention order under the Family Violence Protection Act 2008 was made against the applicant. The affected family members were the applicant’s wife, Michelle Ferbrache, and their daughter, Vivienne Brook. By dint of s 3(1) of the Firearms Act 1996, the applicant became a prohibited person for the purposes of that Act once that final order was made. (The applicant is also subject to an interim family violence intervention order made on 18 October 2021, naming his step-sons, aged nine and ten, as protected persons.)
Two days earlier, on 2 February 2022, Australian Border Force (‘ABF’) officers had detected a folding stock for an assault rifle in a package addressed to the applicant.
During a subsequent search of the applicant’s premises by ABF officers on 2 June 2022, a quantity of ammunition was seized which was later given to Victoria Police. The ammunition included: 12 gauge shotgun shells (46 in total); nine millimetre bullets (25); 22 millimetre bullets (four); 30 calibre carbine bullets (11); and assorted ammunition (four bags). ABF officers also found a ballistic vest with plates; six firearm magazines; capsicum spray; a taser; a knuckle duster; marijuana seeds; and prescription medication.
Later, on 4 July 2022, an ABF officer provided information to Detective Maclachlan, as a result of which Detective Maclachlan allegedly formed a reasonable suspicion that there were firearms at the applicant’s premises.
Two days afterwards, on 6 July 2022, an ABF officer provided Detective Maclachlan with a video located on the applicant’s mobile telephone after its seizure on 2 June 2022. The video depicts the applicant discharging a submachine gun nine times in a public place. Metadata obtained from the video shows its creation time to be 2.16 pm on 1 October 2016, and the location to be 300 Arundel Road, Keilor, Victoria. The submachine fired by the applicant bears a likeness to a ‘Skorpion’ sub-machine gun which is designed to fire nine millimetre ammunition. The direction in which the applicant discharged the firearm is towards Arundel Farm Estate, 321 Arundel Road, Keilor, being a winery approximately 600 metres from where the applicant is standing.
At 6.00 am the next day, Thursday, 7 July 2022, Detectives went to the applicant’s residential premises. Detective Maclachlan arrested and cautioned the applicant. He informed the applicant that police had reason to believe there were firearms at the premises, and a search was to be conducted under s 159 of the Family Violence Protection Act 2008. Detective Maclachlan asked the applicant if there were any firearms he wished to declare. The applicant replied, ‘No, Border Force got them all’.
The applicant’s property was searched, and police located a samurai sword underneath a mattress in the main bedroom and a long arm rifle stock inside a gun safe in the lower room of the house. Detective Maclachlan located a rifle case partially buried and covered with tree branches in a garden shed at the rear of the property. Inside the case were dismantled firearms in individual sealed plastic bags. When two of the sealed plastic bags were opened by officers of the Ballistics Section of the Victoria Police Forensic Services Department (‘VPFSD’), they were found to contain a 30 calibre M1 Carbine centrefire semi or full automatic rifle (‘M1’) — which was listed on the Victoria Police Licensing and Regulation System on 6 January 1999 as ‘whereabouts unknown’ — and a 30 calibre Chinese SKS centre fire semi or full automatic rifle with a bayonet attached (‘SKS’).
When interviewed, the applicant made no admissions. He told police that the person in the video from Keilor was not him, and that the samurai sword looked like a kitchen knife. As to the ammunition and firearms, he made no comment. He was then charged with charges 1 to 11 referred to above.[15]
[15]At [5]–[6].
At 11.40 am on Wednesday, 20 July 2022, Detective Maclachlan and another officer once more went to the applicant’s residential premises after receiving information from the Corrections Victoria Intelligence Unit relating to a telephone call made by the applicant from Margoneet Correctional Centre on 19 July 2022 to his wife Michelle Ferbrache. During the call, the applicant allegedly instructed Ferbrache to go to the ‘tile safe’ buried underneath the house and remove a balaclava, cash and ammunition. Upon police arrival at the address, Ferbrache stated she had already removed the items from the safe. She then surrendered a handgun case containing 15 shotgun cartridges, and a drawstring pouch containing a black balaclava. The applicant was subsequently charged with charges 12 to 14 referred to above.[16]
[16]At [7].
On 29 August 2022, Detective Maclachlan received examination summaries from VPFSC indicating that no fingerprints were found on the M1 or SKS, but that DNA had been located. Due to a backlog of cases, however, no statement relating to DNA analysis will be available until 12 December 2022.
The applicant has been in custody since his arrest on 7 July 2022. On 23 July 2022, he was being treated in a prisoner ward at St Vincent’s Hospital, when, at about 1.30 pm, he moved his bed under a ceiling vent in his room, removed the vent and climbed into the roof cavity and crawled approximately 20 metres. He remained there for 40 minutes until finally complying with a request by Corrections officers to remove himself, damaging the ceiling in the process. The applicant was subsequently charged by Senior Constable Thomas Read with prison escape, attempted prison escape and criminal damage.
It must also be noted that the applicant is on summons in relation to a family violence incident involving his step-sons on 19 September 2021. On 28 May 2022, Constable Jess Kotevski filed charges for several offences, including contravention of a family violence intervention order intending to cause harm or fear, and assault. It is alleged that the applicant grabbed both boys by their heads, shaking them and pulling their hair. It is also alleged that the applicant weighed one of the boys down with a knee in his chest until Ferbrache intervened.
I note also that, on 12 April 2021, a charge of persistent contravention of a family violence intervention order was found proven against the applicant. He was placed on an adjourned undertaking. Due to his compliance with the undertaking, the charge was dismissed on 12 April 2022.
Evidence and submissions advanced in support of bail
The applicant relied on an affidavit sworn by his solicitor, Nick Marcevski, on 8 September 2022.
In brief summary, Mr Marcevski deposed to the following:
· the applicant, aged 35,[17] has strong ties to the community, does not have dual citizenship and has no current passport;
[17]His date of birth is 12 January 1987.
· a surety of $100,000 is available;[18]
[18]Mr Marcevski deposed that a surety of $100,000 was available. In an affidavit affirmed on 6 September 2022, however, the putative surety, Michelle Ferbrache, deposed that, although she had hoped to be able to offer $100,000, she was presently able to offer only $50,000.
· the applicant was not on bail at the time of the alleged offending, and has no history of failing to appear on bail, contravening bail conditions or committing an offence on bail;
· he has never been in custody before, has a limited (and relatively minor) criminal history, and complied with a 12 month adjourned undertaking imposed on 12 April 2021 (imposed, as I have mentioned, following a finding of guilt on a charge of persistently breaching a family violence protection order);
· with respect to the alleged offences on 7 July 2022, there are ‘triable issues’ concerning the search of the applicant’s premises on 7 July 2022; and with respect to the alleged offending on 1 October 2016, there ‘is no evidence that there was any other person around that may [have been] harmed’;
· as a result of delay — including delay caused by the fact that the firearms seized on 22 July 2022 are yet to be ‘forensically examined’ — the applicant’s time on remand ‘will ultimately exceed any sentence that he may receive for this alleged offending’;
· the applicant’s parents are supportive, and, if he is granted bail, it is intended that he will reside with them;
· the applicant’s partner has endured hardship caring for their daughter since the applicant has been in custody, and, if he is granted bail, it is intended that the applicant will care for their daughter so that his partner can resume full-time employment;
· the applicant’s custody is onerous due to conditions related to the COVID-19 pandemic (including lockdowns, restrictions on personal visits and on the availability of educational courses); and
· strict bail conditions could ameliorate the risks urged by the respondent.
Michelle Ferbrache, the applicant’s wife, who had affirmed an affidavit on 6 September 2022, gave oral evidence before me, confirming the contents of her affidavit (including as to the availability of a surety of $50,000). She undertook to advise police if the applicant breached his bail conditions. Ms Ferbrache also gave evidence about the circumstances surrounding the relevant family violence intervention orders which it is unnecessary to summarise. I have had regard to her evidence.
The applicant’s counsel submitted that the following amounted to a compelling reason justifying bail:
· the applicant has no negative bail history which would militate against the granting of bail;
· the applicant has a ‘nominal’ criminal history;
· the applicant has strong ties to the jurisdiction, with his parents, partner and children all residing within the jurisdiction;
· the applicant is the primary care-giver for his daughter, whilst his wife, Ms Ferbrache, works full time, so that, since the applicant has been remanded, Ms Ferbrache has been required to juggle child care with fulltime employment;
· Michelle Ferbrache will provide a surety of $50,000;
· it is proposed that the applicant will reside with his parents in stable accommodation;
· there are ‘obvious’ triable issues in relation to the charges of reckless conduct which will likely see the matter proceed to contested hearing, and there is a question that has been raised by the applicant in relation to the lawfulness of the search of the applicant’s premises, which has now attracted public interest immunity claims;
· there will be a 12 month delay between charges and contested hearing; and
· conditions in custody are onerous due to restrictions resulting from the COVID-19 pandemic.
With respect to the issue of unacceptable risk, counsel submitted that ‘there are sufficient conditions available which would reduce the risk to an acceptable level’. Apart from a surety of $50,000, those conditions could include that the applicant: reside with his parents; surrender any passport, not visit any point of international departure, or leave Victoria or Australia; report to police; comply with a curfew (and present himself at the front door of his residence during curfew hours); and possess only one mobile device, which must be available for inspection by police upon request.
The respondent opposed bail
The respondent, as I have mentioned, opposed bail.
In an affidavit sworn 16 September 2022, Nathan Watt, a solicitor employed by Victoria Police, in summary sets out the grounds of opposition as follows:
· the applicant has not discharged the burden of satisfying the court of the existence of a compelling reason justifying the grant of bail;
· the respondent has concerns about the risk of family violence;
· the applicant is currently subject of an active investigation being conducted by the ABF, and charges are imminent;
· there is an unacceptable risk of the applicant:
o endangering the safety or welfare of a person, given that he: had possession of a trafficable quantity of unregistered firearms whilst a prohibited person and subject of two active intervention orders; discharged a firearm on a public road nearby a winery and paddocks where persons could have been present; has possessed firearms during two different periods, further demonstrating his ability to procure them illegally; and has assaulted his step-sons.
o committing an offence while on bail, given that he called his wife whilst in custody and asked her to remove items from a hidden safe; and
o failing to surrender into custody in accordance with the conditions of bail, given that he attempted to escape custody whilst being held on remand regarding these matters.
The respondent also relied on s 5AAAA of the Act which requires the court, in the case of a person charged with a family violence offence, to consider ‘whether, if the accused were released on bail, there would be a risk that the accused would commit family violence’, and to consider means of mitigating any such risk.
Mr Watt swore a second affidavit on 20 September 2022, in which he deposed that:
· inquiries with the Magistrates’ Court revealed that the date for a summary contested hearing of the charges laid by Detective Maclachlan would likely be January 2023; and
· ABF had recommended to the Commonwealth Director of Public Prosecutions that charges be laid, but no decision had yet been made.
Detective Senior Constable Michael Maclachlan gave viva voce evidence, the most salient aspect of which related to advice that he had received from the Ballistics Unit of the VPFSD. That advice, which was based on viewing the video of the applicant firing the Skorpion machine pistol, suggested that the distance travelled by fragments from a projectile fired from the gun ricocheting off asphalt ‘would unlikely be further than a hundred metres or so’. By that distance, so the advice went, ‘the bullet may have lost enough energy and velocity to be no longer lethal, but would probably sting!’.
The statutory regime
Section 4 of the Act makes plain that the applicant is entitled to bail unless the court is required by the Act to refuse it.
Charges 7 and 8 — reckless conduct endangering life and reckless conduct endangering serious injury — are both a Schedule 2 offence for the purposes of the Act, since they are indictable offences in the course of committing which the applicant allegedly used a firearm.[19] Moreover, the two charges of being a prohibited person in possession of a firearm; three charges of negligently dealing with the proceeds of crime; and one charge of possessing a trafficable quantity of firearms; are also Schedule 2 offences because they were allegedly committed when the applicant was subject to a summons to answer a charge for another indictable offence.[20] Hence, the Act requires this court to refuse the applicant bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[21] The applicant bears the burden of satisfying the court as to the existence of a compelling reason.[22]
[19]See Schedule 2, cl 23.
[20]See Schedule 2, cl 1(b).
[21]See ss 4AA(3) and 4C(1A) of the Act.
[22]See s 4C(2) of the Act.
In considering whether a compelling reason exists, the court is required to take into account the surrounding circumstances.[23] Section 3AAA(1) of the Act sets out surrounding circumstances, so that (so far as relevant) the court
[23]See s 4C(3) of the Act.
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force—
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
…
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
...
In determining whether compelling reasons exist which justify the grant of bail, the surrounding circumstances which the court must consider include the nature and seriousness of the alleged offending (including whether it is a serious example of the offence), and the strength of the prosecution case. There must be a forceful and convincing reason — one difficult to resist — for concluding that the applicant’s continued detention in custody is not justified.[24]
[24]Re Alsulayhim [2018] VSC 570, [27]–[28] (Beach JA); Re Ceylan [2018] VSC 361, [47] (Beach JA); Rodgers v The Queen [2019] VSCA 214, [44] (Beach, Kaye and Ashley JJA).
When interpreting the Act, the court is required by s 1B to take into account (among other things) that:
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; …
If the applicant is able to clear the hurdle presented by the ‘compelling reason test’, the court must next consider the ‘unacceptable risk test’ in s 4E(1), which requires the court to refuse bail if the prosecutor satisfies the court[25] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(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.
[25]Subsection 4E(2).
When considering whether any relevant risk is unacceptable, s 4E(3) of the Act once more requires the court to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Analysis
To deprive a person of his or her liberty is a serious matter. The Act recognises as much. But whilst the court must construe its provisions taking into account ‘the presumption of innocence and the right to liberty’, the court must also take into account the importance of ‘maximising the safety of the community and persons affected by crime to the greatest extent possible’.
As I have said, the ‘compelling reason test’ requires the court in the circumstances of this case to refuse bail unless persuaded that there is a forceful and convincing reason — one that is difficult to resist — for concluding that the applicant’s continued detention in custody is not justified. In my view, however, none of the matters relied upon by the applicant — alone or in combination — amount to a forceful and convincing reason for concluding that the applicant’s continued detention in custody is not justified.
Although I do not ignore the other factors, and do not look at the various factors relied upon by the applicant in isolation, the factor which gives me most pause is the possible delay in resolution of the charges. There was a deal of anecdotal information advanced concerning delay — no doubt conscientiously — from the Bar table. Given that the available evidence suggests, however, that the charges are capable of being heard next January, I do not consider the delay to be of such an order — paying due regard to the conditions of custody flowing from the pandemic — that it provides a compelling reason justifying the grant of bail. I note in that regard that there is to be a contest mention in a month’s time, on 22 October 2022. No doubt, if, after mention, the aspirational date of January 2023 proves to be unrealistic, that would be a new fact or circumstance enlivening a renewed application for bail.
Furthermore, I consider the contention that there are ‘triable issues’ with respect to the lawfulness of the search of the applicant’s premises to be somewhat overstated. On the evidence available, I have difficulty in seeing that the search of 7 July 2022 was attended by illegality. Indeed, it is fair to say that the issue largely seemed to fall away during discussion on the application.
I also have difficulty in seeing that, notwithstanding that no persons were visible in the video, it could realistically be contended that the applicant’s conduct in firing the weapon on 1 October 2016 on a public road in the vicinity of a winery may not have placed another person in danger of serious injury. As to that, I do not ignore the advice received by Detective Maclachlan from the Ballistics Unit of the VPFSD. Notwithstanding that advice, I regard the circumstances of the alleged offending on charges 7 and 8 as being serious. It is disturbing that an individual would see fit to discharge a machine pistol on a public road, no matter that no members of the public may readily be observed. The mere firing of the kind of firearm alleged in the prevailing circumstances arguably engenders the risk that someone might (at the least) be seriously injured.
But even were I persuaded that a compelling reason had been established, I would still refuse bail on the basis that the applicant represents the unacceptable risks contended for by the respondent, such risks not being capable of acceptable amelioration by any conditions the court might impose.
Thus, the evidence suggests that the applicant has in the past had access to multiple dangerous firearms, and was prepared to discharge one of those dangerous automatic or semi-automatic weapons on a public road. In light of that fact, I consider there to be a palpable risk that, if granted bail, the applicant would source and use illegal firearms.
Moreover, I consider that there is a real risk that, if released on bail, the applicant would obstruct the course of justice. As to that, I have no reason to doubt the evidence that the applicant telephoned Ms Ferbrache from custody with a view to concealing or destroying evidence, and thereby perverting the course of justice. His attempt to pervert the course of justice was detected due to conditions of custody that could not be replicated if he were in the community. I have no confidence that he would not attempt similar conduct if released.
Further, the evidence suggests that the applicant previously made an attempt to escape lawful custody. Albeit that the attempt may have been somewhat naïve, I consider that it demonstrates that there is a real risk that the applicant will fail to abide by the conditions of bail and surrender himself into custody in accordance with those conditions.
Finally, I note that none of the charges for which the applicant seeks bail are family violence offences. But were I to assume that s 5AAAA(2) of the Act applied,[26] I would not consider there to be a risk that the applicant would commit family violence of such a magnitude that bail should be refused or special conditions imposed.
[26]And see s 3AAA(1)(f).
Conclusion
The application for bail is refused. ----
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