Re Ebertowski
[2019] VSC 676
•8 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0201
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| - and - | |
| IN THE MATTER of an application for bail by DANIEL EBERTOWSKI | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2019 |
DATE OF JUDGMENT: | 8 October 2019 |
CASE MAY BE CITED AS: | Re Ebertowski |
MEDIUM NEUTRAL CITATION: | [2019] VSC 676 |
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CRIMINAL LAW — Bail — Charges of trespass, criminal damage, unlawful assault and unauthorised possession of a poison — Interim Family Violence Intervention Order now in effect — Application not opposed — Whether compelling circumstances established — Whether risk acceptable with imposition of conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4AA, 4C, 4D, 4E and 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K Grinberg | Dooge & George Defence Lawyers |
| For the Respondent | Mr P Pickering | Office of Public Prosecutions |
HIS HONOUR:
This is an application by Daniel Ebertowski (the ‘applicant’) for a grant of bail pending the plea and sentence for charges of trespass, criminal damage, unlawful assault and unauthorised possession of a poison or controlled substance. These charges arise out of an incident alleged to have occurred on 5 July 2019 and items located in his possession following his arrest on 7 July 2019.
Procedural history
The applicant was originally charged with additional offences of aggravated burglary and burglary; however, the matter resolved following a committal case conference held on 2 October 2019 on the basis that the applicant will enter pleas of guilty to the four remaining charges. The matter is next listed for a summary jurisdiction application and plea on 17 October 2019 at the Melbourne Magistrates' Court.
Following the resolution of the matter, the respondent indicated to this Court that the application for bail is unopposed and, at least by implication, accepts that the applicant has established a compelling reason and that any risk in his release can be reduced to an acceptable level by the imposition of bail conditions.
Although that both parties agree that the aggravated burglary charge will not be pursued, the charge remains on file and has not yet been struck out. In those circumstances, the applicant remains formally accused of a Schedule 2 offence under the Bail Act 1977 (Vic) (the ‘Act’) and therefore required to demonstrate the existence of a compelling reason that justifies the grant of bail. [1]
[1]See Bail Act 1977 (vic) ss 4AA(3), 4C(1A) and sched 2, item 22(b) (‘Bail Act’).
Bail was refused to the applicant on two previous occasions, being 7 July 2019 and 9 August 2019, because, in the opinion of the Magistrates’ Court, he failed to demonstrate a compelling reason and was also regarded as an unacceptable risk of committing an offence whilst on bail. At the hearing on 7 July 2019, the applicant was also found to be an unacceptable risk of endangering the safety or welfare of any person if released on bail.
On 9 July 2019, an interim Family Violence Intervention Order (‘FVIO’) was made against the applicant naming the complainant as the affected family member.
The alleged offending
In the very briefest of terms, the alleged offending involves the applicant attending at premises occupied by the complainant, Ashley Williams, on the evening of 5 July 2019.
He was identified in CCTV footage near the building before he entered the premises, knocked aggressively at the complaint’s apartment door and then forcefully entered, causing damage to her door. The complainant told the applicant that she wished him to leave several and attempted to usher him from her apartment. He, in turn, resisted and allegedly slapped the complaint’s face. Ultimately, emergency services were called, at which time the applicant left.
The applicant met with police on 7 July 2019. He was arrested and later interviewed at another police station. Whilst at the station, police seized three Sildenafil tablets that were in the applicant’s possession and for which he did not have a prescription.
During his record of interview, the applicant initially stated he could not remember the incident and may have been under the influence of unspecified substances. Later, he admitted attending the address and said that he may have had a verbal argument with her and pushed the door to her apartment open. He denied assaulting the complainant and denied damaging the apartment door, but admitted to possessing the Sildenafil without a prescription.
The applicant’s personal circumstances
Mr Ebertowski is 41 years of age and came originally to Australia from Poland in 1996 with his mother. Prior to his remand he was unemployed and living in a rooming house accommodation in Richmond.
He has a criminal history dating back to 1998, which includes matters of assault, driving, dishonesty, drug possession and weapons offences. His record also demonstrates some non-compliance with court orders, including the breach of a community-based order in 1999, committing an indictable offence whilst on bail in 2015 and breaching a Community Corrections Order in 2017. However, the present period of remand is the first time he has been in custody.
The applicable legislation
In the present application, the Act sets out a two-step test that applies to the decision to grant bail because the applicant has been charged with a Schedule 2 offence.[2] The Court must refuse bail unless satisfied that a compelling reason exists justifying the grant of bail and that any risk the applicant may pose if released on bail can be reduced to an acceptable level by bail conditions.[3]
[2]Bail Act ss 4AA(3).
[3]See ibid ss 4C(1A) and 4E.
The applicant bears the burden of establishing a compelling reason.[4] In considering whether a compelling reason exists, the Court must also take into account the relevant 'surrounding circumstances' as set out in s 3AAA of the Act.[5]
[4]Ibid s 4C(2).
[5]Ibid s 4C(3).
If the Court is satisfied that a compelling reason exists that justifies the grant of bail, then the Court is required to apply the ‘unacceptable risk’ test.[6] Pursuant this second step, the Court must still refuse bail if there was an unacceptable risk the applicant would, if released on bail:
(i)endanger the safety and welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.[7]
[6]See ibid ss 4C(4) and 4D(1)(b).
[7]Ibid s 4E(1)(a).
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court again to have regard to the relevant ‘surrounding circumstances’ outlined in the Act, and to consider whether there are any conditions of bail that may be imposed to reduce the risk so that it is not an unacceptable risk.
Pursuant to s 5AAAA(1) of the Act, the Court must make inquiries about the existence of an FVIO or other similar orders against the applicant. The Court must consider whether there would be a risk that the applicant would commit family violence if released on bail and whether that risk could be mitigated.
Further, when interpreting the Act, the Court is required acknowledge the guiding principles set out in s 1B of the Act, which provides as follows:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking account of the presumption of innocence and the right to liberty; and
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
The submissions of the parties
The applicant's submission that a compelling reason has been shown is underpinned by the following factors:
(a) the applicant has suitable accommodation and ties to the jurisdiction;
(b) the existence of an active FVIO with full conditions for the protection of the complainant;
(c) the length of time the applicant will spend in custody if bail is refused; and
(d) demonstrated compliance with the conditions of an earlier grant of bail.
The applicant has stable accommodation available to him through long-term housing. While the applicant’s rent did fall into arrears whilst he was on remand, Ms Grinberg, who appears on behalf of the applicant, advised that the accommodation is still available and the rent issue has been resolved. The applicant also submits through his counsel that he remains connected to the jurisdiction by his elderly mother, Christina Ebertowski, who lives in Melbourne.
As described earlier, an interim FVIO is in place that prohibits the applicant from contacting the complainant.
In relation to his time on remand, this is applicant’s first time in custody and he has been on remand for 93 days. It was submitted that, given his record and the offences for which he is proposing to plead guilty, he is not likely be required to serve any addition time as part of his sentence.
Finally, while the applicant concedes that he has one previous finding of guilt for committing an indictable offence whilst on bail, this is his first time in custody. Counsel for the applicant notes that should he be granted bail in relation to the present charges, any subsequent breach would result in the applicant being required to demonstrate the high threshold of exceptional circumstances before being released again.
On behalf of the applicant it is put that, given the change of circumstances — specifically, the anticipated withdrawal of the charges of aggravated burglary and burglary — the test to show a compelling reason is a formality only. Nonetheless, it is still submitted that it is put that those factors described above demonstrate a compelling reason.
In relation to the risk factors alleged if he were granted bail, the applicant submits that the imposition of the interim FVIO protecting the complainant can reduce that risk to an acceptable level. In support of this submission, the applicant notes that the alleged offending is specific to the complainant whom he has known for eight months, that there has not been a previous FVIO in place protecting the complainant, and that the applicant has not previously been charged with or convicted of any offences against the complainant.
In relation to the risk that the applicant may commit an offence whilst on bail, the applicant submits that despite his previous finding of guilt for committing an indictable offence whilst on bail, he has not committed any further offences against the Act and has appeared at multiple court dates in answer to summons without issue.
Mr Pickering, who appears on behalf of the respondent, accepts that that there is now a compelling reason and the application is no longer opposed.
There are a series of conditions that are proposed and agreed to by the parties and which, it is submitted, will reduce the potential risk the applicant poses if released on bail to an acceptable level.
Conclusion
I am satisfied that in combination with the other matters to which I have referred a compelling reason has been established.
I therefore propose that the applicant be released on bail on his own undertaking with the following conditions:
1. The applicant is to appear at the Melbourne Magistrates’ Court on 17 October 2019, and thereafter as directed by the Court;
2. The Applicant is to reside at 8/171 Hoddle Street, Richmond in Victoria (the ‘place of residence’), and not change his place of residence without the leave of the Court;
3. The Applicant is not to be absent from his place of residence between the hours of 9 pm and 6 am;
4. The Applicant is to report to the Officer in Charge of the Richmond Police Station or their nominee each Monday, Wednesday and Friday between the hours of 9 am and 9 pm;
5. The Applicant is not to contact or associate with, directly or indirectly, Ms Ashlee Williams or any other witness for the prosecution other than the informants or their nominees;
6. The Applicant is to comply with the Interim Family Violence Order (Case No. K11758413) granted on 7 July 2019; and
7. The Applicant is not to commit any acts of family violence within the meaning of Family Violence Protection Act 2008 (Vic).
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