Re Cassidy
[2022] VSC 491
•25 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0199
| IN THE MATTER of an application for bail | |
| Between: | |
| JOHNNY CASSIDY | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Respondent |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 August 2022 |
DATE OF ORDERS: | 23 August 2022 |
DATE OF PUBLICATION OF REASONS: | 25 August 2022 |
CASE MAY BE CITED AS: | Re Cassidy |
MEDIUM NEUTRAL CITATION: | [2022] VSC 491 |
---
CRIMINAL LAW — Application for bail — Where applicant, aged 21, charged with dishonesty and proceeds of crime offences involving alleged “roofing scams” — Whether, if bailed, unacceptable risk of offending or failing to answer bail — Where applicant, British national on tourist visa, arrested at airport attempting to return home (to United Kingdom) allegedly fearing arrest and charge — Where alternative explanation for return home — Where no prior convictions proved — Where applicant’s passport seized by police — Where applicant’s seventeen-year-old wife pregnant, unwell, wishes to stay in Victoria and offered her passport to police — Where applicant vulnerable in custody — Where applicant and wife have premises leased for twelve months, and, despite inability to work in Australia, supported by families from overseas — Where prosecution case appears weak — Where bail conditions can ameliorate risk of flight or offending on bail — Where delay of two to three years until trial — Where, if convicted, likely sentence to be well short of pre-trial incarceration if not bailed — No unacceptable risk — Bail granted on own undertaking, with conditions — Bail Act 1977 (Vic), ss 4, 4D & 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Kretser with Ms M Shanahan | Slades & Parsons |
| For the Respondent | Mr M Roper | Office of Public Prosecutions |
HIS HONOUR:
Overview
Johnny Cassidy applies for bail. He is charged with six dishonesty or proceeds of crime offences arising out of alleged “roofing scams” committed with others.
The issue on this application is whether there is an unacceptable risk that, if granted bail, Mr Cassidy would fail to surrender into custody in accordance with the conditions of bail or commit an offence while on bail.
For the reasons that follow, I am not satisfied that any risk of the occurrence of those events is unacceptable.[1] Accordingly, bail must be granted, but with conditions.
Background
[1]On 23 August 2022, I heard and granted Mr Cassidy’s application, and made orders accordingly. On that day, I gave ex tempore reasons for my decision, but said that I would give more detailed written reasons later. These are those reasons, which, relevantly, are left in the present tense.
Arrest, charge, refusal of bail
On 31 July 2022, Mr Cassidy was arrested at Tullamarine Airport and charged with four offences. At that time, he and his wife were attempting to fly back to the United Kingdom, which is their home country.
On 2 August, Mr Cassidy applied to the Magistrates’ Court for bail, but that application was refused.
Further charges laid
Only recently, two more charges were laid. They have not been the subject of any prior application for bail. The parties agree that this Court has jurisdiction to consider bail on those charges as well.
Mr Cassidy and his wife
Mr Cassidy, aged 21, is a British national. Travelling on a British passport, he came to Australia with his wife on 3 May this year on a tourist visa. On his incoming passenger card, he claimed to be travelling here for the purpose of a seventeen-day holiday.
Mr Cassidy set up a bank account here on 31 May and registered a mobile telephone at some point.
Mr Cassidy’s wife, Bridget Doran, who is only 17, is due to have the couple’s first child in February 2023. The pregnancy was discovered soon after the couple came to Australia. Ms Doran is not charged with any offences.
Co-accused
Mark Burton, aged 23, is Mr Cassidy’s older brother, and his co-accused on some charges. On 31 March 2022, Mr Burton travelled to Australia with his wife and two children. He too is a British national.
Within a week of his arrival in Australia, Mr Burton registered the business Top Rated Roofing and Guttering Pty Ltd (“Top Rated”). The business address provided to ASIC was in Springvale. Business flyers were ordered, which recorded an address in Collins Street, Melbourne. Mobile phone numbers were listed, and “Mark” was named as the contact person. Mr Burton set up various bank accounts for Top Rated. He also engaged a digital marketing agency to set up a website for the business. These features of Top Rated were said to be instrumental in the perpetration of the alleged frauds.
Significantly, however, as the informant, Detective Steven Sinclair, conceded in evidence, these steps had all been taken well before Mr Cassidy had even entered the country.
Martin Carter, aged 35, is a co-accused of the two brothers. On 7 June 2022, Mr Carter travelled to Australia with his wife and six children. Mr Carter set up a bank account on 8 July.
Mr Burton and Mr Carter have been charged with offences similar to, but more serious than, those alleged against Mr Cassidy. Both men are in custody, and neither has applied for bail.
Prosecution case
Summary
It is alleged that the offences were committed by Mr Cassidy in company with his co-accused between 3 June and 27 July 2022. Three of the charges allege that Mr Cassidy was involved in the dishonest appropriation of a total of $177,300 from home owners on the pretence that roofing work recommended and promised by Top Rated was legitimate, when in fact it was not.[2] The other three charges allege that Mr Cassidy knowingly dealt with the proceeds of crime by allowing $119,500 to be transferred into his bank account and by the use of two second-hand motor vehicles said to have been bought with the proceeds of crime.[3]
[2]These three charges (Charges 1, 2 and 6) allege offences of obtaining property by deception, contrary to s 81(1) of the Crimes Act 1958 (Vic).
[3]These three charges (Charges 3, 4 and 5) allege offences of knowingly dealing with proceeds of crime, contrary to s 194(2) of the Crimes Act 1958 (Vic).
I shall provide a short summary of the prosecution allegations on each charge.
Charge 1:Obtain property by deception ($27,800) (30/6/22)
Vaughan Rogers engaged Top Rated to carry out roof repairs to his premises in Reservoir. He transferred $27,500 to an account with Top Rated for this purpose. The primary contact was “Mark” (who is said to be Mr Burton). Works were conducted between 4 and 14 July 2022. When Mr Rogers attended the premises on 15 July, he discovered that the work was not completed.
CCTV footage from the premises shows Mr Burton conversing with Mr Rogers on 11 July. Messrs Burton, Carter and Cassidy are shown at the address on 15 July.
Charge 2:Obtain property by deception ($50) (1/7/22)
On 1 July, “Mark” from Top Rated attended the premises of Christopher Northey to provide a quote for roof repairs. He quoted $12,000 and pressured Mr Northey to commit quickly, and then asked for a deposit of $4,000. Mr Northey became suspicious and declined to pay the money sought. He did, however, pay a call-out fee of $50.
CCTV footage from the address on 1 July shows Mr Burton conversing with Mr Northey. Mr Cassidy is shown speaking with Mr Northey while Mr Burton is on the roof.
Charges 3 & 4:Deal with proceeds of crime (VW Golf & Toyota Hilux) (15/7/22)
CCTV footage from German Auto Parts shows that, on 15 July, Mr Cassidy purchased a 2014 VW Golf. There is no evidence of the price paid.
From 3 April to 6 May, a Toyota Hilux was registered to Mr Burton. Subsequently, this vehicle was registered to Mr Cassidy.
Both vehicles, it is alleged, were used by the three accused during the offending. While it was not clear to me, it appears to be alleged that the vehicles were purchased using proceeds of crime.
Charge 5:Deal with proceeds of crime ($119,500) (3/6/22-29/7/22)
Between 3 June and 29 July, a total of $119,450 was transferred into Mr Cassidy’s account from the Top Rated account set up by Mr Burton. It is alleged that these funds are the proceeds of crime, and that Mr Cassidy knew this. Within the same period, $87,005 was withdrawn from Mr Cassidy’s account.
Charge 6: Obtain property by deception ($149,500) (16/6/22-17/7/22)
Between 16 June and 17 July, sisters Carol and Elvina Pilatti dealt with three men over roofing repairs at their premises. The Pilattis’ sister Carla was also involved in some of the events. It is alleged that the three men were Mr Burton (“Mark”), Mr Carter (“James”) and Mr Cassidy (“Jimmy”).
On 16 June, “Mark” quoted a cost of about $15,000 to make repairs at the sisters’ Brunswick West premises, but, on 29 June, he increased the quote to $54,450. A second job in relation to the property was quoted at $55,000, and later reduced to $19,000.
On 22 June, advice was given of a cost of $27,500 to repair premises owned by the sisters at Point Cook, but this quote was increased to $135,000 on 12 July. It seems that this job was arranged through “Mark”, but “James” was present at times as well.
On 16 July, one of the sisters met “Mark”, “James” and “Jimmy” to discuss shoddy workmanship at Point Cook.
Ultimately, the sisters transferred a total of $149,500 to accounts associated with Top Rated.
Submissions
Prima facie entitled to bail; question is whether unacceptable risk
The parties agree (correctly) that the nature of the charges means that Mr Cassidy is prima facie entitled to bail unless the prosecutor establishes that there is an unacceptable risk that, if released on bail, Mr Cassidy would fail to surrender into custody in accordance with the conditions of bail or commit an offence while on bail.[4]
[4]See ss 4, 4D and 4E of the Bail Act 1977 (Vic).
Director’s submissions
Mr Roper, who appears for the Director of Public Prosecutions, submits that there is an unacceptable risk that, if bailed, Mr Cassidy would fail to appear at court or commit an offence while on bail. The main factors put in support of that submission are as follows.
First Mr Cassidy has no ties to Victoria (or Australia), other than the presence of his wife and his brother, Mr Burton. Both Ms Doran and Mr Burton are British, and Mr Burton is a co-accused in custody.
Second, on 31 July 2022, Mr Cassidy and his wife appeared suddenly to vacate their rental property in Clayton, and headed to Tullamarine Airport to catch a flight to leave Australia. They did so in circumstances where, on the same day, Mr Cassidy’s older brother Mr Burton and his wife and children also attended the airport for the purpose of leaving Australia. Mr Cassidy and Mr Burton were arrested separately at the airport. This behaviour, it is alleged, occurred against a background of the arrest of three associates of the co-accused Mr Carter in the days prior.
Against that, Detective Sinclair conceded under cross-examination by Ms Shanahan, who was led by Mr de Kretser for Mr Cassidy, that Mr Carter did not seek to leave the country. Further, the detective conceded that police had not sought to speak to Mr Cassidy before his arrest or otherwise given him any indication that he was suspected of the charges about to be laid. Further still, in light of evidence that Mr Cassidy’s mother-in-law went into hospital a short while prior to the attempted return home by Mr Cassidy and his wife, the detective conceded that his initial thoughts about the reason for that behaviour might have been wrong.
Third, Mr Roper points out (and this was not gainsaid) that Mr Cassidy has no working rights in this country. An examination of his bank account shows that he has incurred significant expenses during the short period of time he has been here. Given those facts, as well as the fact that his wife is pregnant and is also disentitled to work, Mr Roper submits that there is a risk that Mr Cassidy would be forced either to leave the country by any means necessary or to commit offences to obtain funds.
Fourth, Mr Cassidy has outstanding charges in the United Kingdom:
a) First, there is a charge, from 2018, of hunting a wild animal with a dog. However, it was suggested to Detective Sinclair in cross-examination that the offence is summary in nature and is statute-barred, although the detective did not know whether that was so. (This seems likely to be correct to me.)
b) Second, there was a charge of aid and abet destruction of property (valued at over GBP 5,000) in 2019.
c) Third, there were two charges of burglary of a dwelling and one of theft from 2021.
Finally, Mr Cassidy, it was alleged initially, has a prior conviction sustained in the Netherlands for possession of false identity documents, for which he was sentenced to be imprisoned for two months, wholly suspended. That prior conviction is not admitted by Mr Cassidy. In fact, Detective Sinclair advised, in evidence-in-chief, that it now appears that it is a prior conviction incurred not by Mr Cassidy but by his brother.
Mr Cassidy’s submissions
Mr de Kretser submits that the following matters offset any perceived risk so that that risk cannot be said to be unacceptable.
First, it is submitted that the prosecution case is weak in several respects, so weak that there is a real prospect that Mr Cassidy will be discharged at committal or acquitted at trial. For example, Mr de Kretser submits that there is no evidence that Mr Cassidy received any money from the complainants or that he was involved in any of the representations or overt acts said to be part of the alleged roofing scams. He submits that there is no evidence that either vehicle was purchased using proceeds of crime or that Mr Cassidy knew that the $119,500 transferred into his account was the proceeds of crime (if indeed it were).
Mr Roper submits that this was a circumstantial case of joint criminal enterprise. In his submission, while it is clear that Mr Cassidy had a lesser role than his co-accused, there were various pieces of evidence implicating him in joint behaviour with the other two. Some of that evidence involves Mr Cassidy being present when relevant things were said by his co-accused to one or more of the complainants. That said, it is accepted that Mr Cassidy did not himself make any of the representations.
Second, Mr de Kretser points to evidence that Mr Cassidy is especially vulnerable in custody. He is only 21, is short in stature, weighs only about 54 kilograms and has a heart problem. On 5 August 2022, a “Code Black” was called at the Metropolitan Remand Centre when Mr Cassidy experienced chest pain, was highly anxious and over-breathing, and appeared pale and diaphoretic. He is also stressed at not being able to support Ms Doran through her pregnancy.
Third, there are health difficulties for Ms Doran. She has received specialist treatment for her pregnancy at Monash Medical Centre. Her midwife opines that Mr Cassidy’s incarceration has had, and will continue to have, a negative impact on Ms Doran’s mental health. Ms Doran has been prescribed doxylamine to assist with her stress and resulting insomnia following her husband’s incarceration.
Fourth, Mr de Kretser submitted that it is known that conditions in custody during the pandemic are more restrictive than usual.
Fifth, Mr de Kretser points out that, if bailed, Mr Cassidy would be able to live with his wife at a property in Clayton, over which they have a twelve-month lease until June 2023. Ms Doran has no criminal history. Currently, she has five specialist appointments to attend between now and December. Detective Sinclair conceded that, despite being given the option to fly home to her family, Ms Doran declined that course and indicated that she intends to stay in Australia.
Sixth, insofar as it is submitted that Mr Cassidy may be able to access identification documents or criminal networks that might make fleeing the jurisdiction possible, Mr de Kretser submits that there is no evidence that that is so. In his evidence, Detective Sinclair conceded that there is no evidence of that nature.
Seventh, moreover, Ms Doran is prepared to surrender her passport to police, which makes the possibility of Mr Cassidy’s flight even less plausible. On the contrary, on Mr de Kretser’s instructions, Mr Cassidy wishes to stay and assist his wife through her pregnancy and to deal with the charges against him. I accept that Ms Doran will hand her passport over to police if bail is granted.
Eighth, Mr de Kretser is instructed that the reason Mr Cassidy and Ms Doran were intending to fly home on 31 July was to visit Ms Doran’s mother, about whose illness and hospitalisation they learned on 27 July. They booked flights on 29 July. There is evidence before me in the form of a letter from an English hospital that this lady was indeed hospitalised on 23 July and that she is still in hospital.
Ninth, Mr de Kretser submits that, given the weaknesses in the prosecution case, Mr Cassidy would be foolhardy to attempt to flee the jurisdiction, as that would risk strengthening that case by creating a potential argument based on incriminating conduct. Further, the risk of detection and rearrest at a point of international departure would be very high.
Tenth, Mr de Kretser submitted that the assertion that Mr Cassidy would offend to survive is rank speculation. He also explained, and I accept, that Ms Doran is being, and she and Mr Cassidy would be if he were bailed, supported financially by family from overseas.
Eleventh, it is submitted that conditions of bail could be fashioned to ameliorate any perceived risk.
Twelfth, it is submitted that there is likely to be a delay of between two and three years before this matter gets to trial in the County Court. This delay, in Mr de Kretser’s submission, is likely to exceed any sentence of imprisonment Mr Cassidy might receive if found guilty.
In this regard, Mr Roper helpfully has referred me to two sentencing decisions of the County Court on roofing scams, one from 2020 and the other from this year. In those matters, judges imposed total effective sentences ranging from four years and nine months’ imprisonment with non-parole periods of two years and nine months to two years’ imprisonment with a non-parole period of 16 months.[5] Thus, in Mr Roper’s submission, it might be thought that there is a good chance that an immediate term of imprisonment would be imposed on Mr Cassidy, were he convicted. In his next breath, Mr Roper concedes that those were more serious cases than the case against Mr Cassidy, and that he was a lesser player than his co-accused in the offending alleged here. In the end, when regard is had also to Mr Cassidy’s personal circumstances and his youth, Mr Roper concedes that the expected delay in the finalisation of this case means that any sentence likely to be imposed on Mr Cassidy were he convicted would be well short of the period spent on remand before trial.
[5]See DPP v Dooley & Ors [2022] VCC 650 (Judge O’Connell); and DPP v McDonagh [2020] VCC 760 (Judge Parish).
Consideration
As I indicated at the outset of these reasons, I am not satisfied that an unacceptable risk requiring a denial of bail has been established.
Even if it be accepted that Mr Cassidy was attempting to evade justice when arrested at the airport — a matter about which there is some doubt in light of the evidence I have heard — I am not satisfied that there is an unacceptable risk either of flight or of offending while on bail.
As Mr de Kretser conceded, there is of course some risk of flight or offending while on bail. But, in the circumstances of this case, I accept the submission that bail conditions can be put in place to ameliorate those risks to levels that are not unacceptable. Mr de Kretser indicated that the conditions I proposed in argument are acceptable to Mr Cassidy. Mr Roper agreed that, on the assumption that bail were to be granted, the proposed conditions are appropriate.
While it is unnecessary to my decision, I also accept that, given Mr Cassidy’s relative youth, his personal circumstances, the role that seems to be ascribed to him in the alleged offending, and, even if the prior conviction is proved against him (which appears doubtful), there is a likelihood that, if not granted bail, he would spend more time in custody before trial than in serving any prison sentence he would receive if convicted.[6] To refuse bail in those circumstances — where the risk of flight or offending on bail may be reduced by conditions to an acceptable level, or even if only nearly so — would, in my view, be wholly unreasonable. Put another way, if the risks were unacceptable without consideration of that factor (and I do not think they are), the impact of delay in this case necessarily would preclude a conclusion that the risks were unacceptable.
[6]Compare El Nasher v DPP [2020] VSCA 144 at [52] (per Priest, T Forrest and Weinberg JJA).
In those circumstances, it becomes unnecessary to decide whether the prosecution case is weak. That said, it seems to me that there is a real prospect that a non-custodial sentence would be imposed on Mr Cassidy, were he convicted of only some charges. This is all the more a realistic prospect given that there do seem to be weaknesses in the prosecution case on at least some of those charges. While it is often difficult to make a meaningful assessment of the viability of a prosecution case on an application for bail, for the reasons urged by Mr de Kretser, I find it difficult to understand how some of those charges are even framed, let alone how they might reasonably be capable of proof.
Accordingly, I shall grant bail on Mr Cassidy’s own undertaking, with conditions that he:
a) reside at […], Clayton, Victoria, 3168;
b) obey a curfew at that residence between the hours of 10:00 p.m. and 6:00 a.m.;
c) present himself at the door of his residence during curfew hours, if requested to do so by a member of Victoria Police;
d) report to Oakleigh Police Station every Monday, Wednesday and Friday between the hours of 6:00 a.m. and 10:00 p.m.;
e) not contact witnesses for the prosecution except the informant or his nominee;
f) not contact the co-accused Martin Carter or Mark Burton;
g) surrender to the informant or his nominee any passport or travel document held by him within 48 hours of release;
h) not apply for any further passport or travel document;
i) not attend any points of international departure;
j) not leave the state of Victoria; and
k) appear at the Magistrates’ Court at Melbourne at 9:30 a.m. on 5 December 2022 and thereafter as directed by that court.
---
0
3
4