Re Easson
[2017] VSC 565
•20 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0199
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by SHANE EASSON |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2017 |
DATE OF JUDGMENT: | 20 September 2017 |
CASE MAY BE CITED AS: | Re Easson |
MEDIUM NEUTRAL CITATION: | [2017] VSC 565 |
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CRIMINAL LAW – Bail – Kidnapping, intentionally causing injury, recklessly causing injury, unlawful imprisonment, unlawful assaults (multiple counts), making threat to kill, threatening to inflict serious injury, unlawful assault with a weapon, reckless conduct placing person in danger of death – Show cause situation – Serious offending – No prior criminal history – Offending during a 12-hour period – Show cause situation – Whether unacceptable risk – Factors supporting grant of bail subject to strict conditions – Bail granted subject to strict conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Pickering | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A S Dickenson | Giorgianni & Liang |
HIS HONOUR:
The applicant is currently facing charges of intentionally causing injury, recklessly causing injury, unlawful imprisonment, unlawful assault (three charges), unlawful assault using an instrument (two charges), unlawful assault by kicking, threatening to inflict serious injury, unlawful assault with a weapon (a steak knife), making a threat to kill (two charges), kidnapping, common law assault and reckless conduct placing a person in danger of death. The charges all arise out of events alleged to have occurred over a 12-hour period on 2 April 2017 in relation to one complainant. They occurred at the home of the complainant. The complainant is the applicant’s wife, from whom he was at the time, and is, separated.
The applicant was arrested on, and has been in custody since, 2 April 2017. On 5 September 2017, the applicant filed an application for bail in this Court. The applicant has previously been refused bail in respect of the present charges, in the Magistrates’ Court, on 11 May 2017 and 4 August 2017.
Having been charged with an indictable offence involving the use of an offensive weapon, the applicant accepts that, by reason of the operation of s 4(4)(c) of the Bail Act 1977 (‘the Act’), he is in a ‘show cause situation’. That is, in this case, the Court must refuse bail unless the applicant ‘shows cause why his detention in custody is not justified’.
The alleged offending
The applicant and the complainant met in 2013 and married in March 2016. The marriage broke down some months later, and the complainant moved out to her own apartment in November 2016.
The prosecution case is that, after a period of separation, the complainant took the applicant back into her apartment because he was homeless, suicidal and needed help to get back on his feet.
On 1 April 2017, the applicant told the complainant that he was in danger and needed $500. The complainant was persuaded to withdraw money from an ATM to give to another person. The following morning (2 April 2017), the complainant told the applicant that he could not stay with her any more. The complainant offered to take the applicant to find accommodation elsewhere. This caused a verbal argument which led to the applicant becoming physical and committing the offences for which he is now charged. The offending occurred over a 12-hour period and is alleged to include:
·banging the complainant’s head on the floor and striking her head several times with an iron;
·punching the complainant to the mouth whenever she spoke;
·kicking and punching the complainant and threatening to take her somewhere to be raped and tortured;
·threatening to kill the complainant, while the applicant was holding a steak knife; and
·stuffing a t-shirt into the complainant’s mouth and strangling her with a lamp cord.
As a result of the offending, the complainant suffered bruising to her head, face and body, lacerations to her head and body, and perforations to both ears. Following the offending, the complainant was taken to hospital, where she remained for two days.
The applicant’s background
The applicant is 32 years of age. He has no previous criminal history. He has a young child by a previous relationship. He has a positive educational and work history, but he also has a history of substance abuse. Up until a matter of weeks before his alleged offending, the applicant had been employed as a foreman in the civil construction industry. He lost his job, however, as a result of drug use.
A mental health court liaison service report prepared in April 2017 notes that the applicant was assessed by Box Hill Hospital’s emergency department psychiatric clinician following his arrest on 2 April, and considered suitable for support through his general practitioner, given an absence of acute mental health symptoms. A Court Integrated Services Program (CISP) report completed in August 2017 notes a history of head injuries occurring during the applicant’s childhood and adult life. The author of the CISP report expresses the opinion that, in combination with his illicit drug use, the applicant may be presenting with factors indicative of an acquired brain injury. The CISP report suggests a treatment and support plan together with conditions that should be imposed if the applicant is granted bail.
The applicant’s contentions
The applicant contends that the following matters are established by the evidence, and show cause why the applicant should be granted bail:
(a) the applicant has a positive work history and educational history, with employment in his mother’s business that is available to him if he is released on bail;
(b) the applicant has ties to the jurisdiction, strong family support and the availability of a stable residence with his mother if bail is granted;
(c) there is a CISP program available to the applicant which would reduce the risk of reoffending;
(d) the applicant’s mother has undertaken to report any breach of bail conditions to the informant;
(e) the applicant’s mother has agreed to provide a surety;
(f) the applicant has no prior convictions, never having been in trouble with the law before the matters giving rise to the present charges;
(g) the committal in this matter is currently listed for hearing on 15 November 2017, and there will be some delay in any trial if the matter does not resolve at committal;
(h) the present time on remand is the applicant’s first time in custody.
As to the issue of whether the applicant is an unacceptable risk of further offending or an unacceptable risk to the complainant, the applicant submitted that any such risk could be appropriately dealt with by the imposition of bail conditions as to residence, reporting to police, engaging in a CISP program, not contacting witnesses, not leaving the state, being subject to a curfew and a surety.
The respondent’s contentions
The respondent opposes bail, submitting that the applicant has not shown cause why his detention in custody is not justified. Moreover, the respondent contends that the applicant poses an unacceptable risk to the complainant.
Additionally, the respondent submitted that the bail conditions proffered by the applicant in support of his application ‘do not address the circumstances which constitute an unacceptable risk’. Specifically, the respondent noted that if the applicant was bailed on condition that he live in his mother’s home, the applicant would have access to two registered firearms. At the hearing this morning the registered owner of the firearms, the applicant’s mother’s partner, undertook that, if bail were to be granted to the applicant, the firearms would immediately be moved to, and kept at, different premises to which the applicant has no access – and that he would inform the informant of his compliance in respect of this matter.
Analysis
There is some force in the respondent’s submissions. The charges the applicant is facing are serious. Having regard to the nature and extent of the allegations made against the applicant, it cannot be said that releasing the applicant on bail would not involve any risk to the complainant. That said, in circumstances where the applicant has no prior history of violence, I am persuaded that such risk, as releasing the applicant on bail might involve, can be ameliorated by the imposition of strict bail conditions. I am fortified in this conclusion by the favourable assessment of the applicant conducted, and reported on, by CISP this morning – noting that the author of that report has recommended the applicant for case management by the CISP team based in Ringwood, and has devised an initial treatment and support plan for the applicant.
Moreover, given the applicant’s otherwise favourable history, the fact that he has no prior criminal history, and the fact that he has shown a willingness to engage in programs that would deal with his drug issues and reduce his risk of further offending, I am persuaded that, in the circumstances, he has shown cause why bail should be granted. There is considerable merit (and potential benefit for both the applicant and the wider community) in addressing the applicant’s drug, and any mental health, issues now rather than later.
While the applicant has expressed a desire in the past to leave Victoria, I do not think that if bail were to be granted that he would pose an unacceptable risk of failing to answer his bail. The applicant, not having ever been in trouble before, has no bail history – much less any unsatisfactory bail history. However, in order to address the risks of the applicant to the complainant in the circumstances of this case, I propose to impose bail conditions that are somewhat stricter than those proffered by the applicant. These bail conditions will also address any risk that the applicant might not answer his bail.
The applicant will be admitted to bail on his own undertaking, with one surety in the sum of $20,000 on the following conditions:
1. The applicant is to reside at his mother’s address in Millgrove.
2.The applicant is to notify the informant in writing of any proposed change of address 48 hours prior to the change occurring, and is not to change his address without the consent of the informant or an order of a court.
3.The applicant is to attend the Court Integrated Services Program (CISP) immediately after his release and thereafter follow all lawful directions made, including any treatment, counselling or supervision as recommended by CISP.
4.Without derogating from the generality of bail condition 3, the applicant is required to attend the medical appointment referred to on page 2 of today’s CISP report and to comply with the mental health care plan and any other treatment regime put in place following that appointment.
5.The applicant is to be within his place of residence between the hours of 9:00 pm and 6:00 am unless in the company of his mother.
6.The applicant is to present at the front door of his premises upon request by police during curfew hours.
7.The applicant is to surrender all passports held by him to police and not to apply for any other passport.
8.The applicant is to report to the officer in charge of the Lilydale police station, or his or her nominee, once every day between the hours of 8:00 am and 8:00 pm.
9.The applicant is not to leave the state of Victoria.
10.The applicant is not to attend or approach any points of international departure.
11.The applicant is to abstain from possessing or using any drug of dependence.
12.The applicant is not to have any contact with, or approach any, witnesses for the prosecution (including the complainant), save for the informant or her nominee.
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