Re Brown
[2020] VSC 870
•21 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0335
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by DAVID BROWN |
---
JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2020 |
DATE OF JUDGMENT: | 21 December 2020 |
CASE MAY BE CITED AS: | Re Brown |
MEDIUM NEUTRAL CITATION: | [2020] VSC 870 |
---
CRIMINAL LAW – Bail – Aggravated burglary, making threat to kill, stalking, trespass, criminal damage, aggravated assault, use of a carriage service to menace, harass and offend, and theft – Requirement to show compelling reason justifying grant of bail – Whether compelling reason exists justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Compelling reason not established – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4AA, 4C, 4D and 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J McGarvie | Victoria Legal Aid |
| For the Respondent | Ms H Baxter | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
The applicant is currently facing the following charges:
·aggravated burglary, contrary to s 77(1) of the Crimes Act 1958;
·making a threat to kill, contrary to s 20 of the Crimes Act;
·stalking, contrary to s 21A(1) of the Crimes Act;
·trespass, contrary to s 9(1)(e) of the Summary Offences Act 1966;
·criminal damage (3 charges), contrary to s 197 of the Crimes Act;
·aggravated assault of a female (2 charges), contrary to s 24(1)(a) of the Summary Offences Act;
·use of a carriage service to menace, contrary to s 474.17(1) of the Criminal Code 1995 (Cth);
·use of a carriage services to harass, contrary to s 474.17(1) of the Criminal Code;
·use of a carriage service to offend, contrary to s 474.17(1) of the Criminal Code;
·unlicensed driving, contrary to s 18 of the Road Safety Act 1986;
·driving a vehicle causing loss of traction, contrary to s 65A of the Road Safety Act; and
·theft, contrary to s 74 of the Crimes Act.
The offences with which the applicant is charged, are alleged to have occurred between 20 September 2020 and 12 October 2020. The aggravated burglary is alleged to have occurred on 10 October 2020. The applicant was arrested and charged on 14 October 2020. He has been in custody since then.
On 20 November 2020, an application for bail was refused in the Magistrates’ Court on the basis that there was an unacceptable risk that the applicant would commit an offence while on bail and/or endanger the safety or welfare of any person. On 1 December 2020, the applicant filed an application for bail in this Court. Having been accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — aggravated burglary[1] — pursuant to s 4C of the Act, this Court is required to refused bail unless ‘satisfied that a compelling reason exists that justifies the grant of bail’.
[1]See Item 22(b) of Schedule 2.
The alleged offending
The principal charges involve a single complainant, the applicant’s former domestic partner. The prosecution case is that the applicant and the complainant were domestic partners until their relationship ended on about 12 September 2020, when the applicant moved out taking his possessions with him.
On 30 September 2020, the complainant sent the applicant a text message telling him to stop contacting her. The prosecution alleges that from that date until 12 October 2020, the applicant attempted to call the complainant, and/or left voicemail messages for her, on 64 occasions. He also sent 63 text messages and an unknown number of Facebook Messenger messages.
On 2 October 2020, the applicant is alleged to have sent a text message stating, ‘Just remember my next move is all your fault. Swinging, slashing or shooting’. The following day, he sent a text message saying, ‘Thanks for everything. I’ll see you tomorrow. Bring em all as I won’t be alone’. On 9 October 2020, he sent a text message stating, ‘Your (sic) a dead dog’.
On 10 October 2020, the applicant is alleged to have sent multiple messages stating, ‘Make sure he’s there tomorrow … Think your (sic) mutt will protect or care for you. Your (sic) both a joke’, ‘Your (sic) a dead dog’, ‘See you tomorrow if you think your (sic) anything compared to me. Fucking mutt. Did you really think I wouldn’t find out and put you in your (sic) place, you fucking mutt’, ‘What, nothing to say mutt. That’s all you are. I’ll have fun with you’, and ‘Be back soon’. The applicant is also alleged to have sent a Telstra voice-to-text message stating, ‘This is my 10 second message Doug (sic),[2] see you tomorrow, your (sic) dead mutt’. Additionally, part of a longer message stated, ‘The wheels are in motion, I’ll make sure you are alone with nothing and no one. You literally are a crack whore. You will burn in hell’.
[2]From its context, it appears that ‘Doug’ was either a mistyping of ‘Dog’ or an erroneous auto-correction of the same word.
On 10 October 2020, at approximately 8 am, the applicant is alleged to have attended the complainant’s home and began banging on the rear door. The complainant got up from bed, where she was sleeping with her five year old daughter. The complainant saw the applicant. At that time he was demanding to be let in, yelling, ‘If you don’t let me in I’ll kick the door down’. The prosecution case is that the applicant then broke in, by forcing the door open, breaking the frame and lock as he did so. He then entered the bedroom and began abusing the complainant, yelling at her and calling her a cunt (in front of the five year old child, who was crying).
The applicant is also alleged to have punched a cement sheet wall with such force that his fist went through both sides of the cement sheet wall. He is then accused of taking and damaging the complainant’s mobile phone, before leaving her home with $350 that he took from the kitchen bench.
The applicants’ material and contentions
The application for bail is supported by an affidavit of the applicant’s solicitor, Khushbu Malhotra, and an affidavit of the applicant’s mother.
In her affidavit, Ms Malhotra deposed to the applicant being 49 years of age, and having the support of his family, including his mother and stepfather. Ms Malhotra deposed that if the applicant is released on bail he can live with his mother and stepfather.[3]
[3]In argument, I was told that there would be a period in January 2021 during which it was proposed that the applicant would live with another relative while his mother took a holiday. No issue was taken by the respondent about the appropriateness of this arrangement, and nothing further needs to be said about it in these reasons.
In relation to the applicant’s personal circumstances, Ms Malhotra deposed that the applicant has a child from a previous relationship (not with the complainant); and that before COVID restrictions were introduced in March 2020, the applicant was spending time with his son on a weekly basis. Ms Malhotra exhibited to her affidavit a copy of a letter written by the applicant’s ex-partner, which was supportive of the applicant and described how he had ‘grown as a person and matured with age’.
Additionally, Ms Malhotra deposed to the applicant being employed on a full-time basis as a truck bodybuilder/welder at Complete Truck Bodies Pty Ltd for approximately three weeks prior to his arrest in respect of the present charges. A letter from Complete Truck Bodies, exhibited to Ms Malhotra’s affidavit, stated that ‘continued employment for [the applicant] is available when he is released’.
In her affidavit, Ms Malhotra noted that the applicant has been assessed by the Court Integrated Services Program (CISP) and Court Remand Outreach Program (CROP) as being suitable for case management with CISP in the community.[4]
[4]While Ms Malhotra’s affidavit exhibits a CISP report dated 13 November 2020, a subsequent report dated 14 December 2020 is similarly supportive of the applicant being admitted to bail. I should also note for completeness that a third report dated 18 December 2020 was provided to my chambers without leave having been sought to supplement the evidence after the matter had been heard and reserved upon. As it turned out, this report is identical (save for the date) as the report of 14 December 2020.
As to the strength of the prosecution case, delay and the likely sentence to be imposed, Ms Malhotra deposed that the applicant’s case is that he attended the complainant’s home in order to recover money she owed him. Ms Malhotra submitted that the prosecution ‘cannot prove’ the aggravated burglary charge beyond reasonable doubt. Moreover, any trial is unlikely to be listed before 2022, due to delays associated with the COVID-19 pandemic — and this is ‘likely to result in the applicant spending time on remand far greater than any sentence imposed if bail is refused’.
Ms Malhotra deposed to the applicant’s criminal history in Victoria, New South Wales, South Australia and Western Australia, exhibiting the relevant criminal histories. She then expressed the opinion that the most serious of the applicant’s convictions is one for armed robbery in 2002. As to compliance with earlier grants of bail, Ms Malhotra deposed that the applicant ‘has a total of four Victorian priors for breaching his bail and one Western Australian prior for breaching his bail’. The applicant’s most recent prior conviction for failing to answer bail is on 15 August 2018.
Next, Ms Malhotra deposed to a full no-contact family violence intervention order, naming the complainant and her daughter as the protected persons, having been made ‘by consent without admissions’ on 20 October 2020. A copy of that order was exhibited to Ms Malhotra’s affidavit.
Finally, Ms Malhotra deposed to the existence of potential bail conditions which she submitted would ameliorate any risk posed by the applicant to one that was not unacceptable within the meaning of the Act.
The plaintiff’s mother’s affidavit is a short affidavit, offering the sum of $1,000 as a surety for the applicant. That affidavit exhibited a copy of a bank statement dated 8 December 2020 evidencing her ability to provide a surety in that amount.
In written submissions, counsel for the applicant identified the matters relied upon in combination to demonstrate there is a compelling reason that justifies the grant of bail. The matters identified are as follows:
·‘strength of the prosecution case — issues to be tried’;
·‘delay in proceedings due to COVID-19 pandemic’;
·‘availability of bail support services’;
·‘onerous conditions in custody whilst awaiting trial due to COVID-19 pandemic’;
·‘the availability of a stable residential address, full-time employment, strong family support and ties to the jurisdiction’; and
·‘the availability of a $1,000 surety from the applicant’s mother’.
In elaborating on these matters, counsel stated that, with respect to the charge of aggravated burglary, there was no evidence of any physical assault within the premises and no evidence that the applicant verbally threatened the complainant while inside the premises. It was submitted that there are real issues to be tried in respect of the aggravated burglary charge, the complainant’s account of the applicant’s conduct being in dispute — and the complainant’s credibility and reliability being in issue.
As to delay, counsel observed that the matter is next listed for a committal case conference on 13 January 2021, and it was likely that a committal hearing would not be heard until mid-2021. Published relisting schedules for jury trials in the County Court suggest that any trial would not be heard before the middle of 2022, and might not be heard until April 2023. She then submitted that the applicant, if not granted bail, could spend up to two and a half years on remand — ‘a significant and inordinate period’. Counsel then submitted that this delay could result in the applicant spending more time on remand than the likely sentence or non-parole period. While it was accepted that the charge of aggravated burglary was inherently serious, it was submitted that the alleged aggravated burglary in this case was ‘not an especially serious example of the offence given a reasonably short duration, no physical assault took place, no weapons were used to cause significant fear and the offending did not occur in breach of any court orders’.
As to any risk of the applicant endangering the safety and welfare of the complainant, counsel submitted that such a risk was not unacceptable in circumstances where there was a full no contact family violence intervention order in place (which the applicant had consented to); the applicant accepts that his relationship with the complainant is over, and he has no desire to have any contact with her; the applicant will have the support of CISP in the community; he has a stable residential address and will be working full-time; and strict bail conditions can be imposed, including a geographical exclusion.
With specific reference to the risk of the applicant endangering the safety or welfare of any person or committing an offence while on bail or failing to surrender into custody, it was submitted that these risks could be ameliorated to an acceptable level, again by the imposition of strict bail conditions requiring, amongst other things, compliance with the family violence intervention order, compliance with the requirements of the CISP program, daily reporting, the surrendering of any valid passport, a prohibition on travel south of Frankston and a surety.
Respondent’s material and contentions
The respondent opposed bail. In doing so, it relied upon an affidavit affirmed by a solicitor employed with the Office of Public Prosecutions, Timothy McCulloch. In his affidavit, Mr McCulloch noted, among other things, that the applicant has a pending charge for breach of a violence restraining order in Western Australia and a pending charge for the breach of a community order in Western Australia.
In his affidavit, Mr McCulloch summarised the applicant’s criminal history as including convictions for findings of guilt in Victoria, New South Wales, South Australia and Western Australia ‘for serious offences including armed robbery, breaches of sentence orders, breaches of violence restraining orders, robbery, assault, intentionally causing serious injury, criminal damage, theft and burglary in addition to multiple dishonesty and driving offences.’
Additionally, Mr McCulloch said that a review of the applicant’s criminal history discloses that the applicant, has been convicted of failing to answer bail on 15 August 2018; failed to appear in court on 31 March 2013 and 22 May 2013, and as a consequence has outstanding warrants in Western Australia; has been convicted of failing to answer bail on 6 April 1999, as a result of a failure to appear in court on 9 December 1998; has been convicted of failing to answer bail on 3 March 1998; and has been convicted of failing to answer bail on 26 February 1997.
The respondent opposed bail on the basis that the applicant has not demonstrated that a compelling reason exists that justifies the grant of bail. Additionally, the application was opposed on the basis that the applicant is an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail, and failing to surrender into custody if granted bail.
Consideration
Having been accused of a number of Schedule 2 offences within the meaning of s 3 of the Act, I am required to refuse the applicant bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[5] The applicant bears the burden of satisfying me as to the existence of a compelling reason.[6] In considering whether a compelling reason exists, I am required to take into account the ‘surrounding circumstances’ — being, amongst other things, the matters set out in s 3AAA of the Act.[7]
[5]See s 4C(1A) of the Act.
[6]See s 4C(2) of the Act.
[7]See s 4C(3) of the Act.
Additionally, s 4E of the Act requires me to refuse the applicant bail if I am satisfied that there was an unacceptable risk (the burden of satisfaction on this issue being on the respondent)[8] that the applicant would, if released on bail:
(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.
[8]See s 4E(2) of the Act.
Sections 4AA, 4C and 4D of the Act require me, as step one, to consider the compelling reason test; and then (if the compelling reason test was satisfied) to move, as step two, to the unacceptable risk test.[9] At each stage of the analysis (both step one and step two), I am required to take into account the ‘surrounding circumstances’ identified in s 3AAA of the Act.[10]
[9]See s 4C(4) of the Act.
[10]See ss 4C(3) and 4E(3)(a) of the Act.
Additionally, s 1B of the Act requires the Act, including the provisions to which I have just referred, to be applied and interpreted having regard to the following, to some extent competing,[11] matters:
(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; and
(c)promoting fairness, transparency and consistency in bail decision-making; and
(d)promoting public understanding of bail practices and procedures.
[11]See Re Ceylan [2018] VSC 361 [32] (‘Ceylan’).
The principles concerning the application of the compelling reason test were not in dispute in this application. The relevant principles were summarised by the Court of Appeal in Rodgers v The Queen[12] as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[13]
[12][2019] VSCA 214.
[13]Ibid [43] (citation omitted).
While the applicant relied upon a combination of matters as establishing a compelling reason justifying the grant of bail, in argument, counsel for the applicant submitted that the ‘prominent factor’ was delay.
If there were to be a delay of the order of two and a half years, as suggested by the applicant, that would be a matter of great concern, particularly having regard to the requirement for this Court to take into account the presumption of innocence and the right to liberty.[14] That said, a period of delay, considered in isolation without reference to other surrounding circumstances, will not usually be determinative of any particular application for bail. Any period of delay in any case must be looked at in the circumstances of the particular case.[15]
[14]See s 1B(1)(b) of the Act. The COVID-19 pandemic has plainly caused significant delays in the hearing of matters that would otherwise be ready for trial. Those delays must be managed. Priority must be given to those cases where the accused, presumed as he or she is to be innocent, is on remand.
[15]See Re Kakar [2020] VSC 806, [29].
The likely delay in the present case is a matter of some importance in this application.[16] That delay must, however, be considered, at least, in the context of the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged.[17]
[16]Cf s 3AAA(1)(k) of the Act.
[17]Cf s 3AAA(1)(l) of the Act. See further, Re Roberts [2020] VSC 793, [23].
The applicant submitted that the case against him lacked strength and that there was a real likelihood that he would serve more time on remand than any sentence or non-parole period that might be imposed. I reject these submissions. While it is not appropriate to analyse in any detail in these reasons the strengths and the weaknesses of the prosecution case, having examined all of the material tendered on this application, I am unable to accept that the prosecution case lacks strength to the extent that it might be described as a weak case. While there are triable issues, the prosecution case is not without force.
Additionally, if the applicant is convicted following a trial, it is difficult to see how, in all the circumstances, and particularly having regard to the applicant’s extensive criminal history, the applicant could receive a sentence or non-parole period that is less than the two and a half years posited by his counsel.
Sections 4C(3) and 3AAA(1)(c) and (d) of the Act require me to take into account the applicant’s criminal history and the extent to which the applicant has complied with conditions of any earlier grant of bail as part of the surrounding circumstances when considering whether a compelling reason exists justifying a grant of bail to the applicant. The applicant has a criminal history going back more than 20 years. It is an extensive criminal history, including the offences of armed robbery, robbery, intentionally causing serious injury, unlawful assault, assault in company, criminal damage, burglary and theft. As to his history of non-compliance with previously imposed conditions of bail and, more generally, non-compliance with court orders, a review of the applicant’s criminal history reveals:
·a conviction for failing to answer bail on 15 August 2018;
·a failure to appear in court on 22 May 2013, and then again on 31 May 2013, as a consequence of which there are outstanding warrants in Western Australia;
·the breach of a violence restraining order on 15 March 2013;
·the breach of an undertaking of bail and the breach of a violence restraining order on 31 January 2013;
·the breach of a combined custody and treatment order on 11 June 2002;
·the breach of a suspended sentence order on 20 October 2000;
·the breach of a suspended sentence order on 28 June 1999;
·a conviction for failing to answer bail on 6 April 1999;
·a conviction for failing to answer bail on 3 March 1998;
·a failure to answer bail and a breach of a suspended sentence order on 26 February 1997;
·the breach of a community-based order on 23 July 1996; and
·the breach of a community-based order on 12 February 1996.
In oral argument, counsel for the applicant submitted that much of the applicant’s criminal history and his more serious offending is now ‘significantly dated’. To an extent, that submission may be accepted, but it can hardly be said that the chronology of the applicant’s offending shows that the applicant has turned away from crime and rehabilitated himself. Indeed, the messages the applicant sent the complainant which form the basis of some of the offences with which he is charged (and about which there was no dispute on this application that they were sent by the applicant) suggest to the contrary.
While counsel for the applicant quite properly identified all of the matters that tell in favour of a grant of bail (including the availability of bail support services;[18] onerous remand conditions caused by the COVID-19 pandemic;[19] the availability of a stable residential address and employment; family support; the availability of a surety; and the applicant’s mother’s undertaking to report any breach by the applicant to the informant) in the end I am far from satisfied that there is a compelling reason justifying a grant of bail in this case. Having examined all of the surrounding circumstances, the seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history, the extent to which the applicant has not complied with conditions of earlier grants of bail, and his general history of non-compliance with court orders has resulted in me not being satisfied that there is a compelling reason justifying a grant of bail in this case.
[18]Cf s 3AAA(1)(i) of the Act.
[19]As to the relevance of COVID-19 so far as bail applications are concerned, see Re Diab [2020] VSC 196, [38].
The applicant not having satisfied me that a compelling reason exists justifying the grant of bail, his application for bail must be refused. There is an additional reason, however, for refusing the application. In my view, the respondent has shown that if the applicant were to be released on bail, he would be an unacceptable risk of endangering the safety and welfare of any person, committing an offence while on bail and failing to surrender into custody. The applicant’s criminal history plainly demonstrates the existence of these risks. Taking into account all of the surrounding circumstances,[20] I am satisfied that no conditions I could impose would ameliorate those risks to a level where they were no longer unacceptable.
[20]See ss 4E(3)(a) and 3AAA of the Act..
Conclusion
The application for bail is refused.
- - -
0
3
0