Re Conci
[2013] VSC 368
•16 July 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0107 of 2013
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by SHANE CONCI |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2013 | |
DATE OF RULING: | 16 July 2013 | |
CASE MAY BE CITED AS: | Re Conci | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 368 | |
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CRIMINAL LAW – Application for Bail – Show Cause – Aggravated Burglary – Unacceptable risk of committing further offences – Unacceptable risk of interfering with a witness or otherwise obstructing the course of justice – Applicant member of Motorcycle gang – Applicant allegedly made threats to involve motorcycle gang in dispute subject of these proceedings – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kossimatis | Valos Black & Associates |
| For the Accused | Mr P Rose | Office of Public Prosecutions |
HIS HONOUR:
As a result of a schoolyard spat between children, the applicant is alleged to have contacted the principal of the school at which his children attend.
At 9.00am, on 6 June 2013, he is alleged to have made a number of threats against the family of a young girl who was also a student at that school. He is alleged to have stated that if any members from that other family continued to hassle his children he would rip the family to shreds. He also threatened to involve up to 15 members of a motorcycle gang in the dispute.
At approximately 5.15pm that day, that is over eight hours later, it is further alleged that the accused attended at the home of the other family. He attended with his wife, two sons aged 19 and 14 and his 12 year old daughter.
It is alleged that the applicant and his oldest son forced entry into the house after being refused admission by the adult members of the other family. It is alleged that both male and female adult occupants were assaulted. The applicant and his son are alleged to have punched the male repeatedly to the head.
The son is then alleged to have produced a baseball bat, which he used to strike the male on numerous occasions. The male victim states he became unconscious. The applicant's younger son is alleged to have entered the house and kicked the unconscious male. The female victim allegedly attempted to intervene during the assault on her husband but was pushed away and struck with the bat by the older son. It is alleged that the applicant yelled enough and he and his family left the scene.
The male victim allegedly remained unconscious for about two minutes. He suffered substantial bruising and some blood loss. The female victim suffered general body soreness. The two daughters of the victims hid in the rear bedroom during the attack. One of them called the police.
The applicant is charged with aggravated burglary and, relating to the male victim, intentionally causing serious injury, recklessly causing serious injury and common assault. He is also charged with intentionally causing injury, recklessly causing injury and common assault relating to the female victim.
It is common ground that the applicant must show cause why his detention in custody is unjustified, s 4(4)(c) of the Bail Act 1977.
The respondent also contends that the applicant is an unacceptable risk of committing further offences whilst on bail, or of interfering with witnesses, or otherwise obstructing the course of justice.
The applicant has been steadily employed as a spray painter for many years. His family has a limited net income and has monthly mortgage commitments of roughly $1300 per month.
References have been tendered on the applicant's behalf that speak of his steadiness and reliability. His mother gave evidence that his father is unwell and that she is having difficulty with the applicant's intellectually disabled epileptic sister. It is impossible not to feel great sympathy for the applicant's mother.
The applicant relies on this combination of facts, together with the prospects of a lengthy delay before trial to show the required cause.
The respondent argues that the circumstances of the offending and the preceding threat to the school principal, in themselves, are such as to create an apprehension of unacceptable risk. The respondent further argues, in the affidavit sworn in opposition to this application, that there is no real prospect of delay above and beyond the usual delay in bringing this sort of matter to court.
I approach this matter in the manner set down by Maxwell P in the application of Re Fred Joseph Asmar. That is, that I must undertake a one step process, the step being to determine whether the applicant has shown the necessary cause. The question as to whether the applicant is an unacceptable risk is important to the determination of this only step, but it is not a separate step for the consideration.
If I am satisfied the applicant has shown cause the prosecution will have failed to satisfy me that the applicant is an unacceptable risk of:
(a)failing to surrender himself into custody;
(b)committing an offence whilst on bail;
(c)endangering the safety or welfare of members of the public; or
(d)interfering with witnesses or otherwise obstructing the course of justice.
Delay
The applicant was charged with these offences on 7 June 2013 and appeared at a filing hearing on 11 June, which was adjourned for one day. His application for bail was refused on 12 June 2013 and his committal mention is listed for 30 August 2013. The applicant points to the likelihood of charges being laid against his older son and a delay anticipated in receiving forensic results from swab samples taken from the home of the victims and the applicant's car.
I have reached the conclusion that at this stage it is premature to postulate a lengthy delay before trial. I consider it likely that the applicant's older son will be charged with offences arising from the impugned incident. Whether that will cause any delay, or the extent of this delay, is entirely speculative at this stage.
I doubt that results of forensic testing will delay the applicant's committal and I accept that whilst the respondent may rely on that testing it is not central to the prosecution case.
It was advanced during the cross-examination of Detective Senior Constable McKenzie that the delay may in fact cause the applicant to have served all of any minimum term imposed upon a finding of guilt. I consider it likely that the applicant's trial will not be heard until the end of 2014 or perhaps early 2015.
It is not, I think, sensible to speculate on any likely jury verdict and any likely sentence that may be imposed upon a verdict of guilty. I am prepared to say this, however: should the charge of aggravated burglary be proved I regard it as a serious example of that offence.
I accept that the prosecution case is not strong on the offence of intentionally causing serious injury, which is normally reserved for offences involving more serious injuries than (perhaps luckily) have been sustained here.
Risk
I am troubled by the circumstances of the alleged offending as they impact upon the risk of further offending if bail were granted. As I have observed, it is alleged that the applicant made threats to the school principal to involve his motorcycle gang associates and rip the family to shreds.
Over eight hours later he is alleged to have taken his entire family to another family house and set about directing the activities that I have described earlier. His sons, one of whom was armed with a baseball bat, carried on the assault until the applicant called for him to desist. I consider that this is a strong case of a serious example of aggravated burglary on the evidence currently available.
I accept the evidence of Detective Senior Constable McKenzie that after his arrest and before his interview on 7 June 2013 the applicant stated that he wished to call the sergeant-at-arms of the Finks outlaw motorcycle gang.
I am not satisfied that the applicant has demonstrated that his detention in custody is not justified. At this stage I can see nothing unusual or out of the ordinary in the time that will be taken in bringing the applicant to trial, although I accept, that as sometimes happens, those circumstances may change. This will depend on whether the applicant's son is charged and if this does occur the impact that this has on the trial timing estimate.
The nature of the alleged offending, the surrounding conduct and the its impact on the aspects of risk that I have referred to are factors that I take into account in assessing whether the applicant has shown cause. I am compelled to the conclusion that he has not.
For the avoidance of doubt, if I were to adopt a two stage process as suggested by Mr Kassimatis (and I accept as is sometimes adopted by other judges in this court) and consider the aspect of risk independently of the show cause provisions, I would have been satisfied on the evidence that the prosecution have demonstrated on balance that the applicant is an unacceptable risk of
(a)committing an offence whilst on bail;
(b)endangering the safety and welfare of members of the public; and
(c)interfering with witnesses or otherwise obstructing the course of justice.
I would have been so satisfied on the basis of the evidence that I have reviewed whilst addressing the aspect of risk as part of these reasons. Accordingly, bail is refused.
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