Re Cugurno-Pfabe
[2020] VSC 687
•20 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 249
| IN THE MATTER of the Bail Act 1997 |
| v |
| IN THE MATTER of an Application for Bail by Tomas Cugurno-Pfabe |
---
JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2020 |
DATE OF JUDGMENT: | 20 October 2020 |
CASE MAY BE CITED AS: | Re Cugurno-Pfabe |
MEDIUM NEUTRAL CITATION: | [2020] VSC 687 |
---
CRIMINAL LAW – Application for bail – Accused charged with statutory murder and armed robbery – Whether exceptional circumstances exist – Whether accused is an unacceptable risk – Issue as to causation of death – Strength of prosecution case – Combination of personal issues – Bail granted on strict conditions.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused | Mr H Rattray | Balmer & Associates |
HER HONOUR:
On 6 August 2020 Tomas Cugurno-Pfabe, the applicant, was remanded in custody after being charged with murder and armed robbery.
On 29 September 2020 he gave notice of intention to make an application for bail in this Court. That application was heard on 13 October 2020.
For the reasons that follow bail is granted on the conditions set out in paragraph 61 below.
Summary of allegations
Bradley Crawford, the deceased, lived in a caravan parked in the driveway of his mother’s home in Borg Crescent, Scoresby. From there he trafficked a variety of drugs.
Denaye Whitfield was introduced to the deceased in June 2019. Thereafter she attended at his caravan on about 10 occasions to purchase drugs.
Whitfield met Benjamin Nagy in July 2019. During a conversation between them in September 2019 Whitfield told Nagy she had been buying methylamphetamine from the deceased. During a further conversation between them on 13 September 2019 Whitfield told Nagy she owed money to the deceased. Nagy said words to the effect of ‘fuck him, don’t pay him’, asked how much cash and what quantity of drugs were kept at the caravan and said he wanted to go there.
Just prior to 4.00am on 15 September 2019 Whitfield and Nagy exchanged text messages concerning the ‘job’ and arranged to meet.
At 4.41am that day CCTV footage from the Aria Hotel in Southbank shows Nagy driving from the hotel in a Mazda utility with the applicant and Jake Oldis as passengers. Prior to leaving the hotel carpark, Nagy is captured on that footage retrieving a pair of work gloves from the rear tray of the utility where a black handled, white headed mallet is also visible.
At approximately 5.38am, CCTV footage from a carpark at the Ferntree Gully Hotel depicts Whitfield meeting the applicant’s group of three. Prior to all four leaving the carpark in Whitfield’s Volkswagen, Nagy can be observed reaching into the rear tray of the Mazda utility, near the location of the mallet.
CCTV footage from Borg Crescent, Scoresby shows Whitfield’s Volkswagen arrive and park in that street about 20 minutes later.
Witnesses, including the deceased’s mother and her neighbours, report hearing loud banging noises, muffled voices and a car taking off at speed at about 6.00am.
At approximately 6.32am, CCTV footage from the carpark at the Ferntree Gully Hotel depicts Whitfield return in her vehicle with the applicant, Nagy and Oldis as passengers. That footage shows the applicant exiting the vehicle carrying a white plastic bag. The applicant, Nagy and Oldis then returned to the Aria Hotel in Nagy’s Mazda utility.
At approximately 7.01am, CCTV footage from the Aria Hotel in Southbank shows the Mazda utility parking and the three men walking towards the hotel. The applicant can be seen re-arranging the white plastic bag and placing it down his pants.
The deceased was discovered in an unresponsive state at about 4.30pm that day. He had obvious facial injuries and his caravan appeared to have been ransacked. A wooden box containing cocaine was missing. A black handled, white headed rubber mallet with blood and hair on it was found.
During a later post-mortem examination conducted by Dr Lynch of the Victorian Institute of Forensic Medicine, the cause of death was unable to be determined. After noting significant injuries in the form of multiple bruises, abrasions and lacerations to the face in multiple planes and that there was resultant bleeding into the right and left maxillary sinuses, Dr Lynch stated the following:
Whilst the cause of death [of the deceased] remains undetermined, it is appropriate to make several comments. Whilst there was patchy bronchopneumonia noted and evidence of significant lung disease, in a young otherwise healthy man it would be unusual for this in itself to be an explanation for an individual’s death. Toxicological analysis detected a number of drugs. Amphetamines and cocaine have the capacity to induce cardiac arrhythmias and thus contribution to death by these stimulants (amphetamines and cocaine) is not excluded. In terms of a possible contribution of the facial trauma to death, the impact to the head may have resulted in loss of consciousness and depending on the position of the injured individual after the incident, their airway may be compromised and lead to death as a result of cerebral hypoxia. In this instance, there was also fresh blood within the airways (as a consequence of the facial trauma) and this may have further compromised the capacity for adequate oxygenation.[1]
[1]Affidavit of Sally Vardy, sworn 28 September 2020, Exhibit SV-3: Autopsy Report Dr Matthew Lynch (undated), [8].
The applicant and co-accused were each arrested and interviewed on 11 December 2019.
During his record of interview, the applicant stated that he had attended a night club during the evening of 14 September 2019 with Nagy, Oldis and others. He was intoxicated after having consumed a large amount of alcohol as well as illicit substances including cocaine and ecstasy. He said that someone in their group received a phone call from Whitfield in the early hours of 15 September 2019 in which she claimed that the deceased had attacked her and she needed help to retrieve property from him. The applicant said that he then went with Nagy, Oldis and Whitfield to the deceased’s caravan. He said that Nagy and Whitfield entered the caravan first. After that he heard a commotion and followed them inside. The applicant said he saw Whitfield arguing with the deceased. This caused a fight to break out with punches being thrown. He said he did not punch or get punched by the deceased. He said he did not take anything from the caravan. The applicant said that the deceased was bleeding from the head, but conscious when the group left the caravan. He said that the item he placed down his pants on returning to the Aria Hotel was his jumper.
Following the record of interview, the applicant was recorded speaking with covert operatives inside his holding cell. He stated that he went to the caravan after he was told that the deceased was ‘holding’. He said he struck the deceased twice to the head with a hammer, which he then left behind. He said that his friend placed the deceased in a choke hold while he took two ounces of methylamphetamine and one ounce of cocaine from the caravan. He said that he then ‘smashed’ the drugs. The applicant also said that he would flee to Tasmania if released from custody.
On 6 August 2020 the applicant was arrested and charged with both murder[2] and armed robbery.[3] He was remanded in custody.
[2]Contrary to s 3A of the Crimes Act 1958 (Crimes Act).
[3]Crimes Act, s 75A.
Relevant Legal Principles
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[4] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[4]Bail Act 1977 (Act), ss 4AA(1), 4A(1A) and 4A(2). The applicant is charged with a Schedule 1 offence.
The meaning of exceptional circumstances is well known. Variously expressed, it means that the circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[5]
[5]Act, s 4E(3).
The Court must also take into account the guiding principles set out in s 1B(1) of the Act.
Personal background of the applicant
The applicant is 26 years of age. He and his two siblings were exposed to significant family violence from an early age. Their father was prone to mood swings and violent behaviour fuelled by alcohol and drug use. The applicant’s mother made several attempts to escape the relationship with her children before finding accommodation in a women’s shelter. The applicant’s mother went on to marry the applicant’s step-father several years later.
The applicant attended multiple schools throughout his childhood due to his family’s frequent relocation. He struggled academically and socially. He left school in year 10 to undertake an apprenticeship in cabinetry. Prior to his remand, the applicant resided with his mother and step-father in Mount Martha. He was employed part-time at his mother’s Mornington antique store restoring furniture. He also undertook casual work as a pool tiler in his step-father’s business.
The applicant has a history of regular cannabis use. He reports a binge pattern of other illicit substance use, particularly methylamphetaime. The applicant was hospitalised in 2019 due to a drug overdose.
The applicant experiences low mood, sadness, difficulty sleeping and hypervigilance as a result of his childhood experiences. A psychological report authored by Dr Peter Kyriakoulis on 6 September 2020 records the applicant as having been diagnosed with a major depressive order, complex post-traumatic stress disorder and substance abuse and dependence disorder. The applicant is not prescribed any medication for these conditions.
Exceptional Circumstances
The applicant relies upon a combination of matters to establish exceptional circumstances, emphasising most strongly the weakness of the prosecution case. He concedes that none of the circumstances upon which he relies are individually exceptional.
Strength of the prosecution case
The applicant is charged with statutory murder, the foundational offence being armed robbery. The Crown submits that the record of interview given by the applicant together with the admissions he made to the undercover operatives during the covert recordings, in the context of the remaining evidence, supports the following inferences:
a. The applicant agreed with his co-accused to participate in an aggravated burglary and robbery on the deceased.
b. The plan was to use violence and/or force and/or the threats of violence or force to compel the deceased to hand over drugs and cash.
c. The applicant chose to take the hammer (mallet) with him during the robbery.
d. The hammer (mallet) was sourced from the back of Nagy’s ute either on departure from the city or on arrival at the Ferntree Gully Hotel.
e. The hammer (mallet) was transported from the Ferntree Gully Hotel to the deceased’s caravan in Whitfield’s vehicle.
f. By adopting the possession and use of the hammer the applicant elevated the plan from robbery to armed robbery.
g. The applicant continued to participate in the elevated crime of armed robbery.
h. The applicant used the hammer (mallet) to strike the deceased to the head.
i. The applicant stole drugs from the deceased.
j. The applicant and/or co-accused thereby (unintentionally) caused the death of the deceased.
The Crown submits that the evidence against the applicant is strong. He has admitted the elements of armed robbery and that he struck the deceased to the head during the course of the armed robbery. He also witnessed his co-accused hold the deceased in a choke hold during the course of the armed robbery. Having consciously, voluntarily and deliberately been involved in the armed robbery of the deceased, it is open for the jury to find that the violence inflicted on the deceased during that armed robbery was a substantial and operative cause of his death. The Crown submits that is so despite the inability of the pathologist to determine the exact cause of death.
The applicant submits that the prosecution will be unable to exclude the reasonable possibility that the deceased’s death ‘was caused’[6] by his underlying chronic lung disease, unhealthy lifestyle and his consumption of drugs. The applicant further submits, relying upon crime scene photographs, that the deceased may have been conscious following the assault and sustained facial injuries by falling onto a hard surface in the caravan.
[6]Outline of Submissions in Support of Application, dated 12 October 2020, [9].
The applicant submits that the height of the evidence for the prosecution is that the facial injuries to the deceased may have contributed causally to the deceased’s death but, relying upon Royall v The Queen,[7] argues that that is not enough.
[7](1991) 172 CLR 378 (Royall).
In Royall, the High Court considered the issue of causation and intention. There, the accused had been charged with murder contrary to s 18 of the Crimes Act 1900 (NSW). The prosecution needed to prove that the act of the accused which caused the death was done with intent to kill, intent to inflict grievous bodily harm or with reckless indifference to human life.
The deceased had died after falling from the bathroom window of a sixth floor flat. What had occurred in the bathroom immediately before that fall was unknown, although there was forensic and other evidence suggestive of certain scenarios.[8] The Crown case was put in three alternative ways. First, that the accused pushed the deceased from the window. Second, that the deceased fell from the window in trying to avoid a blow or attack from the deceased. Third, the deceased jumped from the window in the reasonable apprehension that if she remained in the bathroom she would suffer further life threatening violence from the accused.
[8]The accused had told police that the deceased had taken her own life.
The case concerned the adequacy of the directions given as to the intention necessary to accompany each alternative cause of death.
In the instant case, which alleges statutory murder and not common law murder, no question of murderous intent arises. Rather, the issue is whether a significant contributor to the death or a substantial and operating cause of it was an act or acts of violence done in the course or furtherance of the armed robbery.
In Royall, the High Court made a number of observations as to the issue of causation as an issue separate from intention. Mason CJ, citing Barwick CJ in Ryan v The Queen,[9] stated that the issue of identifying the act causing death is within the province of the jury, under proper direction.[10] Brennan J said that the basic proposition relating to causation is that the accused’s conduct, by act or omission, must ‘contribute significantly’[11] to the death of the victim. It need not be the ‘sole, direct or immediate’ cause of death.[12] Deane and Dawson JJ stated that there may be no single cause of death, but if the conduct of the accused is ‘a substantial or significant’[13] cause of death, that will be sufficient to sustain a conviction for murder (assuming intention, if relevant, was also satisfied). Their Honours said that it was a matter for the jury to determine if the connection between the accused’s conduct and the death of the deceased was sufficient to attribute causal responsibility to the accused. Gaudron and Toohey JJ said that the jury does not have to be able to isolate a single cause of death but will concentrate upon whether an act of the accused ‘substantially contributed’ to the death.[14]
[9](1967) 121 CLR 205.
[10]Royall, 385.
[11]Royall, 398.
[12]Royall, 398.
[13]Royall, 411, 412.
[14]Royall, 423.
This law is uncontroversial.
I accept that there is a triable issue as to whether the facial injuries sustained by the deceased during the armed robbery, caused by the mallet or otherwise, must have contributed significantly to his death or been a substantial and operating cause of it.[15] I also accept that there is a triable issue as to whether the choke hold of the deceased by Nagy during the armed robbery was similarly sufficiently contributory to or operative of it.
[15]See Re Whitfield [2020] VSC 632 (Whitfield), [45].
I treat with a degree of scepticism the applicant’s submission that the autopsy report of Dr Lynch, particularly the portion reproduced above in paragraph [15], is reason to conclude that the applicant will be inevitably discharged from the murder charge at committal.[16]
[16]Challenge of the evidence through cross-examination is yet to come.
First, no single cause of death has been identified. The evidence of Dr Lynch as currently expressed does exclude the reasonable possibility of lung disease or drug induced cardia arrhythmia being the cause of death. It may establish the reasonable possibility of such matters being a cause of death. Second, that says nothing about whether such matters or other matters are substantial contributors to death. Third, contrary to the submission of the applicant, I take the reference to ‘a young otherwise healthy man’, aside from significant lung disease, to be a reference to the deceased or at least capable of being a reference to the deceased, his poor oral hygiene and bad diet notwithstanding. The remainder of the autopsy report repeatedly uses the words ‘normal’ and ‘unremarkable’ with respect to the findings upon internal examination. Fourth, the use of the word ‘may’ by Dr Lynch to describe the possible contribution of facial trauma to death is of a piece with his description that lung disease as the explanation would be ‘unusual’, or the capacity of illicit drugs to induce cardiac arrhythmias is ‘not excluded’.
However, I accept that the autopsy report, and that portion in particular, does not assist in identifying with any precision a substantial cause of death. The prosecution arguments as to causation will necessarily involve synthesis of all the circumstances established by the totality of the evidence, not all of which is before me on this application.
I have examined the crime scene photographs as relied on by both parties. There is no evidence before me of opinion as to what the blood spatter and/or blood staining does or might establish. I am unable to determine if it indicates that the deceased was conscious and moving around his caravan after the departure of the applicant and co-accused at all or for what period or in what manner. It may be that inferences as to these matters are reasonably available.
Accordingly, I consider the issue of causation, on the evidence before me, to be a hurdle in the prosecution case and a matter for a jury to determine. It is unnecessary to assign a descriptor to the strength of the prosecution case, but I accept on this application that this hurdle is significant.
A second issue raised as to the prosecution case was that of the foundational offence for statutory murder. The applicant sought to raise ‘bail parity’ with his co-accused Whitfield. In her successful application for bail, Whitfield developed an argument, separate from the causation issue and unique to the case against her, as to the foundational offence for the s 3A Crimes Act charge.
While it is useful to refer to certain aspects of the bail application made by the co-accused Whitfield, I do not propose to compare the arguments made for Whitfield, or her personal circumstances, with the application currently before me. It is sufficient to note that the causation issue is common in the prosecution case against all of the accused. The application will otherwise be determined on its own merits.
Other matters
The applicant is still a young man. He has no prior criminal history and, consequently, has never been admitted to bail. He has never before spent any time in custody. His experience of first-time remand, in the current restrictive conditions mandated by the COVID-19 pandemic, is submitted to be a factor favouring bail.[17]
[17]Re Broes [2020] VSC 128, [40].
He enjoys the support of both his mother and step-father. They would provide him a stable residence and full-time employment. I accept the unchallenged evidence of each of them as to the measures they will adopt in the event that the applicant is granted bail. To summarise, it is proposed that the applicant would live at their address with them and his step-father’s son. The applicant resided here prior to his remand. He would work three days per week at his mother’s antiques business, during which time she would supervise him, including driving him to and from work. He would also work three days per week with his step-father in his pool tiling business, during which time he would supervise him, including driving him to and from work.
The applicant’s mother states that she first suspected the applicant was experimenting with drugs when he was aged about 16 years. She first confronted him about drug use when he was in his early 20s, at which time he denied his drug use was a problem. The applicant left home at about the age of 22 or 23 and thereafter was in infrequent contact with his mother, until about the age of 25. She again confronted him about his drug use. He admitted his problem and was persuaded to return home in about June 2019. She provided financial support and employment to him. She did not know the extent of his ongoing drug use.
The applicant’s mother deposes that she is willing to fund medical and psychological intervention to address the drug issues of the applicant and that he has expressed to her his eagerness to engage in that process. As noted above, the Court has received a psychological report of Dr Kyriakoulis which indicates that between March and July 2020, the applicant attended seven psychological therapy sessions. The applicant states that he would be willing to undergo supervised urine drug screens three times per week as part of his bail conditions. It was confirmed during the hearing that a number of drug testing facilities local to the applicant are capable of supervising urine tests, even during the COVID-19 pandemic.
Both the applicant’s mother and step-father offer to give not insignificant undertakings that they will each supervise the applicant while he is in their presence and if either suspects or becomes aware that the applicant has breached his bail conditions, they will contact the informant immediately. Additionally, the applicant’s mother offers a surety in the sum of $20,000. It should be noted, considering the issue of ‘bail parity’ has been raised,[18] this sum is said to represent the entirety of the funds available to the applicant’s mother and step-father. They do not own any property. The relevant factor is not the quantum of the surety proffered, but the proportion of the sum in relation to the surety’s net wealth.
[18]The co-accused Whitfield entered into bail on her own undertaking with one surety in the amount of $300,000. That amount was provided as partial equity in property owned by Whitfield’s grandparents.
The applicant also submits that delay is a relevant circumstance. Of itself it is not submitted that the anticipated delay, which the Crown submits is of the order of eighteen months to two and a half years,[19] is exceptional. Rather, the delay taken with the other factors, amounts to exceptional circumstances. The applicant conceded that the fast-tracking process currently offered by the Supreme Court may in fact result in the matter coming to trial earlier than it would have under the pre-pandemic Magistrates’ Court committal process. However, it was noted that, even if the applicant elected to fast-track to this jurisdiction, the applicant would be bound by the decision of the Crown to separate the trial of the co-accused, or not. Should one co-accused elect to follow the Magistrates’ Court committal process, it seems likely that all of the co-accused would also do so. Properly, the Crown did not put forward a firm position on this issue during the hearing of the application.
[19]The estimate, which is accepted by the applicant, depends upon a number of factors including whether the matter proceeds through the committal process in the Magistrates’ Court or the fast-track process in the Supreme Court.
Analysis
As is accepted by the applicant, murder is a serious offence. The prosecution case against him with respect to armed robbery appears to be very strong. The case for statutory murder with armed robbery as the foundational offence faces a significant hurdle as to causation. While it may be open to a jury to conclude that an act or acts of violence committed during the armed robbery was a substantial and operative cause of death or a significant contributor to it, that outcome is not inevitable. It is notable that the applicant is recorded admitting to having hit the deceased to the face with the hammer (mallet) and observed Nagy holding the deceased in a choke hold during the course of the armed robbery. However Dr Lynch’s report, detailing significant pre-existing lung disease and a cocktail of drugs in the deceased’s system, is unable to suggest a probable or even likely cause of death and is indicative of the unresolved causation issue.
I accept that the applicant has shown favourable personal circumstances. The availability of treatment and support in the community is of some weight, particularly in combination with delay, his absence of a criminal history and that the applicant is in custody for the first time. In my consideration of exceptional circumstances, I also take into account my ultimate finding that there are an absence of factors to suggest the applicant poses an unacceptable risk if granted conditional bail.[20]
[20]Re Gloury-Hyde [2018] VSC 393, [30].
Unacceptable risk
It is therefore necessary for me to address the issue of unacceptable risk.
The Crown submits that the applicant presents as both an unacceptable risk of failing to surrender into custody in accordance with any conditions of bail and of committing further offences whilst on bail. These concerns appear to be rooted in the applicant’s ‘apparent drug habit’ and comments made to the undercover operatives about fleeing the jurisdiction.[21] The Crown submits that the proposed bail conditions are insufficient to ameliorate the risks presented by the applicant of either further offending or flight.
[21]Outline of Submissions in Response to Application, dated 12 October 2020, [29].
The basis of the Crown’s concern of further offending appears to be founded upon the applicant’s illicit drug use. At the hearing of the application the Crown properly conceded that the proposed family supervision and treatment for drug abuse does go some way to ameliorate the risks of further offending.
The applicant does not have a criminal record. Notwithstanding the seriousness of the matters currently before the Court, there is no evidence to suggest that the applicant has previously engaged in criminal activity in order to support his substance abuse. As detailed in paragraph 50, the applicant has previously engaged and will continue to engage with psychological treatment. By dealing with the substance abuse issue through psychological support and the imposition of regular supervised urine testing, I am satisfied that the risk of further offending is not unacceptable.
The Crown relies on the comments made by the applicant to undercover operatives in the holding cell at Frankston police station following his arrest and interview. The Crown submits that, now the applicant has been charged with murder, the risk of flight is even more pronounced. It should be noted that the applicant has no known family or friends in Tasmania. It is noteworthy that following the applicant’s release, he did not in fact go to Tasmania. He has significant ties he has to this jurisdiction. He will be working six days per week. His mother and step-father have provided a significant surety in the context of their financial position and offered undertakings to the Court. I am satisfied that conditions imposed on the grant of bail can ameliorate the risk of flight.
Conclusion
It follows from the analysis above that I am of the view that the applicant has established the existence of exceptional circumstances to justify the grant of bail. I am also satisfied that the respondent has not demonstrated that the applicant poses an unacceptable risk.
The applicant will be admitted to bail on his own undertaking, with one surety in the amount of $15,000, to attend the Magistrates’ Court of Victoria on 2 November 2020, on the following conditions:
(a) He reside at [redacted], in the state of Victoria, and not change that place of residence without leave of the Court;
(b) He remain at those premises between the hours of 9:00pm and 6:00am each day for the duration of the bail;
(c) He present himself at the front door of the premises during those curfew hours at the request of any member of Victoria Police;
(d) He report to the Mornington police station on Monday, Thursday and Saturday between the hours of 7:00am and 7:00pm;
(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic), except as prescribed by an appropriately qualified medical practitioner;
(f) He undertake three supervised urine drugs screens per week (Monday, Wednesday, Friday) with the results of those screens to be sent to the informant;
(g) He attend psychological treatment sessions with Dr Peter Kyriakoulis on either a weekly or fortnightly basis, as deemed appropriate by his treating doctor or general practitioner;
(h) He not contact, directly or indirectly, any co-accused or witnesses for the prosecution, save for the informant;
(i) He surrender any passport or any other travel documents he may have to the Mornington Police Station within 48 hours of this order, and not apply for another passport or any other travel documents; and
(j) He not attend any points of interstate or international departure.
3
4
0