Re Glover
[2021] VSC 822
•10 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0340
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by NATHAN GLOVER |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2021 |
DATE OF JUDGMENT: | 10 December 2021 |
CASE MAY BE CITED AS: | Re Glover |
MEDIUM NEUTRAL CITATION: | [2021] VSC 822 |
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CRIMINAL LAW – Bail – Schedule 2 offence, allegation of committing indictable offence while on bail for another indictable offence (4 charges) – Applicant required to show compelling reason justifying grant of bail – Whether compelling reason established – Whether unacceptable risk – Application refused – Bail Act 1977, ss 1B, 3AAA, 4AA, 4C and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Farrell | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Applicant | Mr C Grant | Emma Turnbull Lawyers |
HIS HONOUR:
The applicant is currently facing the following charges:
·intentionally damaging property, contrary to s 197(1) of the Crimes Act 1958 (charge 1);
·arson, contrary to ss 197(1) and (6) of the Crimes Act (charge 2);
·possessing a prohibited weapon, contrary to s 5AAA of the Control of Weapons Act 1990 (charge 3);
·possessing a drug of dependence (two charges, cannabis and psilocybin), contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (charges 4 and 5); and
·committing an indictable offence while on bail (four charges), contrary to s 30B of the Bail Act 1977 (charges 6 to 9).
The offences giving rise to charges 1 and 2 are alleged to have occurred on 7 October 2021. On 14 October 2021, investigators attended the applicant’s premises and executed a search warrant. The offences giving rise to charges 3 to 5 are alleged to have occurred on that day (14 October). Following the execution of the warrant, the applicant was charged and remanded in custody.
At the time of his alleged offending in October 2021, the applicant was on bail for another indictable offence.
On 29 October 2021 the applicant made an application for bail at the Melbourne Magistrates’ Court. Committing an indictable offence while on bail for another indictable offence is a Schedule 2 offence within the meaning of s 3 of the Bail Act. As a result, the applicant was required to establish that a compelling reason exists that justifies the grant of bail before bail could be granted.[1] On 5 November 2021, a magistrate refused the applicant’s application for bail.
[1]See s 4C(1A) of the Bail Act.
On 29 November 2021, the applicant filed an application for bail in this Court. It remains the position that the applicant is required to establish that a compelling reason exists that justifies the grant of bail before bail can be granted. Additionally, bail must be refused if the prosecution satisfies the Court there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any person; or commit an offence while on bail; or interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail.[2]
[2]See s 4E(1)(a) of the Bail Act.
The alleged offending
The prosecution case may be briefly summarised as follows.
In October 2020, the applicant posted a message on Facebook stating that he was ‘intending to capture the Premier … and place him under citizen’s arrest’. The applicant is also alleged to have stated that, while he had the Premier’s house address, he could not capture him because ‘it is heavily guarded’. He then asked his followers to alert him to the whereabouts and movements of the Premier so that he could capture him and put him before a ‘kangaroo court of the people’.
When questioned by police about his post, the applicant is alleged to have admitted making the post, but saying that it was done in humour and to provide entertainment to his followers. The applicant was subsequently arrested, and bailed on charges of using a telecommunications device to menace.
On 5 September 2021 a post was made by the administrator of the Telegram channel ‘HoodlumsofMelbourneSpecialOps’, promoting the channel and calling for ‘fellow Victorians’ and ‘fellow hoodlums who stand for the Anzacs’ to join their ‘special ops group’. The prosecution allege that on 6 September 2021, the applicant responded to this post, stating: ‘I’m down for special ops only if I get to burn down something’. The administrator responded: ‘Those 5g towers would make a nice fire’. The applicant responded: ‘My thinking exactly, I’ve made preparations already’.
On 7 October 2021, at approximately 2:20 am, the applicant is alleged to have used an electric scooter to attend the Telstra telecommunications mobile phone tower located at 1250 Nepean Highway. CCTV footage is alleged to show the applicant arriving at the tower; cutting a cyclone wire fence; climbing onto an air-conditioning unit; pouring a red liquid (alleged to contain a mixture of paint and petrol) onto a cabling track; discarding the bottle from which the liquid was poured; lighting a fire; and then leaving the scene.
The prosecution allege that the estimated cost of the damage caused by the fire is in excess of $1 million.
On 14 October 2021, a search warrant was executed at the applicant’s home. A number of items were seized, including an electric scooter alleged to match the description shown in the CCTV footage; clothing alleged to match the descriptions shown in the CCTV footage; a pair of wire cutters; a tube of red paint; a container of what investigators believe to be petrol; a liquid combining a red substance placed in a container with what appears to be petrol which alleged to match the description of the substance found in the bottle located at the scene of the fire; two samurai swords; 17.1 grams of green vegetable matter, alleged to be cannabis; and 1041 grams of what is alleged to be psilocybin.
At the time of the search of the applicant’s property, a large hole, ‘measuring approximately 6 metres in height and one and a half metres wide’ was found in the rear of the property. The applicant is alleged to have told police that he had dug the hole to imprison Daniel Andrews. During the course of the hearing this morning, the applicant interrupted proceedings, to contest this assertion, saying that the hole was ‘for a vegetable garden’. When asked why a depth of six metres might be necessary, the applicant said, ‘ … and for food storage’.
Applicant’s background
The applicant is 44 years of age. At the time of his alleged offending, he lived with his partner and ten year old daughter. In the preliminary brief, it is asserted that the applicant is unemployed. In a letter on the letterhead of Pabcon Pty Ltd,[3] however, it is stated that the applicant ‘is currently employed with Pabcon Pty Ltd as a concreter’, he having been ‘a part of our team for four years and is on a contract’.
[3]Dated 26 October 2021.
The applicant has a limited criminal history arising from three court appearances between November 2016 and February 2020. His prior offending includes possessing a prohibited weapon, trafficking methylamphetamine and failing to answer bail. In addition to being on bail at the time of his alleged offending on 7 and 14 October 2021, the applicant was subject to a summons to answer charges that he recorded a proceeding at the Frankston Magistrates’ Court, and published that recording, contrary to ss 4A(1) and 4B(1) of the Court Security Act 1980.
Applicant’s material and contentions
The application for bail is supported by an affidavit affirmed by the applicant’s solicitor, Adrian Lewin. In his affidavit, Mr Lewin deposes to the applicant being able to reside with his partner, his partner’s stepdaughter and a family friend, if he is released on bail. Mr Lewin also deposes that the applicant is ‘usually employed and will have employment available to him upon his release as a concreter’.
In his affidavit, Mr Lewin identifies the following matters, in combination, as ‘compelling reasons why the application for bail should be granted’ and as also going to ‘the issue of the risk posed by the applicant being an acceptable one to the court’:
(1)Delay in proceedings. While the exact delay in this case is not yet known (given its early stages), ‘one would expect a delay in the order of two years from arrest to trial’.
(2)Onerousness of remand. The applicant is currently on remand at the Metropolitan Remand Centre. While it is conceded that his movements within the prison are not restricted to any great degree as a result of COVID-19, ‘he has been without any capacity for physical visits throughout his time there, essentially isolating him from his family’.
(3)Issues with the prosecution case. While the case is not submitted to be a weak prosecution case, ‘it is not a strong or overwhelming case’ — ‘there are triable issues on the current state of the evidence’.
(4)Accommodation. The applicant has stable accommodation available to him with his partner.
(5)Criminal history. The applicant has a limited (although relevant) criminal history. He has complied with correction orders in the past and has a single bail offence, being the finding of guilt for failing to answer bail for which he received a financial penalty.
(6)Time in custody. The applicant has never previously received a term of imprisonment, nor been in custody. His present time in custody is ‘a salutary reminder of the importance of bail compliance’.
(7)Court Integrated Services Program. An assessment and report from the Court Integrated Services Program has been requested and will be provided.[4]
(8)Likely sentence. While it is acknowledged that a term of imprisonment is likely upon conviction, it is possible that the delay in finalisation of these proceedings ‘may exceed the ultimate sentence or may subsume all or a significant portion of any non-parole period’.
(9)Employment. The applicant was working prior to his remand in custody and has work available to him should he be released.
[4]I will say more about this below.
Mr Lewin also contended that the issue of risk could be addressed by the imposition of conditions as to the applicant’s residence; reporting to the local police station; a curfew between the hours of 8 pm and 7 am; the applicant only owning and possessing one mobile phone, the number of which is provided to the informant; not leaving the state of Victoria or attending any international point of departure; not contacting any witnesses for the prosecution; and complying with all lawful directions of the Court Integrated Services Program.
Respondent’s position and contentions
The respondent opposed bail. It contended that the applicant had not established that a compelling reason existed that justified the grant of bail.
On the issue of unacceptable risk, the respondent noted that the applicant had previously been convicted of offences including trafficking methylamphetamine and failing to answer bail. The respondent’s position was that there were legitimate concerns that if the applicant were granted bail, he would continue to commit further offences, and at the same time endanger the safety and welfare of the public. In making that submission, the respondent referred to the following matters:
·the damage caused by the fire resulted in a period of time during which emergency calls made by the public may have been unable to be connected to the relevant authorities, putting the safety and welfare of the public at risk;
·the digging of the large hole, which the applicant said he had dug to imprison the Premier;
·on 4 September 2021, the applicant posted an instructional video on Facebook demonstrating how to fill balloons with red paint and methylated spirits to be thrown at the eyes of police at protests; he also posted further videos instructing his viewers to use improvised weapons such as bike chains against police;
·on 2 October 2021, the applicant travelled to the Great Ocean Road during a state-wide lockdown, in breach of a travel restriction; was stopped by police; filmed his interaction with police; and then posted a video on Facebook with the caption: ‘This is how you smash a police checkpoint …’;
·the applicant’s convictions for driving whilst disqualified, negligent driving while pursued by police, and driving whilst his authorisation was suspended;
·the applicant having shown a disregard for court-mandated orders and procedures, evidenced by his previous failure to answer bail and the recording he made of a court proceeding, without authorisation;[5] and
·the applicant’s failure to comply with COVID-19 curfew restrictions in place during the early hours of 7 October 2021.
[5]On 11 August 2021, the applicant was charged with intentionally recording a proceeding (heard on 26 July 2021) at the Frankston Magistrates’ Court, contrary to s 4A(1) of the Court Security Act 1980; and intentionally publishing a recording of that proceeding, contrary to s 4B(1) of that Act.
Additionally, the respondent noted that the applicant is accused of using an accelerant to light a fire in an open place, without any regard to the health and safety of the community. The area where the cell tower was destroyed is a mixture of farmland and residential houses. The respondent contended that, with the use of accelerants to light the fire, it was only luck that the fire did not spread to surrounding homes.
Consideration
Sections 4C and 4D of the Bail Act require the court, as step one, to consider the show compelling reason test; and then to move, as step two, to the unacceptable risk test.[6] At both stages of the analysis, the court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.[7] Moreover, the court is required to interpret and apply the Bail Act having regard to the matters set out in s 1B, which include:
(a)maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b)taking account of the presumption of innocence and the right to liberty;
[6]See s 4C(4) of the Bail Act.
[7]See s 4C(3) and s 4E(3) of the Bail Act.
The applicant bears the burden of satisfying the court as to the existence of a compelling reason.[8] The prosecutor,[9] however, bears the burden of satisfying the court as to the existence of a relevant risk and that that risk is an unacceptable risk.[10]
[8]See s 4C(2) of the Bail Act.
[9]Defined in s 3 of the Act to include ‘the informant, a police prosecutor and any other person appearing on behalf of the Crown’.
[10]See s 4E(2) of the Bail Act.
In Rodgers v The Queen,[11] the Court of Appeal summarised the principles to be applied when considering the compelling reason test as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3) A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.[12]
[11][2019] VSCA 214.
[12]Ibid [43] (citations omitted).
Having considered all of the circumstances of this case (including the matters set out in s 3AAA), I am not satisfied that a compelling reason exists that justifies the grant of bail to the applicant. Two points should be made immediately:
(1)While Mr Lewin deposed that a report had been requested from CISP and would be provided to the court, the report ultimately provided by CISP Remand Outreach Program concluded that the applicant was ‘not recommended for CISP’.[13]
(2)The respondent alleges that the applicant ‘has described the COVID-19 [vaccination]’ to be a poison and is strongly against it. He has told police that he will refuse to get vaccinated ‘because those who receive the vaccination will die in the next three years’. In the circumstances, the likelihood of the applicant (unvaccinated) being able to engage in the employment, which is said to be available, is doubtful.
[13]In the recommendation, the word ‘not’ is underlined.
In the course of oral argument, counsel for the applicant, recognising that the CISP report was unfavourable to his client, abandoned any reliance upon CISP. Additionally, he conceded that, given his client’s vaccination status, the issue of possible employment could no longer be relied upon. Instead, he placed emphasis on the stable accommodation available to the applicant if released, together with the support that would be provided by the applicant’s partner and extended family.
In relation to the issue of delay, it is simply too early in the prosecution of the applicant to say what the likely length of any delay will be. At present, there is a committal mention fixed for 13 January 2022. More will be known after that date. That said, even if one might expect a delay in the order of two years from arrest to trial (as submitted by the applicant), I am not persuaded that this delay (either on its own, or coupled with the other matters relied upon by the applicant) compels the conclusion that the applicant’s detention in custody is not justified.
While some of the offences alleged against the applicant are not particularly serious, the allegation that he set fire to, and destroyed, the Telecom tower is particularly serious. The charge of arson in this case is a very serious example of a serious offence.[14] Moreover, the prosecution case cannot be said to be a weak one.[15]
[14]See s 3AAA(1)(a) of the Bail Act.
[15]See s 3AAA(1)(b).
Further, the applicant has a relevantly unsatisfactory criminal history[16] and, in addition to being on bail at the time of his alleged offending, was also subject to a summons to answer the charges laid on 11 August 2021 under the Court Security Act.[17]
[16]See s 3AAA(1)(c).
[17]See s 3AAA(1)(e).
The applicant’s submission that it is possible that the delay in finalisation of these charges ‘may exceed the ultimate sentence or may subsume all or a significant portion of any non-parole period’ must be rejected. If the applicant is convicted (following a trial) of the arson with which he is charged, there is no reason to think that he will not receive a term of imprisonment and non-parole period, both of which will be measured in years.[18]
[18]See s 3AAA(1)(k) and (l).
While there are matters that tell in favour of a grant of bail (delay if it becomes excessive; the onerousness of remand in the current circumstances; the availability of stable accommodation; and the support available from the applicant’s partner and extended family), when one synthesises those matters and balances them with the other matters to which I have referred, they simply do not compel the conclusion that the applicant’s detention in custody is not justified. In the terms of the statute, the applicant has not satisfied me that a compelling reason exists which justifies a grant of bail. Accordingly, bail must be refused.
I would also refuse bail on the basis that the respondent has established that, if the applicant were to be released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of others, or commit an offence while on bail. The allegations against the applicant are disturbing, to say the least. I am not satisfied that there are any conditions that I could impose on a grant of bail which would make the applicant’s risk of offending while on bail or endangering the safety or welfare of others, that is not unacceptable.
Conclusion
The application for bail is refused.
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