Re Gentile (No 2)
[2021] VSC 781
•26 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0304
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by DANIEL GENTILE |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 November 2021 |
DATE OF JUDGMENT: | 26 November 2021 |
CASE MAY BE CITED AS: | Re Gentile (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 781 |
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CRIMINAL LAW – Bail – Applicant charged with false imprisonment, persistent contravention of intervention order, contravene intervention order in several ways, threat to kill, threat to inflict serious injury, intentionally cause injury, commit an indictable offence whilst on bail and contravention of a conduct condition of bail – Applicant previously refused bail – Applicant argues new facts or circumstances - Whether exceptional circumstances exist justifying grant of bail – Whether an unacceptable risk of endangering the safety or welfare of any person or committing an offence while on bail – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA, 18 and 18AA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H Baxter | Office of Public Prosecutions |
| For the Accused | Mr B Newton | Adrian Dessi Legal |
HER HONOUR:
By application dated 3 November 2021, the applicant seeks a grant of bail in relation to 25 charges.
The applicant was previously refused bail in respect of these charges on 6 August 2021.[1] In that decision I found that the applicant had failed to demonstrate exceptional circumstances that justified the grant of bail and expressed the opinion that even if my view as to the existence of exceptional circumstances had been different, I would have refused bail on the basis that the applicant posed an unacceptable risk of endangering the safety and welfare of Ms Powell (his ex-partner) and committing an offence while on bail.
[1]Re Gentile [2021] VSC 467 ( “Gentile’ or ‘previous bail decision’).
New facts or circumstances
Section 18(1) of the Bail Act 1977 (‘Act’) permits an accused who has been refused bail and is in custody pending the hearing or trial of a charge to make a further application for bail. Section 18AA(1)(a) of the Act requires such an accused to satisfy the court that new facts or circumstances have arisen since the refusal of bail before the court may hear the application.
In this matter the applicant relies upon two ‘new facts or circumstances’. First, the refusal of an application to have 22 of the charges heard and determined summarily in the Magistrates’ Court. Second, the applicant’s acceptance into a 90-day residential treatment program at the Habitat Therapeutics Private Hospital.
The respondent, appropriately, accepts both matters as ‘new facts or circumstances’.
It follows that s 18AA(1)(a) of the Act is satisfied.[2]
[2]Accordingly, I need not determine whether new facts or circumstances must be demonstrated before a further application for bail can be made in this Court given s 18AA(2) of the Act. Divergent views have been expressed on this issue. See Re Foxwell (No 2) [2014] VSC 145 [2] (John Dixon J); Re Abdulrahim [2017] VSC 411 [33]-[34] (Weinberg AP); Re Al-Jinavo [2017] VSC 413 [5] (Beale J); Re Mongan (No 2) [2019] VSC 119 [4]-[8] (Tinney J); DPP v Roberts (Ruling No 2) [2021] VSC 559R (Kaye JA).
The charges, background and alleged offending
The charges, background and alleged offending were summarised in the previous bail decision.[3] It is sufficient to refer to but not repeat that summary. The primary victim of the alleged offending is Ms Powell. Three charges preferred by the informant Ravinay Singh (Singh matters) are now listed for plea hearing in the Magistrates’ Court on 6 December 2021. The remaining charges, preferred by the informant Alex Metaxas-Belt (Metaxas-Belt matters) are now listed for a committal case conference and committal mention on the same date.
[3]Gentile, [2]-[25].
Applicant’s personal circumstances, prior criminal history and family violence allegations
The applicant is 32 years of age and was raised in stable home environment. He reports a history of anxiety from the age of eight which, as he grew older, he self-medicated with substance use. He has a solid 15 year work history as an apprentice and then as a fully qualified carpenter. In 2020, as a result of the pandemic, the applicant struggled to generate work. At about the same time, his relationship with Ms Powell, with whom he shares a two year old child, ‘IP’, ended. The applicant reports that the combination of these events, and in particular the loss of the routine and structure provided by his work, led to increased anxiety and, in turn, increased drug use.
The applicant’s criminal history is limited to a single disposition resulting from convictions of criminal damage, trespass and contravening a family violence intervention order (‘FVIO’) (two counts). The victim in that matter was Ms Powell. IP was present. The circumstances are summarised in the previous bail decision.[4] The applicant received a 15 month community corrections order (‘CCO’) to perform 150 hours of community work. That CCO has since lapsed. It was breached by the guilty plea to the Singh matters and is currently listed before the Magistrates’ Court on 3 March 2022.
[4]Gentile, [26].
Although the allegations did not result in criminal charges, Victoria Police received three reports of family violence perpetrated by the applicant against Ms Powell.
On 1 September 2018 Ms Powell, who was then 14 weeks pregnant, contacted police to report a five year history of family violence in her relationship with the applicant and which had escalated during her pregnancy. Ms Powell indicated that the applicant had been both verbally and physically aggressive. On two occasions he punched her to the head and body to the point of unconsciousness. Since she had become pregnant he had made regular threats to kill her and burn her mother’s house down.
On 20 June 2020 Ms Powell stated that following a verbal dispute between them, the applicant threw IP aggressively into a child car seat. He later telephoned her to say that he was going to kill her, which was necessary for him to have a happy life.
On 30 June 2020 Ms Powell reported that the applicant, while at his parents’ home grabbed his sister by the throat with both hands and forced her backwards for several metres before locking her out of the house.
Neither during the hearing that preceded the previous bail decision nor during the hearing of this application did the applicant submit that these reports were untruthful or inaccurate.
The applicant is currently the respondent to two full no-contact interim FVIOs. The first protects Ms Powell and IP[5] and the second protects his sister.
[5]The FVIO does allow the respondent to do anything permitted by a Family Law Act order, child protection order or Department of Health and Human Services approved child arrangement and to contact Ms Powell through a lawyer or mediator, as well as certain other like exceptions.
Legal Considerations
The application for bail cannot succeed unless the applicant demonstrates the existence of exceptional circumstances that justify the grant of bail.[6] In determining whether exceptional circumstances have been so demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[6]The Act, ss 4A(1A)-(2).
Exceptional circumstances may be demonstrated by a single circumstance or combination of circumstances united to produce a situation that is other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If satisfied that exceptional circumstances have been demonstrated by the applicant, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is unacceptable.[7] In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[8]
[7]The Act, s 4D(1)(a).
[8]The Act, s 4E(3).
The applicant has been charged with family violence offences. Accordingly, the Court must consider whether, if he were released on bail, there would be a risk that the applicant would commit family violence and whether that risk could be mitigated by the imposition of a condition or the making of a FVIO.[9]
[9]The Act, s 5AAAA(2).
And, the Court is to apply and interpret the Act having regard to the guiding principles delineated in s 1B(1).
Applicant’s materials and contentions
The application for bail is supported by an affidavit of the applicant’s solicitor, Adrian Dessi affirmed on 3 November, which addresses the statutory ‘surrounding circumstances’ of the application. Particular circumstances were emphasised in the oral submissions of the applicant’s counsel.
The first was the availability of the residential rehabilitation program at Habitat Therapeutics. Various documents concerning this prospect are annexed to Mr Dessi’s affidavit, including the 26 October 2021 assessment report of Mr James Tatlock, the Director of Habitat Therapeutics. Mr Tatlock also gave viva voce evidence on the application.
During the assessment with Mr Tatlock, the applicant stated that his mental health was ‘the best it has been for years’. He said incarceration has led him to be drug free and he could now see how ‘ice’ made him mentally unstable. Mr Tatlock questioned the applicant about his anger and self-control. The applicant said that he was ‘not violent’ and could ‘manage his emotions’. When Mr Tatlock challenged that statement in light of the charges for which he seeks bail, the applicant stated that ‘whilst using the high quantities of ice and not sleeping for 4-5 days his behaviours were out of character’. In oral evidence Mr Tatlock was asked about the applicant’s attitudes concerning violence against women. He repeated the applicant’s answers from the assessment report.
Mr Tatlock’s evidence also outlined the operations at Habitat Therapeutics. He said it was a private hospital in Geelong with 25 beds. He explained its geographical layout, staffing, security arrangements and ability to liaise with outside practitioners and services. The facility has 80% to 90% surveillance camera coverage and is locked from about 10.30pm or 11pm, but anyone inside the facility could leave if they wished to. Residents are not allowed mobile telephones and all phone calls are monitored. Drug and alcohol testing is administered. Mr Tatlock said that the facility is very strict and forensic clients are held to a high level of behaviour. He said that if the applicant was bailed to reside at the facility and left, it would be considered a major breach and the informant would be notified immediately. Any contravention of its ‘cardinal rules’, being no violence and no drugs, would result in expulsion from the facility. Mr Tatlock gave an undertaking that he would contact the informant immediately upon becoming aware that the applicant was in breach of his bail conditions.
Habitat Therapeutics operates on a community model. Mr Tatlock outlined the program and the facility’s ability to tailor treatment to an individual. He said that outside services with respect to ‘anger management’ could be engaged for the applicant. In cross-examination Mr Tatlock agreed that the facility had never previously tailored a ‘family violence’ program for a resident.
Other evidence tendered showed that the applicant’s stay at Habitat Therapeutics would be funded by his parents.
The second matter of emphasis was the recalibration in the assessment of delay consequent upon the refusal of summary jurisdiction for the Metaxas-Belt matters.
As noted in the previous bail decision, those matters were then next listed for contest mention in the Magistrates’ Court on 7 September 2021. The Singh matters and the contravention of CCO charge were also listed on that date. Limitations of time allocated to the WebEx link for those matters meant that the hearing could not be completed and the matters were adjourned to 13 September 2021. On that date the learned magistrate refused an application for summary jurisdiction with respect to the Metaxas-Belt matters because he was of the view that the available sentencing powers for indictable matters heard summarily were insufficient to address the seriousness of the charges. The matters were adjourned for a filing hearing on 15 September 2021. On that date the matter was adjourned for a committal case conference and committal mention on 6 December 2021.
The affidavit of Mr Dessi states that the Magistrates’ Court is currently listing single day committal hearings in May 2022 and that the Metaxas-Belt matters are likely to be listed in June 2022. The affidavit further states that given the backlog of criminal trials in the County Court consequent upon the pandemic, it is unlikely that a trial of the Metaxas-Belt matters would be listed before 2024.
At the hearing of the application, the applicant’s counsel conceded that I should approach the issue of delay on the basis that it is more likely than not that the Metaxas-Belt matters will resolve in a plea. Given that some of the charges are obviously alternative and noting some of the evidence canvassed in the previous bail decision, such as the medical evidence concerning the fracture to Ms Powell’s orbital socket, Facebook Messenger records and analysis of the applicant’s mobile telephone which contained, amongst other things, the video of Ms Powell crying and cowering while the applicant tells her to beg for someone to come and help and says ‘I’m bashing the fuck out of you, you weak fucking cunt’,[10] I am of the view that that is a very safe assumption. I note that the applicant disputes certain charges and certain factual aspects of others. However, his counsel submitted that the matters were nonetheless capable of resolution and that outcome was being actively pursued.
[10]Gentile, [11]-[25].
While a date for a plea hearing in the County Court will be attained earlier than a date for a trial, the applicant’s counsel maintained the submission that there is a ‘likely and real’ prospect that should the applicant not be admitted to bail, then he would remain in custody for a longer period than any sentence he may have to serve.
The other matters relied on to establish exceptional circumstances remain largely unchanged from the previous bail application.[11] One further matter is the evidence of Ms Maree Anderson, the Vocational Programs Facilitator at Marngoneet Correctional Centre that the applicant has completed eight modules through ‘ATLAS’, which is a program aimed at planning sustainable goals post-release, promoting healthy and respectful relationships, addressing overall wellbeing and making prosocial choices. Ms Anderson is of the view that the applicant has developed valuable insight into his offending. At the time of the previous application the applicant had completed seven modules. Since completing the eighth, the applicant has obtained employment through ATLAS, assisting facilitators, working as a peer support worker and helping participants who have low literacy skills for whom English is a second language. Ms Anderson described him as being respectful and polite and stated that he was also well-respected by participants.
[11]Gentile, [47]-[52].
Ultimately the applicant submitted that the matters previously relied upon, in combination with the new additional matters, combine to demonstrate exceptional circumstances.
The applicant relied upon the same combined material to submit that the respondent had failed to demonstrate that he is an unacceptable risk of any of the s 4E(1)(a) behaviours. A suite of bail conditions to mitigate his risk to an acceptable level was proposed.
It should be noted that the applicant called Mrs Maria Gentile, his grandmother, on the hearing of the application. It is proposed that upon completing the rehabilitation program at Habitat Therapeutics, the applicant reside with her and his grandfather. Her home was also proposed as a bail address during the previous bail hearing, but was unaccompanied by any evidence that his grandmother was aware of the extent or nature of the family violence allegations, the applicant’s drug history or the seriousness of the Metaxas-Belt charges.
Mrs Gentile stated that she was now aware of the allegations. She was aware of the two extant FVIOs. She said she was unaware of the applicant’s criminal history. While she did not know what a person affected by ice looked like, Mrs Gentile said that if the applicant was not behaving well she would call the police. In cross examination, Mrs Gentile accepted that she would not be able to constantly monitor the applicant’s movements and supervise his mobile phone use, and that she would have to ‘trust him‘ to not do the wrong thing in this regard.
Respondent’s materials and contentions
The respondent relied upon an affidavit of Ms Laura McDonnell, a solicitor with the Office of Public Prosecutions, sworn 15 November 2021. That affidavit refers to and adopts the contents of the two affidavits of Ms Mary Sevdalis relevant to the previous bail condition.
The respondent submitted that the rehabilitation offered at Habitat Therapeutics does not adequately address the family violence issues with which the applicant presents. In this regard, the respondent referred to a letter of a senior child protection officer dated 21 July 2021 which noted protective concerns for IP as a result of the applicant’s ‘propensity to perpetrate physical, emotional, sexual and psychological family violence as well as assert extreme controlling and coercive behaviours against the mother.[12] The respondent further submitted that while the applicant might have insight into his behaviour as evident from a CISP report dated 29 July 2021[13] and the evidence of Mr Tatlock, such insight was in the very early stages.
[12]See Gentile, [57]-[59].
[13]See Gentile, [54].
As to delay, the respondent submitted that even on a plea to some of the Metaxas-Belt charges, the applicant is likely to receive a term of imprisonment with a non-parole period. Counsel for the respondent noted the significant aggravating features of the offending alleged, namely the multiple breaches of a FVIO, breach of bail and a relevant prior conviction as well as its innate seriousness. The respondent submitted that it is not likely that the applicant will spend more time on remand than any sentence likely to be imposed following either a plea or trial.
Ultimately the respondent submitted that none of the circumstances relied upon by the applicant combined to demonstrate exceptional circumstances.
The respondent further submitted that the applicant poses an unacceptable risk of all of the s 4E(1)(a) behaviours and that no condition of bail would sufficiently mitigate these risks.
Consideration
I am of the view that the circumstances relied upon by the applicant do combine to produce exceptional circumstances.
While I do not accept that the applicant’s time on remand is likely to exceed any sentence imposed, the availability of the rehabilitation program at Habitat Therapeutics is of significance.
Despite the respondent’s criticism of the limitations of the proposed treatment at that facility, I note that in submissions prior to the previous bail decision, to which the respondent refers and relies upon, it was submitted that the applicant ‘needs to address his serious drug abuse and mental health issues via residential rehabilitation’.[14] I accept the evidence of Mr Tatlock as to the strict regime of the program, the consequences of breaching its rules and its ability to tailor the delivery of counselling to a resident’s individual circumstances. It is undoubtedly the case that there is a connection between the applicant’s drug abuse and his violence. His acceptance into the Habitat Therapeutics program goes some way to addressing one of the core issues of his offending.
[14]Submissions on behalf of the Respondent dated 29 July 2021, [53] and [57].
That in combination with the other matters relied upon, particularly the applicant’s productive use of his time in custody through ATLAS, his family and personal supports and the availability of stable accommodation and employment after completion of rehabilitation, unite to demonstrate exceptional circumstances.
However, I am of the view that the applicant is an unacceptable risk of endangering the safety and welfare of Ms Powell and committing an offence whilst on bail.
Considering s 5AAAA of the Act, the existence of a FVIO and bail conditions which required compliance with it have been previously insufficient to protect Ms Powell and IP and to prevent the applicant from engaging in offending behaviour. That behaviour escalated over a short period. The allegations of that behaviour are extremely serious.
The applicant told Mr Tatlock that he is ‘not violent’ and was only previously violent in the context of drug abuse. While, as noted, I accept that there is a connection between the applicant’s drug abuse and offending behaviour, the evidence of family violence is longstanding and cannot be explained simply by a drug binge in 2020 consequent upon the end of his relationship with Ms Powell and his loss of routine due to lack of work. While rehabilitative work with respect to the applicant’s drug issues and ‘anger management’ is clearly warranted, there also needs to be considerable work done by and with the applicant as to his attitudes and assumptions about acceptable behaviour towards women (and its effect on his child). In this regard I note that the applicant’s behaviour fuelled by anger and /or drug intoxication is not random; it is directed only towards female family members.
I am of the view that the proposed 90 day rehabilitation at Habitat Therapeutics, which would be the applicant’s first time in rehabilitation, followed by residence at his grandmother’s house does not sufficiently mitigate the risk he poses in this regard. The rehabilitation program would present him with great challenges. Even if he managed to keep to its terms and not leave the Habitat Therapeutics facility, I am not satisfied that the subsequent residence with his grandmother is sufficiently protective.
I accept that Mrs Gentile is well meaning and would, if she became aware that the applicant were using illicit drugs, call the police. However, her evidence did not satisfy me that she truly understood the seriousness of the family violence allegations against the applicant and that his behaviour towards Ms Powell (and IP) – including mere contact[15] – was a matter of concern.
[15]Other than in the very limited, permitted circumstances.
Further there is no evidence before me that there has been any change in the applicant’s sense of entitlement to take custody of his child disregarding protection orders, that child’s emotional and psychological comfort and Ms Powell’s concerns in that regard.
Conclusion
The application for bail is refused.
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