Re Fleming
[2019] VSC 615
•6 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0141
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER OF an Application for Bail by ALBERT FLEMING |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2019 |
DATE OF RULING: | 6 August 2019 |
CASE MAY BE CITED AS: | Re Fleming |
MEDIUM NEUTRAL CITATION: | [2019] VSC 615 |
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CRIMINAL LAW — Application for bail – Applicant charged with multiple failures to abide by reporting obligations —Applicant charged with indictable offence whilst on bail for Schedule 2 offence — Whether applicant, if bailed, presents an unacceptable risk — Application opposed — Time in custody likely to exceed sentence imposed — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions – Sex Offenders Registration Act2004 (Vic) ss 1 and 6 — Bail Act 1977 (Vic) ss 1B, 3AAA, 4A, 4AA, 4D and 4E — Hall v Pangemanan [2018] VSC 533; Re Application for Bail by Rebecca Dillon [2018] VSC 80; Re Kyle Magee [2009] VSC 384 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N Wolan | Victoria Legal Aid |
| For the Accused | Mr G Carr | Victoria Police |
HIS HONOUR:
Albert Fleming (the ‘applicant’) seeks his bail in relation to five outstanding matters relate to various offences alleged to have occurred over a four-year period between 1 August 2014 and 1 August 2018. The applicant is a registered offender pursuant to s 6 of the Sex Offenders Registration Act2004 (Vic) (‘SORA’). The charges are as follows:
· Informant O’Shea (No 1) –
o Failing to comply with reporting obligations under the SORA (two charges);
o Failing to answer bail (two charges)
· Informant Kolivas –
o Failing to comply with reporting obligations under the SORA;
o Resisting a police officer or other emergency worker (three charges);
· Informant O’Shea (No 2) –
o Failing to comply with reporting obligations under the SORA (four charges);
o Failing to answer bail;
· Informant Holland –
o Refusing a preliminary breath test;
o Failing to produce a licence on request;
o Failing to state name on request;
o Failing to state address on request; and
o Using an unregistered motor vehicle on a highway;
· Informant O’Shea (No 3) –
o Failing to answer bail;
o Failing to comply with reporting obligations under the SORA (two charges); and
o Committing an indictable offence while on bail.
The applicant has been on remand in relation to the above matters since 13 August 2018. He has been refused bail in the Frankston Magistrates’ Court on 13 August 2018, 6 December 2018 and 8 May 2019. Presently, all matters are listed for a contested hearing on 8 November 2019 in the Frankston Magistrates’ Court.
Circumstances of the alleged offending
By way of background, on 26 May 2005, the applicant was sentenced to nine years’ imprisonment after pleading guilty to maintaining a sexual relationship with a child under the age of 16 years. The child in this instance was the applicant's daughter. A six-year non-parole period was fixed. The applicant was ultimately released on parole in mid-2012.
As a result of the applicant's conviction, he is now a registered sex offender and is required to report to the Sex Offenders’ Registry for a period of 15 years. On 27 June 2012, the applicant was served with a Notification of Reporting Obligations, setting out his reporting requirements under the SORA. He was also served with copies of this notice on a number of occasions thereafter. The applicant has a history of stating that the SORA does not apply to him and that no court is a ‘court of competent jurisdiction’ to impose sanctions on him without his consent.
Informant O’Shea (No 1)
As a registered offender under the SORA, the applicant is required to participate in annual interviews. In July 2014, numerous attempts were made by the Frankston Sex Offenders’ Registry (‘Frankston Registry’) to contact the applicant regarding these requirements.
Throughout July 2014, the Frankston Registry made multiple attempts to contact the applicant to arrange his annual interview by the end of that month, but received no response. Between 31 July and 4 August 2014, the applicant sent two text messages and one letter to the Frankston Registry to the effect that he was under no lawful ‘contract’ to report, and that his communications did not confirm that a valid contract existed. On 4 August 2014, further attempts were made to contact the applicant without response.
At approximately 9 am on 21 August 2014, the applicant attended the Frankston Police Station pursuant to an earlier arrangement with police. He refused to participate in his annual interview, again stating that he did not acknowledge that a ‘legal contract’ existed between himself and Victoria Police. However, upon consultation with representatives from Victoria Legal Aid and the Salvation Army, the applicant agreed to participate in his annual interview. He was subsequently interviewed in relation to his failure to comply with the annual interview during the month of July.
On this same date, the applicant was charged with failing to comply with reporting obligations under the SORA and released on bail.
On 28 January 2015, the applicant received bail from the Frankston Magistrates’ Court to appear on 13 March 2015. The applicant failed to appear in answer to his bail. On or about this same date, the applicant sent a psychologist’s letter (presumably to police) to the effect that the applicant could not appear at court due to ‘mental health reasons’.
On 25 May 2015, the applicant was charged with failing to appear in answer to his bail.
On or around 15 August 2015, the applicant’s friend gave him with a new vehicle. The applicant did not report this change to his personal details as required under the SORA.
On 27 August 2015, the applicant again failed to appear in answer to his bail and an arrest warrant was issued.
On 29 September 2015, the applicant was arrested and charged with failing to comply with reporting obligations under the SORA and failing to answer bail.
During a record of interview, the applicant acknowledged receiving telephone calls from the Frankston Registry, but stated that he had not consented to being contacted in this manner and would only consent to communication in writing. The applicant repeatedly stated that the relevant laws were invalid and that they did not apply to him, and further that he had not consented to ‘the contract’.
The applicant was remanded in custody until 6 October 2015, when he was granted bail in the Melbourne Magistrates’ Court.
On 14 December 2015, he failed to appear in answer to his bail and a warrant to arrest was issued. By 20 June 2016, the matter had proceeded to trial in the Melbourne County Court. The applicant failed to identify himself in Court on that day and was subsequently remanded following the execution of a warrant to arrest overnight.
On 22 June 2016, the applicant was granted bail in the Melbourne Magistrates’ Court.
Informant Kolivas
At approximately 5:30pm on 5 August 2016, the applicant attended at Frankston Police Station in answer to his bail. The attending police officer advised the applicant that he needed to clarify a matter, before momentarily leaving the reception counter. The applicant left the police station on foot, and was shortly thereafter pursued by two police officers. It is alleged that the applicant attempted to run away from police, despite being informed that he needed to be arrested in relation to an outstanding matter. The applicant later allegedly resisted arrest by flexing his arms and thrashing his body back and forth. When questioned by police about why he had resisted arrest, the applicant stated, ‘I didn’t have any matters’.
On 6 August 2016, the applicant was charged with failing to comply with reporting obligations under the SORA and resisting a police officer or other emergency worker (three charges). He was released on bail.
Informant O’Shea (2)
Between 2 May and 8 August 2016, the applicant failed to comply with several of his reporting conditions under the SORA. Particularly, the applicant failed to update police regarding changes to his employment, the disposal of the car he received in August 2015, and the use two other vehicles that he was regularly driving (one of which was in the course of his employment).
On 9 August 2016, following his annual interview, the applicant was charged with four counts of failing to comply with reporting obligations under the SORA. He was released on bail.
The applicant failed to appear in accordance with bail on 9 December 2016. He was subsequently arrested on 13 December 2016 pursuant to a warrant to arrest and charged that day with failing to answer bail. He was later granted bail in the Melbourne Magistrates’ Court on 26 July 2017.
Informant Holland
At approximately 3:44 pm on 31 January 2018, police were alerted to an unlicensed person, being the applicant, driving an unregistered vehicle in Frankston. This vehicle was subsequently intercepted by police, at which time the applicant allegedly locked himself inside the vehicle. The accused was holding a small tape recorder, a sheet of paper and directing the dash camera towards the driver’s door window. He refused to provide his personal details or licence to police, instead, he asked a number of questions of the officer from the paper he was holding regarding the informant’s details and his authority to speak to the applicant. He also refused to undertake a preliminary breath test as requested by the police.
The situation escalated to a ‘standoff’, during which time the applicant contacted his employer, who subsequently attended and confirmed the applicant’s identity. The applicant’s employer convinced the applicant to exit the vehicle voluntarily; however, the applicant would not respond when addressed by his name, stating, ‘We are not Albert’.
Informant O’Shea (3)
During July 2018, police made numerous attempts to get in contact with the applicant via phone call, text message and email to arrange his annual interview as required under the SORA.
In response to calls, the applicant either would not answer his phone, or would only pick up to say that he does not answer unlisted numbers before terminating the call. In response to an email from police, the applicant wrote, ‘A response is pending. Allow up to 2 days’. The applicant did not otherwise report to police in relation to his annual interview in July 2018.
On 13 July 2018, the applicant failed to appear in answer to his bail. The applicant’s bail was revoked and warrants were issued for the Informant O’Shea (No 1) and (No 2) and Kolivas matters.
On 13 August 2018, the applicant was arrested pursuant to the warrants. He refused to be interviewed and was remanded in custody.
The applicable legislation
The applicant is charged with committing an indictable offence whilst on bail, which is a Schedule 2 offence under the Bail Act 1977 (Vic) (the ‘Act’). This offence is alleged to have been committed by him whilst he was on bail for another Schedule 2 offence, being failure to answer bail. As the applicant is accused of Schedule 2 offences, s 4AA(2) of the Act states that a ‘two-step test’ applies to the consideration of a grant of bail.
The applicant is therefore required to demonstrate exceptional circumstances exist that justify the grant of bail.[1] It is acknowledged that this is a high standard to meet given the relatively minor offences alleged. However, as Croucher J remarked in Hall v Pangemanan [2018] VSC 533 (‘Hall’), the number of offences with which he is charged has a compounding effect.
[1]Bail Act 1977 (Vic) s 4AA.
When determining whether the applicant has met this burden, the Court is required to have regard to the guiding principles set out in s 1B of the Act and the ‘surrounding circumstances’ as set out in s 3AAA of the Act.[2]
[2]Ibid s 4A(3).
If the Court concludes exceptional circumstances have been established, bail must still be refused if the prosecution satisfies the Court that there is an unacceptable risk of kind outlined in s 4E(1)(a) of the Act.[3] The burden rests on the prosecutor to satisfy the Court that a risk of that nature exists and that the risk is at a level such that it is unacceptable.[4]
[3]Ibid s 4D.
[4]Ibid s 4E(2).
When determining whether any such risk is unacceptable, the Court must again consider the surrounding circumstances of 3AAA and whether there are any conditions that could be imposed to mitigate the risk so that it is no longer unacceptable.[5]
[5]Ibid s 4E(3).
The applicant’s background
The applicant is 68 years of age, having been born 3 August 1951.
His criminal history includes the offence of maintaining a sexual relationship with a child under 16 in 2005, as well as failing to produce a licence on request, using an unregistered motor vehicle, and fraudulently using a registration label in 2016.
Submissions of the parties
The applicant relies primarily on the fact that, if bail was refused, there is a strong likelihood that the applicant’s time in custody would exceed the likely sentence imposed. At the time of the bail hearing, the applicant had served 358 days on remand. By the contested hearing on 8 November 2019, the applicant will have served 453 days. He apparently has an additional 219 days of pre-sentence detention in relation to the matters of Informants O’Shea (No 1) and (No 2) and Kolivas.
It was submitted that the charges relating to his failure to comply with reporting obligations are not serious examples of those offences. The conduct alleged relates to failures to participate in annual reviews and report changes to his employment or vehicles. Unlike an allegation of having or attempting to have contact with children, the applicant submitted that the offending alleged may not result in a custodial disposition. Counsel for the applicant provided the Court several cases and statistics to demonstrate current sentencing practices for similar offending to demonstrate the risk for the applicant's time on remand to exceed a potential custodial sentence.[6]
[6]See DPP v Salih [2019] VCC 1755; DPP v Nott [2018] VCC 814; DPP v Truscott [2018] VCC 652; DPP v Cooper [2018] VCC 2134.
Further, Ms Wolan, on behalf of the applicant, directed the Court to a recent decision of Maxwell P in Re Application for Bail by Rebecca Dillon [2018] VSC 80 (‘Re Dhillon’) where his Honour observed:
‘[J]udges have viewed as very significant in deciding whether continued custody is justified the fact that, if the applicant for bail remained on remand, [they] would be likely to serve time in custody in excess of any sentence which might subsequently be imposed.’[7]
[7][2018] VSC 80 [41].
The applicant also raised several other factors that, in combination with the lengthy period of remand, establish exceptional circumstances. These included having suitable accommodation with his brother in Frankston; the applicant’s experience in custody being exacerbated due to his age and the nature of his criminal history; the relatively minor nature of the offences alleged; and an inability to properly prepare for the contested hearing as he intends to represent himself.
Finally, it was submitted that the applicant does not present an unacceptable risk. Counsel conceded that there is always a risk of committing further offences whilst on bail, but it was argued that the gravity of the harm that would arise from such an event is not so serious as to justify his continued detention in custody. Ms Wolan, on behalf of the applicant, further submitted that conditions could be imposed that would ameliorate the risk.
On behalf of the respondent, Mr Carr properly conceded the likelihood that the applicant time on remand may exceed the likely sentence imposed and that it is a particularly significant reason to underpin the finding of exceptional circumstances.
Notwithstanding this concession, the respondent opposed the application on the grounds that there is unacceptable risk that the applicant would commit an offence whilst on bail and would fail to surrender in answer to the conditions of bail.
In support of this contention, the respondent relied on fact that the applicant has expressly stated that he does not believe that the SORA is applicable to him, and noted the number of alleged offences of noncompliance for which he is currently on remand.
He also refuses to identify himself to police or open the door when they attend at his home and states that police are trespassing on his property. In addition, the respondent advises that on one occasion in June 2016, when police attended the applicant’s brother’s home to execute a warrant to arrest, his brother initially refused entry and stated that the applicant was not home. The applicant subsequently located barricaded in a bedroom.
While the respondent acknowledges that the applicant has not been in contact with any children since his release on parole, it is submitted that the nature of his failures to comply with reporting conditions under the SORA are still persistent and serious, noting that s 1 of the SORA requires sex offenders to keep police informed of their whereabouts and other personal details to protect the public by reducing the likelihood sex offenders will reoffend, and facilitate the investigation and prosecution of any offences that they may commit.
Analysis
The respondent concedes it is open to the Court to conclude that there are exceptional circumstances. That was an appropriate concession. I am satisfied that exceptional circumstances have been established given the length of time the applicant has already served in custody, together with the relatively less serious nature of the offending.
In relation to the unacceptable risk, the case of Re Dhillon thoroughly canvasses the judicial analysis of applying the unacceptable risk test to events that may or may not occur. In that case, Maxwell P considered an application for bail of an offender with an intellectual disability who was charged with, among other things, numerous bail offences and contraventions of a Family Violence intervention order. Similar to the present application, the respondent in Re Dhillon conceded that exceptional circumstances existed, but opposed bail on the basis that the applicant was an unacceptable risk of committing an offence or offences whilst on bail.
In considering the risk, his Honour referred to the applicant's history and agreed that she was undoubtedly at risk of further offending. Notwithstanding this, his Honour found that the applicant's risk of committing an offence was not so unacceptable that bail should be refused. In reaching that conclusion, his Honour referred to the following statement by Fox J in Burton v The Queen (1974) 3 ACTR 77:
It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime whilst he is on bail. It should not readily be assumed that he might commit an offence or further offence. If he does, it can be dealt with by the criminal law. There are however situations in which consequences of any crime he commenced whilst on bail may be so serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration.[8]
[8](1974) 3 ACTR 77, 78.
His Honour went on to refer to Re Kyle Magee [2009] VSC 384 (‘Re Magee’) to which Ms Wolan also referred. In the course of his ruling in Re Magee, J Forrest J remarked:
Whilst it is true that there appears to be a real risk of reoffending, and by that I mean a risk which is neither far-fetched nor fanciful, whatever conditions are imposed, that risk has to be balanced against the following matters.
Firstly, the prospective offence of which there may be a risk is particularly low on the scale of criminal activity. That is not to say for one moment that it is to be condoned, quite the contrary …
Finally, the criminal law process will deal with any such re-offending …
A citizen should not be detained arbitrarily because there is a real risk of him committing a further offence of a relatively minor nature; one that the criminal law will punish if committed.[9]
[9][2009] VSC 384 [18]-[24].
In this way, Maxwell P’s decision drew on well-established principles to find that, in effect, even where a moderately high risk of relatively modest offending existed, this did not necessarily amount to an ‘unacceptable risk’ for the purposes of the Act. This principle is set out in the matter of Hall:
The notion of unacceptable risk as it applies to bail does not concern merely any risk of reoffending. Rather, it is a question of whether such risk as there might be is unacceptable. The law recognises situations in which a comparatively low level of risk of some very serious crime might amount to the relevant level of unacceptable risk to require a refusal of bail. But, equally, a high risk of the occurrence of something comparatively minor might not amount to an unacceptable risk, because it is a risk that the community will tolerate.[10]
[10]Hall [2018] VSC 533 [25].
Conclusion
As I have already indicated, in all of the circumstances I am persuaded that exceptional circumstances are well and truly established.
Although there may be a risk that the applicant may reoffend whilst on bail, I am of the view that the risk can be made acceptable by the imposition of conditions. I propose to release the applicant of his own undertaking with a number of conditions:
1. The applicant is to appear at the Frankston Magistrate’s Court on 8 November 2019, and thereafter as directed by that Court; and
2. The applicant is to report to the officer-in-charge of the Frankston Police Station every Wednesday between the hours of 9 am and 5 pm; and
3. The applicant is to comply with all obligations that are imposed on him under the Sex Offender Registry Act 2004 (Vic).
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