Re Dinatale
[2021] VSC 104
•9 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0022
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by JOHN DINATALE |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2021 |
DATE OF JUDGMENT: | 9 March 2021 |
CASE MAY BE CITED AS: | Re Dinatale |
MEDIUM NEUTRAL CITATION: | [2021] VSC 104 |
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CRIMINAL LAW – Bail – Family violence offending – 43 year old applicant with no prior convictions – Likely period of two to three years on remand awaiting trial – Period on remand may exceed sentence imposed if found guilty – Strong family support and accommodation far away from residence of alleged victims – Availability of surety – Exceptional circumstances established – Risk can be mitigated by stringent conditions so as not to be unacceptable – Bail granted – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Hallowes SC with Mr C Terry | Stary Norton Halphen |
| For the Respondent | Ms S MacDougall | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant applies for bail on a large number of charges he faces principally alleging family violence and intervention order breaches in respect of his wife, Rachel Dinatale and their two young children.
The offending is alleged to have been committed over a period of years but mainly in the period from November 2019 to October 2020. The applicant was arrested on 9 September 2020 with some continued offending alleged after that time by virtue of telephone calls made by the applicant from prison.
The applicant has been in custody since his arrest. He has brought two unsuccessful bail applications in the Ballarat Magistrates’ Court, the most recent of them being on 11 January 2021.
The next listing date of the charges is at the Ballarat Magistrates’ Court on 15 June 2021 for a committal hearing.
The likely timing of the trial in this matter is difficult to determine, in light of the delays in the criminal justice system brought about by the COVID-19 pandemic, and the fact that criminal trials have not yet resumed in Ballarat since the onset of the pandemic. There is a real prospect, however, that the trial will not proceed until 2023.
Because of the fact that the applicant is accused of committing offences contained within Schedule 2 of the Bail Act 1977 (‘the Act’) while on bail for another Schedule 2 offence, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[1] The applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.
[1]The Act, ss 4AA(2)(c)(i) and 4A(1A).
Summary of alleged offending
The applicant and Rachel Dinatale (‘the complainant’) were in a relationship for 20 years and have been married for 15 years. They have two children together, Isabella and Ethan, aged 12 and 8 years respectively.
The allegations against the applicant arise from events between January 2015 and October 2020. These events, as alleged by the prosecution, can be summarised as follows:
On 20 January 2015, the applicant threw the complainant against their bedroom wall and hit her head against it, causing pain and bruising. He threw her on their bed while she was holding Ethan, then aged two, and broke her mobile phone. The complainant’s injuries were documented by her general practitioner two days later.
On 2 November 2019, the applicant punched the complainant to the back of her head multiple times, causing lumps to form. While she was cowering on the floor, he pulled her hair out and told her to leave their house, but took her keys and phone so she could not leave or call anyone. Ethan, who was then six years old, got in between the couple, allowing the complainant time to run to the backyard. The applicant grabbed the complainant and brought her back inside the house and threatened to kill her if she left.
On 3 November 2019, the applicant threw knives at the complainant. She attempted to phone 000 but the applicant took her mobile phone and ended the call. He threatened to kill the complainant, her parents and sister if she left their home, punched her to the face, pushed her down, and pulled her hair out. He grabbed the complainant around the throat so she could not breathe and only released his grip when she fought back. The applicant left the address in his vehicle and later followed the complainant while she drove their children to her parent’s Werribee address. He unsuccessfully attempted to cut her vehicle off, avoided his father, Aldo, who tried to intervene and eventually drove away when his behaviour was observed by an onlooker. The complainant’s injuries were later photographed by her sister.
On 10 April 2020, the applicant threw a rock at Ethan’s head. The complainant attempted to phone 000 but was grabbed by the applicant, who then lunged at her with a machete and called her a ‘fucking dog’. Ethan called 000, causing police to attend and seize 11 firearms from their home, including a loaded firearm lying next to the couple’s bed. A Family Violence Safety Notice was served on the applicant at the Bacchus Marsh Police Station, yet he immediately returned home in breach of its conditions.
A safe contact Family Violence Intervention Order (‘FVIO’) to protect the complainant and the children was imposed in the Bacchus Marsh Magistrates’ Court on 17 April 2020. This order permitted the applicant to continue to live with the family. Between 17 April and 28 August 2020, the applicant continually pressured the complainant to attend the Magistrates’ Court to get the FVIO revoked and threatened to kill her if she failed to do so. She applied to revoke the FVIO, which was listed for hearing on 4 September 2020.
On 8 July 2020, the applicant threw a plastic container at the complainant’s head, but missed and hit Isabella’s head, causing a mark. He pushed the complainant, causing her to fall and suffer bruised knees and a sore wrist, and bit her arm, leaving teeth marks and bruising. He spat twice in the complainant’s face and apologised to Isabella.
Between 13 and 26 July 2020, the applicant stated that he was going to kill himself in front of Isabella and Ethan and threw an apple which hit Isabella’s head. He threw a knife block at the complainant, pushed her to the floor, punched her head, pulled her hair out and spat in her face. A Child Protection worker started attending their address as a result of these incidents.
On 16 August 2020, the applicant threatened to kill the complainant in the company of their children, stating, ‘if you leave me, I will put you in the ground like Theresa. I’ll also kill the person you are sleeping with’. This threat was allegedly in reference to the complainant’s cousin, Theresa, who was murdered by her partner.
On 24 August 2020, police attended the family home at the request of Child Protection and packed items for the complainant, Isabella and Ethan. Child Protection relayed to police the complainant’s fear that she would be killed if she left the applicant.
Between 24 August and 6 September 2020, the applicant called the complainant 110 times.
On 28 August 2020, the complainant made a statement to police detailing incidents of family violence perpetrated by the applicant. An order varying the safe contact FVIO to an interim no contact FVIO was made the same day.
Between 1 and 8 September 2020, the applicant attempted to make contact with the complainant by phoning her five times and writing messages on the back of photographs collected by the complainant’s father. He also posted videos of Isabella and Ethan on Facebook in contravention of the FVIO.
On multiple occasions between January 2017 and August 2020, the applicant hit Isabella’s horse and the family’s dog with a broom and dragged the dog around by a lead tied to its neck. These incidents were witnessed by Isabella and Ethan.
The applicant was arrested on 9 September 2020 and interviewed at the Ballarat Police Station. During his interview, he admitted to making threats to kill the complainant and hitting Isabella in the head with a banana (not an apple). He denied all other allegations and claimed that the complainant and Isabella had been the aggressors in various family violence incidents. He was charged and remanded in custody.
While on remand between 2 and 15 October 2020, the applicant made a number of phone calls to his father and a friend, Sarah Cutajar, captured on the Arunta telephone system in which he allegedly made threats to kill and injure Sarah Cutajar’s husband, Robert Cutajar, threatened to kill his neighbour, Bradley Britton, and asked his father to contact his children in contravention of the FVIO. He also asked his father to get the complainant drug tested by the Department of Health and Human Services in the hope she would, as a consequence, lose her job and be unable to pay her legal fees.
A final no contact FVIO was imposed in the Bacchus Marsh Magistrates’ Court on 12 February 2021. The applicant consented to the final FVIO being made. It expires on 11 February 2022.
Other pending matters
The applicant was subject to a number of pending charges laid by two different informants at the time of the current offending. He was charged on summons in 2018 with some firearms and drug offences, including a charge of possessing a silencer without a permit. He entered into an undertaking of bail for these matters on 25 April 2019, which bail was still on foot at the time of the current offending. The charges are yet to be finalised.
In addition, the applicant was charged on summons in June 2019 with lighting a fire during a prohibited period. That charge is yet to be finalised.
Personal background
The applicant is 43 years old. Prior to his remand, he resided at the Greendale home he previously shared with the complainant and their children. He was a stay-at-home father to Isabella and Ethan for approximately three years between 2017 and 2020, and before that ran a concreting business until suffering a serious back injury.
Since being remanded, the applicant has had no contact with the complainant and their children. He has engaged a solicitor to act for him in relation to divorce proceedings in the Federal Circuit Court and intends to seek supervised access to his children.
If granted bail, the applicant intends to reside with his parents, Aldo and Rosa Dinatale, at 16 Links Road, Sorrento.
The applicant has no criminal convictions. He was placed on diversion by the Werribee Magistrates’ Court on 11 April 2017 for making a threat to kill towards the current complainant.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
As already indicated, the exceptional circumstances test applies in this case. The applicant bears the burden in respect of that test. In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[2] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[2]Section 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Exceptional circumstances
The phrase ‘exceptional circumstances’ is not defined in the Act, but its meaning has been considered in many decisions of this Court. Kaye J in DPP v Muhaidat[3] stated the relevant principle as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[4]
[3][2004] VSC 17.
[4]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[5]
[5]See, for example, Re Brown [2019] VSC 751 (Lasry J).
The applicant’s submissions
Mr Hallowes, in his written outline of submissions and oral submissions before me, relied on a combination of matters in proof of the existence of exceptional circumstances, and in refuting the respondent’s contention as to unacceptable risk. They were:
a) Delay and likely sentence. The applicant had been in custody for almost six months by the time of the hearing, and will have been in custody for in excess of nine months by the time of the committal. A trial sometime in 2023 would mean a period in excess of two years, and approaching three years of pre-trial remand. As against that, and acknowledging the seriousness of the offending, there was, submitted Mr Hallowes, a strong possibility that any sentence received by the applicant should he be found guilty would be exceeded by the time spent on remand. Mr Hallowes advanced this as a powerful matter going towards the proof of exceptional circumstances.
b) Strength of the prosecution case. Mr Hallowes noted that the charges are largely disputed. Whilst it may be difficult to meaningfully assess the strength of a case before committal, and whilst he did not submit that the case was a weak one, it would principally depend on an acceptance of the evidence of the main complainant. Mr Hallowes submitted that this is a case in which there would certainly be triable issues, and that the Court should not find it to be an overwhelming one.
c) Lack of prior convictions. Whilst there has been the one diversion granted to the applicant, it is a very significant matter, submitted Mr Hallowes, that he comes before the Court at the age of 43 with no criminal convictions. This is a relevant matter both to the likely penalty should he be found guilty, and the likelihood of his committing further offences while on bail.
d) Family support and accommodation. The mother of the applicant gave evidence in the application, indicating that in the event of the applicant being granted bail, he would be able to reside at her holiday house in Sorrento, and that she and her husband who currently both live in Werribee would join him in living there. Mr Hallowes relied strongly on this offer of accommodation, and the other support promised by the mother of the applicant, who indicated that she would do her best to ensure he abided by any conditions of bail, and undertook to report any breaches to the informant. This was especially relevant in light of the proposal that she would act as surety under any grant of bail. In addition, Mr Hallowes pointed to the fact that the applicant’s father had supported and encouraged the applicant whilst in custody to engage legal representation to handle divorce proceedings with the complainant, which he had done. Mr Hallowes submitted that the fact of the applicant being geographically removed from the complainant and closely supervised and supported by his parents was a very significant matter.
e) Availability of psychological counselling. It was proposed that if granted bail, the applicant will engage in regular counselling sessions with Andrea McNeill, a psychologist on the Mornington Peninsula who provided a letter to the Court.
f) Availability of a surety. The mother of the applicant indicated by affidavit her preparedness to provide a surety of $100,000.
On the matter of unacceptable risk, Mr Hallowes readily conceded that the applicant did pose a risk. However, he relied on a combination of matters, including all of the above, in resisting the respondent’s contention that the risk was unacceptable. Fundamentally, he submitted, the risk about which the Court should be concerned was the risk to the applicant’s family. He submitted that the risk could be satisfactory ameliorated by the imposition of an array of conditions which he advanced to the Court. Foremost amongst these would be the residence of the applicant in Sorrento, far away in both distance and time from the complainant’s home close to Ballarat. This, coupled with a curfew, a geographical exclusion condition, and conditions limiting and monitoring his use of electronic devices would prevent any future contact with the complainant or the children.
Mr Hallowes noted that there had been no attempt to contact the complainant from custody. Whilst there had been some problematic Arunta calls from prison in which threats were allegedly made to other people and contact encouraged with the complainant, these occurred in the early days of custody and there had been no repetition of the threats to kill with which he is charged. The applicant has now had a long time to cool down, and fully understands what would happen should he initiate any forbidden contact while on bail.
There is no criminal history to be concerned about, reasonable compliance with the previous FVIO, consent by the applicant to the making of a full and final FVIO, no history of violence towards the complainant during an extended period of separation in late-2019, no proven history of breaching court orders, and stable and supportive accommodation and family to keep him in line.
Respondent’s submissions
Ms MacDougall relied on the affidavit in opposition to bail and the attached informant’s report, and her oral submissions, in asserting that exceptional circumstances had not been established, and that even if they had, the risk posed by the applicant is unacceptable.
At the outset, Ms MacDougall informed the Court that the informant had communicated the fact that the children of the applicant are apparently petrified of him, and that Child Protection have indicated an intention of stepping in should the applicant make any attempt to have contact with them. She pointed out that the two children are eye witnesses to some of the offending, and that the risk of interference with them as well as with the complainant herself is a live concern.
Ms MacDougal emphasised the significance of the conduct of the applicant since his incarceration, which, she submitted, showed his malevolence towards his wife and aggression towards some other individuals which would itself raise concerns about the safety of his family and others. It was concerning that the applicant saw fit to engage in these telephone calls from prison in the knowledge that they were being recorded and that he had been denied bail on 9 September 2020 in part because of the unacceptable risk he posed.
Ms MacDougall submitted that the charges were serious, notwithstanding that no serious injuries had been caused. This was more by good luck than good management, and there was still the risk of psychological harm and ongoing consequences for the children. The seriousness of the offending was amplified by the constant undertone of family violence, encompassing control and actual violence.
Ms MacDougall submitted that on a number of the charges, the case was not dependent on the testimony of the complainant alone. The children were witnesses to some of the conduct, and as for the offending after the remand of the applicant, he was ‘damned from his own mouth’.[6]
[6]Transcript 31.
It is true that the applicant has no prior convictions, but the pending matters beside the current charges were of some seriousness. Furthermore, the current allegations, if eventually made out, were indicative of family violence over a long period of time. At the time of the current offending, the applicant was on bail for two separate, and not insignificant matters, it was submitted.
On the question of delay, Ms MacDougall pointed out that at the committal hearing in June, the applicant would have a further opportunity to apply for bail, although she accepted that the critical issue was how long he may remain in custody until the resolution of the charges, should he not be bailed now. She did not take issue with the proposition that the trial may not be heard until 2023.
Ms MacDougall did concede that it was arguable that exceptional circumstances had been made out, but submitted that even if this was so, the circumstances of this case would dictate that the risk posed by the applicant of endangering the public, committing offences on bail and interfering with witnesses is an unacceptable one, which cannot be satisfactorily mitigated by the imposition of any conditions.
Analysis
In considering the question of exceptional circumstances, I am required to consider the surrounding circumstances, including but not limited to those outlined in s 3AAA of the Act.
The offending alleged in this case has a number of concerning and distasteful aspects to it, including the family violence setting attaching to most of it, the repeated nature of the assaults and threats, and the focus of the offending upon vulnerable and trusting people including the applicant’s children, who should be able to look to him for protection, rather than to view him with fear and distrust. One, in particular, of the alleged threats to kill was uttered in very graphic and frightening fashion.
Much of the alleged offending occurred during the period of and in breach of the safe contact FVIO to which I earlier referred. After that order was made into a no contact one, it is alleged that the applicant repeatedly breached it.
Even after the incarceration of the applicant, he allegedly engaged in some very concerning behaviour from inside the prison. That behaviour, if proven, would point to his feelings of great antipathy towards the complainant and perhaps his children at that time, his preparedness to speak in threatening terms of other individuals, and his inability, at least in those relatively early days of his incarceration, to bring his emotions under proper control.
Serious though the offending is, it is worth noting that the only charge which would have necessarily consigned the applicant to the committal stream was the charge of attempting to pervert the course of justice. All of the other charges may well have been able to proceed summarily, depending on the views of a Magistrate.
Turning to the strength of the prosecution case, Mr Hallowes correctly did not label it as weak. He submitted that there are triable issues, and undoubtedly that is so. In respect of some of the charges, there is evidence of the children supporting the account of the complainant. On other charges, there may end up being very clear evidence pointing to guilt, including the admissions of the applicant. Overall, there is no reason to view the case as being of less than reasonable strength.
The applicant has no prior convictions. There is one matter which proceeded as a diversion, and there are some other pending charges, but the fact of his having reached the age of 43 without accruing any criminal convictions is a very significant matter when bail is being considered.
The applicant was on bail and subject to a summons at the time of the current offences. That is of some significance, of course, but the charges the subject of bail and summons were of an entirely different sort than those currently before the Court.
A full no contact FVIO is in force, and I am required to take that matter into account pursuant to s 3AAA(1)(f) of the Act. I am also required by s 5AAAA of the Act to consider whether there would be a risk that the applicant would commit family violence if released on bail, and how such risk might be mitigated. I have had this matter very much in mind in considering this application.
Turning to the applicant’s personal circumstances, home environment and background, these are significant matters. In prospect should I be willing to grant bail would be the residence of the applicant with his parents at an address far away from the scene of his alleged misconduct towards his wife and children. His mother, who would act as surety, has undertaken to keep a close eye on him and to report any infractions. The indications are that the applicant, with the guidance of his father, has begun to move on, to the extent of instructing lawyers to act on his behalf in divorce proceedings. There is no indication of any ongoing desire to contact his wife and family, although the risk that he may seek to do so cannot be dismissed.
I take into account the understandably negative attitude of the wife and children of the applicant to a grant of bail. It is a sad fact of this case, and one with which the applicant must come to terms, that his wife has expressed the strong fear that should he be released on bail, he will seek to harm her and the children.
I turn now to the considerations upon which the applicant put so much store in the application. The applicant has been in custody already for almost six months. Should these matters go to trial and he remain in custody until then, the period of remand will exceed two years and may approach three years. Notwithstanding the seriousness of the offending, it seems to me to be highly likely that such a period on remand would exceed any term of imprisonment. This is an important matter in the consideration of the question of whether the applicant has discharged the onus upon him in the first step of the bail process, and would also be important should the second step arise for consideration.
Having considered all of the surrounding circumstances, and noting the very fair concession from Ms MacDougall that it is arguable that exceptional circumstances have been made out, I have reached the conclusion that the applicant has discharged the burden resting upon him of proving the existence of exceptional circumstances that justify the grant of bail. That is a high hurdle to be overcome. The applicant has done so clearly enough in my view.
Turning to the unacceptable risk test, I have anxiously considered the surrounding circumstances with an eye to that test. The applicant is accused of nasty, repeated, family violence offending, encompassing acts of violence towards his wife and two young children. As I have already noted, one of the threats to kill he allegedly uttered to his wife was a very graphic one. He has shown a willingness to breach an FVIO in place to protect her and the children. Even in custody, he allegedly continued to behave in a threatening and overbearing fashion, and in a way which manifested his strong animosity towards his wife, and apparent lack of concern for his children.
Mr Hallowes was right to concede that the applicant clearly does pose a risk . The question is whether that risk is an unacceptable one in the circumstances, incapable of being mitigated by the type of stringent conditions proposed so as not to be an unacceptable one.
A very substantial array of conditions was contemplated in submissions before me. One of them would have the applicant living with his parents in Sorrento, a long distance and some hours’ drive away from where his wife and children live. That could be supplemented by a curfew and a condition requiring him to remain on the Mornington Peninsula. Furthermore, the existing FVIO which would entirely prohibit any contact with the complainant or the children could be bolstered by specific bail conditions prohibiting any contact of any sort, and a condition requiring the applicant to present his telephone or computer to police upon their request.
If such a suite of conditions was imposed, there could be no doubt that the applicant, who has endured his first ever period of time in custody, would fully understand that any attempt to contact in any way, much less, harm, his wife or children, would have the inevitable consequence that he would be taken again into custody, with little hope of release until the resolution of the charges he faces.
In the end, having carefully considered the surrounding circumstances of this case, I have reached the view that the obvious risk posed by the applicant of endangering the safety and welfare of any person or committing an offence while on bail can be mitigated by the imposition of stringent conditions of bail so as not to be an unacceptable risk.
Conclusion
For the reasons I have stated, the applicant will be released on bail on the conditions which I will shortly detail.
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