Re Garou
[2018] VSC 418
•4 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0082
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an Application for Bail by George GAROU | |
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JUDGE: | Champion J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2018 & 1 May 2018 | |
DATE OF JUDGMENT: | 4 May 2018 | |
CASE MAY BE CITED AS: | Re Garou | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 418 | |
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CRIMINAL LAW – Application for bail – Charges of theft, burglary, aggravated burglary, theft of a motor vehicle, criminal damage, handling stolen goods, dealing with property suspected of being proceeds of crime, possessing cartridge ammunition, prohibited person possessing a firearm, possessing cannabis, using amphetamines, making a false report to police, unlicensed driving, failing to stop vehicle on request, obtaining property by deception, failing to answer bail, committing an indictable offence whilst on bail and contravening a conduct condition of bail – Applicant required to show cause – Whether conditions ameliorate unacceptable risk – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W Toohey | Marcevski Lawyers |
| For the Respondent | Mr P Murphy | Victoria Police |
HIS HONOUR:
Introduction
On 2 January 2018, the applicant was arrested and charged by police with three separate sets of matters relating to events alleged to have occurred between 27 July and 28 December 2017.
On 15 February 2018, the applicant was granted bail in relation to these matters, subject to certain conduct conditions, including that the applicant reside at Bayside Private Drug and Alcohol Rehabilitation (‘Bayside Rehabilitation’), and not leave that facility unless in the company of staff.
On 27 February 2018, following notification from the applicant’s former solicitor that the applicant was in breach of these conditions, the applicant was arrested and further charged with four counts of contravening a conduct condition of bail.
The applicant has been in custody since 27 February 2018. On 28 February 2018, the applicant applied to the Broadmeadows Magistrates’ Court for bail, but that application was refused.
By application dated 3 April 2018, the applicant applies to this Court for a grant of bail. On 19 April 2018, the applicant’s bail was revoked in relation to two outstanding matters (informant Gent). The applicant remains on bail for the informant Hammerstein matter.
The alleged offending
In addition to the charges of contravening a conduct condition of bail, the applicant has three other sets of charges presently outstanding against him. They may be summarised chronologically as follows.
Informant Hammerstein
On 27 July 2017, police observed the applicant and an unidentified male approaching an ‘Australia Post’ van in Meadow Heights. It is alleged that the applicant and co-accused smashed the front passenger window of the van and removed parcels, discarding unwanted items in nearby parkland. Photographs taken by police identify the applicant as one of the offenders from this incident.
A search warrant executed at the applicant’s premises in Meadow Heights on 28 July 2017 located, inter alia, three ID cards, a ‘glass breaker’, five rounds of ammunition and 1.4 grams of cannabis. Further investigations revealed that the identification had been stolen from vehicles in Campbellfield, Somerton and Epping between 22 and 28 July 2017, and that in each of these instances the vehicles had been broken into via smashed windows.
The applicant was charged with theft, handling stolen goods (three counts), possessing cartridge ammunition, possessing cannabis and committing an indictable offence whilst on bail. The applicant was released on bail to appear at the Broadmeadows Magistrates’ Court on 23 August 2017. The applicant remains on bail in relation to this matter.
This matter is currently listed for plea hearing on 30 August 2018.
Informant Gent (1)
Incident one
On 19 September 2017, the applicant reported to the Broadmeadows Police Station that a yellow motorcycle had been stolen from Lightwood Crescent, Meadow Heights. On 4 October 2017, the applicant reported that the same motorcycle had been recovered in Coolaroo, however, did not comply with police’s request for the motorcycle to be brought in. The prosecution alleges that the same motorcycle was involved in incidents two, three and four as set out below, and that the applicant made a false report to police to avoid any connection.
Incident two
The prosecution case is that between 1.30pm and 2.30pm on 26 September 2017, the applicant parked a yellow motorcycle in the carport of a premises in Glenroy, before allegedly forcing entry into the premises, rummaging through various bedrooms, and stealing underwear, jewellery and mobile phones valued at approximately $4,000. The incident was partly captured on CCTV.
Incident three
At approximately 4.35pm on 1 October 2017, an offender allegedly forced entry into the bedroom of a premises in Broadmeadows, where the victim, Natalia Gonzalez, was sleeping. The victim awoke and asked what the intruder was doing, who responded ‘just money, just money’, as he ran out of the house and jumped on the back of a yellow motorcycle which was ridden by another person. The prosecution alleges that the applicant was the rider of the motorcycle. The victim took photos of the offenders as they drove away.
Incident four
At approximately 4.42pm on 1 October 2017, the applicant and a co-offender who has not yet been identified, allegedly arrived at a premises in Broadmeadows on a yellow motorcycle, before forcing entry into the premises. They left without stealing any items after the house alarm was activated. The incident was partly captured on CCTV.
Incident five
Between 2.00pm and 10.30pm on 1 October 2017, offenders allegedly broke into a premises in Meadow Heights, rummaging through various rooms, before stealing a jewellery box containing various jewellery, and car keys to a black Holden vehicle. Between approximately 10.00pm and 10.30pm on 2 October 2017, the black Holden vehicle was stolen. On 3 October 2017, this vehicle was found abandoned in Doreen. On 12 October 2017, the jewellery box and a handbag were located in a bin in Meadows Heights and handed in to police.
On 5 October 2017, a search warrant of the applicant’s premises in Meadow Heights located a grey jumper alleged to have been worn by the applicant during the second, third and fourth incidents.
A further search warrant executed on the applicant’s premises on 1 November 2017 located, inter alia, ammunition, a sawn off shotgun, a double barrel from a shotgun, a shotgun part and a motorcycle helmet.
A search of the applicant’s ‘bum-bag’ located three rounds of ammunition, two master-keys and a screwdriver. Further, the applicant had in his possession clothing matching the description of clothing worn by the offender during the second, third and fourth incidents.
The applicant was charged with being a prohibited person possessing a firearm, possessing cartridge ammunition (two counts), possessing cannabis, failing to answer bail, burglary (two counts), theft, aggravated burglary, theft of a motor vehicle (two counts), handling stolen goods, criminal damage and making a false report to police.
The applicant made full admissions to the offending. The applicant was released on bail to appear at Broadmeadows Magistrates’ Court on 8 November 2017.
Despite making admissions to the offending, the applicant now denies all charges. The matter is currently listed for a contested hearing on 30 and 31 August 2018 at the Broadmeadows Magistrates’ Court. On 19 April 2018, on the application of the prosecution, the applicant’s bail was revoked in relation to this matter.
Informant Gent (2)
On 8 November 2017, the applicant’s bail was extended to 6 December 2017 in relation to the informants Gent (1) and Hammerstein matters. On 6 December 2017, the applicant failed to appear at Broadmeadows Magistrates’ Court in answer to bail. Between 23 November and 12 December 2017, the applicant failed to report on bail seven times. On 6 December 2017, a warrant was issued for the applicant’s arrest.
Incident one
At approximately 9.20am on 12 December 2017, police observed the applicant and an unknown offender riding dirt-bikes without registration plates. The applicant slowed down and spoke to police, but subsequently drove off. At approximately 10.00pm that evening, police attended the applicant’s home in Meadow Heights and observed the applicant in the garage. Upon sighting police, the applicant immediately closed the garage door and decamped on foot.
Incident two
Between 1.00pm and 5.35pm on 21 December 2017, an Apple MacBook laptop, iPad and bank card were stolen from a premises in Craigieburn. On 23 December 2017, the victim, Gurharpraitpal Summan, reported that an unauthorised transaction had taken place on the stolen bank card at ‘Bushfield Milk Bar’ in Coolaroo. The applicant was identified by CCTV footage as the person authorising this transaction. The victim reported other unauthorised transactions on the stolen bank card, including at Meadow Heights Shopping Centre (‘MHSC’). CCTV footage obtained from MHSC depicts the applicant with two other persons smoking what is alleged to be methylamphetamine.
On 30 December 2017, the owner of the Bushfield Milk Bar notified police that the applicant had returned. CCTV footage from the milk-bar depicts the applicant arriving in a vehicle identified as having false number plates and as one connected with various burglaries in the area.
Incident three
The prosecution alleges that at approximately 1.45pm on 28 December 2017, the applicant broke into a premises in Pascoe Vale, rummaging through various rooms, and stealing a watch and a variety of tools, and gaming consoles. The estimated value of items stolen is $6,000.
A search warrant executed at the applicant’s premises on 2 January 2018 located, inter alia, various watches, mobile phones and electronic devices, a blue motorbike alleged to have been used during the first incident, and clothing alleged to have been worn during the second incident.
The applicant was arrested in relation to the two outstanding warrants and charged with failing to answer bail, contravening a conduct condition of bail (six counts), unlicensed driving (two counts), failing to stop vehicle on request, burglary (three counts), theft (three counts), obtaining property by deception, using amphetamine, dealing with property suspected of being proceeds of crime and handling stolen goods. The applicant provided a ‘no comment’ interview. The applicant was remanded to appear at the Broadmeadows Magistrates’ Court on 23 January 2018.
On 15 February 2018, the applicant was granted bail in respect of all three matters (Informants Gent 1 and 2 and Hammerstein).
The applicant admits charges one to seven (failure to answer bail and contravening a conduct condition of bail), and denies the remaining charges. The matter is presently listed for a contested hearing on 30 and 31 August 2018 at the Broadmeadows Magistrates’ Court. On 19 April 2018, the applicant’s bail was revoked in relation to this matter.
Informant Gent (3)
On 24 February 2018, the applicant was asked to leave Bayside Rehabilitation following altercations with other residents, and to return by 26 February 2018. On 25 February 2018, the applicant advised Bayside Rehabilitation that he would not be returning to the facility. On 27 February 2018, the applicant’s former solicitor notified the informant that the applicant was no longer residing at the rehabilitation centre, contrary to his conditions of bail. On 27 February 2018, the applicant was arrested and remanded on four charges of contravening a conduct condition of bail.
The applicant denies all charges and the matter is next listed for a contested hearing on 30 and 31 August 2018 at the Broadmeadows Magistrates’ Court.
The applicant
The applicant is 29 years old.[1]
[1]There is conflicting information as to the applicant’s correct date of birth, see para [1] of the affidavit in opposition.
Between 2004 and 2015, the applicant was involved in a number of family violence incidents at his family home. The applicant left school at the age of 13 and completed some alternative education through Broadmeadows TAFE, before undertaking one year of a cabinet maker apprenticeship and one year employment as a caravan builder.
The applicant ceased employment as a result of his drug use, having commenced using cannabis at the age of 14 and methamphetamine at the age of 16.
The applicant has a significant criminal history dating back to 2005. He has prior convictions for offences of dishonesty, weapons, drugs and traffic violations. Relevantly, his prior history also includes failing to answer bail (two counts), contravening a CCO (three counts), and failing to comply with a CBO. Additionally, since October 2014, the applicant has had 34 warrants issued against him as a result of failing to appear on summons or bail.
Applicable legislation
Pursuant to the following sections of the Bail Act 1977 (the ‘Act’), the applicant is in a ‘show cause situation’:
· 4(4)(a) – having been charged with an indictable offence alleged to have been committed whilst the applicant is at large awaiting trial for another indictable offence;
· 4(4)(bc) – having been charged with an offence of aggravated burglary; and
· 4(4)(d) and 30A - having been charged with contravening conduct conditions of bail, an offence against the Act.
The applicant’s contentions
In an affidavit sworn on 2 April 2018, the applicant’s solicitor supported the grant of bail for the applicant. It is submitted that the following matters were established by evidence and, in combination show cause why the applicant should be granted bail:
1. Ties to the jurisdiction – not particularised.
2. Suitable accommodation – the applicant is able to reside with his parents at 1/2 Branco Court, Meadow Heights, should bail be granted. The applicant had lived there since the age of two.
3. Family support – the applicant has strong family support. The applicant’s sister is available to give evidence at the hearing of the application.
4. Availability of employment – the applicant has full-time employment available to him with ‘Victorian Masters Construction’, as an apprentice plasterer, should bail be granted.
5. Court Integrated Services Program (‘CISP’) assessment – the applicant seeks to obtain an assessment through CISP, with a view to receive treatment and counselling.
6. Strength of the prosecution case – not particularised.
7. Likely delay – due to the time the matter will take to reach a contested hearing.
The prosecution’s contentions
The prosecution opposes bail and submits that there is an unacceptable risk that the applicant, if released on bail, would fail to surrender himself into custody in answer to bail, commit an offence whilst on bail and endanger the safety and welfare of the public.
The prosecution has expressed particular concerns with the applicant’s proposed accommodation with his family in Meadow Heights, noting that he has a history of family violence against his parents and siblings. Between 2004 and 2015, police attended this home on 18 occasions to investigate reports of family violence where the applicant was identified as the perpetrator. Between 2007 and 2015, the Broadmeadows Magistrates’ Court issued five final intervention orders against the applicant, listing various family members of the applicant as affected family members (AFMs). In November 2014, the Broadmeadows Magistrates’ Court issued an intervention order against the applicant’s father, listing the applicant as the AFM. There are currently no active intervention orders in place relating to the applicant.
The prosecution has also expressed concerns in relation to the likelihood of the applicant’s family cooperating with police, should bail be granted. It was noted the applicant’s family members have previously hidden the applicant, lied to police about his whereabouts and demonstrated hostility towards police who have been looking for him. The prosecution submits that this type of conduct raises concerns as to the likelihood of the applicant’s family reporting any breach, and is indicative of an environment that condones offending behaviour.
Further, the prosecution submits that a large amount of the applicant’s recent offending occurred while he was living at the proposed premises. On the applicant’s own admission, the garage of the premises has been used as a place for the applicant and his associates to use drugs.
In relation to the applicant’s submission regarding the availability of CISP services, the prosecution submits that the applicant has had many opportunities to address his drug addiction, but has failed to engage with treatment on each of these occasions. Particularly, the applicant failed to comply with treatment conditions as a part of CCOs in 2014 and 2017, and under his most recent conditions of bail.
The prosecution submits that there are no bail conditions that could be put in place that would alleviate the applicant’s risk of failing to answer bail, committing an offence whilst on bail and endangering the safety and welfare of the public.
Discussion
It is accepted by both parties that the applicant must show cause to be granted bail. This is the case for a number of reasons, including the allegation that he committed an indictable offence whilst on bail for another indictable offence; having been charged with an aggravated burglary; and, having contravened conduct conditions of bail, on a number of occasions.
There are a series of cases mounted against the applicant, some of which might be regarded as more serious than others, and some stronger than others. Broadly, the totality of the outstanding allegations made relate to numerous instances of offending conduct occurring between late July 2017 and late February 2018. The significant majority of the alleged offending occurred in the later part of 2017.
If proven, the allegations against the applicant would amount to conduct that is persistent, and sometimes flagrant in its nature. The alleged conduct appears to show little regard for the property or welfare of members of the wider community, and involves disobeying the lawful orders of police, as well as driving offences. Of significant concern are the allegations that the applicant, as a prohibited person, possessed a sawn off shotgun, as well as ammunition. Similarly concerning are the allegations of burglaries committed in company with others, including an aggravated burglary where a female was present in her home, apparently alone. In that instance, the victim was woken and confronted by a co-accused. The co-accused entered her bedroom, then left on a motorcycle allegedly ridden by the applicant. These are serious offences alleged against the applicant.
Over the period of alleged offending, the applicant’s conduct appears irrepressible, and involves multiple allegations of breaching bail and contravening bail conditions. He appears to have shown no regard or respect for court orders designed for his ultimate benefit, that have allowed him to be on bail.
Apart from the current allegations before the court, the applicant has a significant and relevant criminal history. That history, combined with the regularity of the alleged offending over the relevant period, provide little confidence that his offending will not continue.
The applicant’s history not only shows disregard for court orders that have provided the benefit of community correction outcomes, but further shows that he was in breach of a CCO when he is alleged to have committed the majority of the offences presently before the court. The applicant was subject to a CCO for a period of 18 months, which was granted on 1 August 2017. He then re-appeared at the Magistrates Court and received a further 12 months CCO on 15 September 2017, with conditions designed to effect treatment and rehabilitation for, amongst other things, a drug problem. Offences that are alleged to have been committed after 15 September 2017 appear to have been committed during the period of a CCO designed to impose punishment, but also with strong rehabilitative components. On the chronology of events, it appears to me that the CCO to which the applicant was subject was having little, or no effect.
The offences alleged to have occurred whilst the applicant was on the CCO include failure to answer bail; multiple instances of contravening conditions of bail; possession of a firearm and ammunition; an instance of aggravated burglary, as well as a number of burglaries and thefts; theft of a motor vehicle; and further offences.
A considerable part of this application was taken up with examining the circumstances of the applicant’s departure from the Bayside Rehabilitation facility in February 2018, following which the applicant was charged with a series of offences concerned with breaching his bail conditions. The evidence before me leaves a degree of uncertainty about what those circumstances were, and accordingly, I have not approached the resolution of this application by taking an adverse view of whatever the applicant’s conduct may or may not have been in leaving the facility. The resolution of those charges is of course not a matter for me, and will be the subject of findings by a Magistrate in due course. I simply note that the applicant remains charged with a series of offences alleging the contravention of conduct conditions attaching to a grant of bail, that allowed him to reside at and receive treatment from that facility.
The court was also provided with a report from CISP relating to the applicant. The report recommended case management by the CISP team, and provided a support plan should the applicant be granted bail. I have taken this report into account. I note that according to the report, the applicant had the benefit of a previous CISP involvement in 2015, and that he completed the program.
The applicant called witnesses in support of his application. The evidence was from his sister, who explained the support the applicant has from his family, and also as to the difficulties in finding a future residential opportunity for the applicant to attend for rehabilitative treatment. I also heard from a prospective employer, Edward George, who is the husband of the applicant’s cousin. Mr George gave evidence that an employment opportunity awaited the applicant should he be granted bail. I have taken the evidence of both these witnesses into account.
Taking all things into account, the applicant has not shown cause why he should be admitted to bail. In my opinion, the question of delay is not a significant factor in this application as it appears that the applicant’s matters are listed for hearing in late August 2018. Nor have particular weaknesses in the prosecution’s cases been demonstrated that would cause me to have concern that a significant number of the charges will be dismissed.
Factors such as the availability of a stable place to live and employment are, in the circumstances of this case, not such as to persuade me that cause has been shown. Stable accommodation has been in place throughout past periods of bail, and there remain allegations that the applicant’s family have not been cooperative in their dealings with police when they have attended the family home. I make no findings about whether a lack of cooperation has been established, but I do take the allegations into account. Further, the plan for the applicant’s supervision by CISP is not sufficient in the applicant’s circumstances, to convince me he should be granted bail at this stage. Even viewed in combination, the factors put before me fail to show cause why the applicant’s continued detention is not justified.
Even if the applicant had shown cause, given the breadth of the allegations, both as to their chronology of commission and type, in the context of a series of grants of bail over the period, I am left with little confidence that any conditions applied to a grant of bail would prevent the applicant further offending whilst on bail. I am satisfied that the prosecution have established the applicant is an unacceptable risk of committing further offences if he was to be granted bail.
The evidence before me suggests that since October 2014 the applicant has had 34 warrants of apprehension issued against him for failing to appear on summons or bail. This state of affairs must also be assessed in the context of the further offending alleged against the applicant. For these reasons, I do not have any confidence that even stringent conditions could meet unacceptable risk factors.
In all the circumstances I refuse the application to grant bail.
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