Re Goggin
[2022] VSC 221
•5 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0091
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| -and- | |
| IN THE MATTER of an Application for Bail by Rodney GOGGIN | Applicant |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2022 |
DATE OF JUDGMENT: | 5 May 2022 |
CASE MAY BE CITED AS: | Re Goggin |
MEDIUM NEUTRAL CITATION: | [2022] VSC 221 |
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CRIMINAL LAW – Bail – 46 year old applicant with no criminal history - Family violence offending in context of relationship breakdown – Repeated and flagrant breaches of family violence intervention order (‘FVIO’) – Concerning aspects of some of conduct of applicant – Previous threat to set fire to house with himself in it – No psychiatric material advanced in application - Likely delay of 9½ months before resolution of contested charges – Stable accommodation and family support available – Significant risk of further breaches of FVIO – Compelling reason not made out – Unacceptable risk in any event – Bail Act 1977 ss 1B, 3AAA, 4, 4AA, 4A, 4C, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Battersby | Marshall Jovanovska Ralph Criminal Lawyers |
| For the Respondent | Mr J Jassar | Victoria Police, Legal Branch |
HIS HONOUR:
Introduction
The applicant applies for bail on a number of charges he faces as follows:
| · Stalking. · Persistent contravention of Family Violence Intervention Order (‘FVIO’) (two charges). · Contravention of FVIO (five charges). Arson. · Theft. · Use carriage service to harass. · Install tracking device to monitor. · Criminal damage (two charges). |
It is agreed between the parties that the Court is required to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. This is because the applicant is accused of a Schedule 2 offence within the meaning of the Bail Act 1977 (‘the Act’).[1]
[1]An offence against s 125A of the Family Violence Protection Act 2008 is contained at item 19 of Schedule 2 of the Act.
Procedural summary
The alleged offending took place between 7 December 2021 and 14 January 2022. The applicant was arrested and charged on 24 January 2022. He made an application for bail on that date, which was refused in the Sunshine Magistrates’ Court on the basis that the applicant had failed to show a compelling reason, and that in any event he posed an unacceptable risk. A new facts and circumstances bail application was brought in the same Court on 31 March 2022, and was refused for the same reasons. The matter is listed for a contested hearing at Sunshine Magistrates’ Court on 11 November 2022.
Summary of alleged offending
The applicant and HS were de-facto partners for 22 years and have a 17-year-old daughter and a 15-year-old son.
They resided together in their jointly-owned property at 24 Studley St, in Weir Views until their relationship ended abruptly on 23 November 2021. Following this, the Studley St property was listed for sale and the applicant moved in with his mother in Melton South. HS remained in the Studley St property until 17 December when she moved with the children to 70 Toolern Waters Drive, Weir Views.
Part of the background to the charges were events which occurred on 26 November 2021. The applicant posted photographs of a noose on Facebook and advised family members that he was going to end his life. His sister attended the Studley St address and spoke with the applicant. She had concerns for his mental wellbeing and told the applicant that she would call the police. He responded to this by saying that if she did so, he would hang himself and burn the house down with himself inside it. When police attended, they found a rope, duct tape and a large hunting knife in the applicant’s vehicle. They located him barricaded in the garage. After a brief siege situation, he was detained and taken for assessment under s 351 of the Mental Health Act 2014 to the Northern Hospital.[2]
[2]The outcome of such assessment was not indicated in any material placed before the Court, save to say that counsel for the applicant indicated that the applicant had a brief stay in hospital.
A FVIO protecting HS from the applicant was made in Sunshine Magistrates’ Court and served on the applicant on 6 December 2021. Amongst other things, the order prohibited the applicant from attending within 200 metres of the Studley St address or any address at which HS lived, attempting to locate or follow HS or keeping her under surveillance, or contacting HS by any means other than in certain specified circumstances, for example, in respect of child arrangements.
Between 7 December 2021 and 10 January 2022, the applicant sent HS 116 emails. Approximately three quarters of these related to the sale of the Studley St property and care of their children, and the remainder discussed their relationship including one email asking HS to ‘stab me with my knife please’.
As well as email contact, it is alleged the applicant was in breach of the FVIO on the following occasions:
· On 17 December, when the applicant asked his daughter if she liked their new home and said, ‘It’s 70 Toolern Waters, yeah?’. This address had not been disclosed to the applicant.
· On 18 December, HS noticed that her clothes left at the Studley St property were damp and smelt of urine, there was damage to a number of items in the house and her drill set and a some bottles of alcohol were missing. Later that day the applicant posted a photograph of one of the bottles on his Facebook profile with a caption, ‘thanks girls’.
· On 21 December, a male consistent in appearance with the applicant and associated with a red utility vehicle of similar appearance to his vehicle was captured on CCTV at 3.37am opening HS’ car door where the vehicle was parked in a supermarket car park, leaning inside and then leaving the car where it was parked. Later that day, HS found a black GPS tracking device fitted under her steering wheel. After realising that her spare set of car keys was missing, HS spoke to the applicant’s mother about the tracking device and the missing car keys. The applicant’s mother provided the keys to HS and said, ‘I would not trust him’.
· On 24 December, the applicant communicated with HS about her missing drill through their son, confirming he had it and would return it.
· On 25 December, the applicant emailed HS to ask if her cat liked the fake grass in the back yard of her new home, despite being prohibited from attending HS’s house.
· On 27 December, the applicant emailed HS to let her know he had returned her drill at the Studley St property.
· Around 31 December, the security cameras at HS’s house were spray painted black, allegedly by the applicant.
· On 2 January, HS was monitoring new security cameras installed at her house when she saw the applicant arrive and place a pet carrier, which she had left at the Studley St property, on the doorstep.
· On 9 January, HS saw the applicant’s red utility drive past her bedroom window. She reviewed the CCTV footage which captured the visual and sound recording of the vehicle driving past her house. The applicant could be heard to yell ‘slut’ as he drove by. Between 7.00 and 9.00pm that day, the applicant received several calls from a private number which she did not answer.
· On 12 January, HS attended the Studley St property and observed that some wooden sleepers in the garden beds, which had been the source of disagreement with the applicant, had been burnt.
· On 13 January, HS’s birthday, flowers and a birthday card were delivered to her home. Believing the flowers to be from the applicant, HS dropped them at his sister’s house. Later that day the applicant sent a text message to his son referencing the flowers being delivered to the wrong address. He said, ‘the flowers look nicer even better now’. The next day HS found the flowers arranged in a wreath attached to the front door of the Studley St property and a candle on the doorstep.
· On 15 January at 4.40am, the applicant attended HS’ home, avoided the security cameras, turned the power off and left. HS had a lock fitted to the power box after this but on 21 January between 10.00pm and 1.00am the applicant again attended her home, avoided the cameras and broke the lock to switch off the power.
Investigation and arrest
On 24 January 2022 the applicant was arrested at his workplace and taken to Melbourne Police Station. He made a no comment interview but stated that he believed he was permitted to attend the Studley Street property with an approved person, and that he had attended with a friend, John Waters. The applicant was charged and remanded in custody.
Personal background
The applicant is 46 years old and was born in Werribee and raised initially in Carlton before a move to Heidelberg West. He completed year 9 in Preston and then lived for a time in Werribee with his great aunt and uncle. He then worked in various labouring and other jobs over the years. He was residing with his mother in Melton South and working at Winfield Automotive Services, owned by HS’s bother, at the time of his arrest.
The applicant commenced the relationship with HS 22 years ago. There are two children of the relationship aged 15 and 17. The relationship ended at the instigation of HS on 23 November 2021.
A psychological report of Warren Simmons dated 29 March 2022 was tendered during the hearing. The services of Mr Simmons were seemingly engaged in response to a concern expressed by the learned magistrate asked to provide a sentencing indication about the lack of expert material regarding the applicant. It is of some note that Mr Simmons did not point to any psychological or psychiatric problems with the applicant. No mention was made in the report of the incident referred to in this judgment when the applicant was taken for assessment under s 351 of the Mental Health Act 2014 following a siege instigated by the applicant when he threatened to burn down the house. Nor was there any mention of the occasion on which the applicant apparently invited the complainant to stab him with his knife.
The applicant has no criminal history.
The law
Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA sets out situations in which the show compelling reason test applies to a decision whether to grant bail. As already indicated, that test applies to this application. As a result, s 4C(1A) dictates that the Court must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of a compelling reason.[3] In determining whether a compelling reason exists, the Court must take into account the surrounding circumstances,[4] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[3]Section 4C(2).
[4]Section 4C(3).
If satisfied that a compelling reason exists, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
In applying the unacceptable risk test, the Court must again have regard to the surrounding circumstances in s 3AAA(1) of the Act and consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable, pursuant to s 4E(3) of the Act.
Meaning of compelling reason
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[5]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised 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.[6]
[5][2019] VSCA 214.
[6]Ibid [43].
Evidence on the application
The respondent Senior Constable Timothy Renshaw gave sworn evidence during the application. In examination-in-chief, he outlined the incident referred to earlier resulting in the applicant being taken to the Northern Hospital for assessment. In cross-examination, the respondent acknowledged the ongoing communication between the applicant and the complainant after the FVIO came into effect. The majority of communication concerned the house and the children and was not problematic. There were no instances or threats of violence at any time.
The mother of the applicant, Margaret Mackie, gave sworn evidence before me. She indicated the applicant would be welcome to reside with her in Melton South should bail be granted. She would keep an eye on him and report him if he breached curfew. She offered a surety of $5000. In cross-examination, Ms Mackie indicated that a close friend of the applicant who he visits regularly lives in a house behind the complainant’s new address.
The applicant’s submissions
Mr Battersby for the applicant relied upon a combination of matters in proof of the existence of a compelling reason. These included the following:
a) The age and lack of criminal history of the applicant.
b) This is the applicant’s first time in custody, and it has had a salutary effect upon him. He now fully understands the consequences of breaching the FVIO, and of breaching bail.
c) The absence of any adverse bail history.
d) Delay. The applicant has already been in custody for 98 days. If the matters proceed to contest and the applicant is not granted bail, he would spend some nine and a half months in custody, a period which would likely exceed any sentence he would be ordered to serve even if found guilty of all charges. Indeed, Mr Battersby submitted that the offending alleged against the applicant may not attract a custodial sentence at all. Mr Battersby put the consideration of delay forward as one which, of itself, would warrant a finding of a compelling reason.
e) Significant family support. Mr Battersby pointed to the evidence given by the applicant’s mother. She can not only provide a stable address but some supervision as well.
f) The applicant’s health concerns. He apparently has a rotator cuff injury which requires surgery. In addition, during the application, Mr Battersby indicated that there have been concerns as to the applicant’s cardiac health. The report of Mr Simmons asserted that the applicant had experienced two heart attacks, one of them since being in custody. No medical material was provided which confirmed this position. Several days after the hearing of the application, a discharge summary from Barwon Health dated 4 May 2022 was provided to the Court indicating that the applicant had been assessed in the Emergency Department on 3 May 2022 and admitted to hospital as a result of chest pain he was experiencing. The diagnosis was described as ‘likely pericarditis’. Further testing and future treatment were touched on in the summary. There was nothing to indicate any history of previous heart attack. Nor was there anything to indicate that appropriate treatment would not be able to be provided to the applicant in custody.
g) The availability of a surety of $5000.
h) The availability of full-time employment at Winfield Automotive.
i) The seriousness of the offending. Whilst Mr Battersby noted a number of concerning features of the offending, which involved flagrant and repeated breaches of an intervention order, he pointed out that there were no instances of physical violence or threats of violence to the complainant. The offending occurred in the context of the applicant seemingly struggling with the sudden end to a long-term relationship. Even the most serious charge, the stalking offence, should be seen as falling within the mid-range of seriousness.
j) Arguable issues in relation to a number of charges. Mr Battersby acknowledged that the prosecution case is strong in relation to the bulk of the charges, but pointed to ‘arguable issues’ in respect of some of them, including the charges of damaging property, theft, and installing a tracking device. Notwithstanding those submissions, Mr Battersby conceded that the circumstantial case on those charges might be viewed as being quite strong.
k) The applicant’s prospects of rehabilitation would be hindered by any further period in custody. In this regard, Mr Battersby relied upon the decision of Riordan J in Re Gaylor.[7]
[7][2019] VSC 46.
Turning to the question of risk, Mr Battersby submitted that notwithstanding the repeated and flagrant breaches of the intervention order, the applicant has never had the benefit of receiving bail. As noted, the consequences of breaching the intervention order have now been clearly spelt out to him. Furthermore, any future breaches of bail or of the FVIO would undoubtedly be reported by the complainant or the applicant’s mother to the police. Any concerns about risk should be tempered by the fact that the past conduct of the applicant has not involved actual violence or threats.
An array of bail conditions was advanced by Mr Battersby as being sufficient to ameliorate any risk posed by the applicant so that it would not be unacceptable.
The respondent’s submissions
Mr Jassar for the respondent fairly conceded at the outset of the hearing that a number of the matters relied upon by the applicant, including the suitability of his mother’s address, were not in dispute. He conceded that if the respondent remained in custody until a contested hearing, any custodial term he may receive would be exceeded by the time on remand.
Notwithstanding the latter fact, Mr Jassar submitted that a compelling reason has not been shown, and that in any event, the applicant would pose an unacceptable risk if released on bail.
Mr Jassar highlighted a number of concerning, indeed, disturbing features of what he described as the ‘escalating’ conduct alleged against the applicant, all of which occurred in the context of an active FVIO, the conditions of which were entirely unambiguous. He pointed to the important background of the threat previously made by the applicant to burn down the house with himself inside. Mr Jassar expressed concern about the lack of psychiatric material in the application, in light of the resort that was had by police as recently as 26 November 2021 to s 351 of the Mental Health Act 2014. Whilst it is true that there have been no acts or threats of violence by the applicant to the complainant, family violence does not have to be overt. Mr Jassar described the conduct engaged in by the applicant as ‘subversive family violence’.[8] He submitted that the behaviour of the applicant would be likely to affect the complainant emotionally and psychologically. In addition, Mr Jassar submitted that the proven conduct of the applicant, in the context of his past threat to burn down the house, would also raise the prospect that he may physically harm the complainant, in spite of the fact that he has not done so in the past.
[8]Transcript 54.
Turning specifically to the matter of risk, Mr Jassar pointed again to the escalating nature of the offending, noting, amongst other things, that the recent conduct of the applicant in attending the home of the complainant contrary to the FVIO and turning off the electricity is more than merely churlish or annoying behaviour. It is disturbing.
Mr Jassar did concede that if psychological or other additional material was placed before the Court, there may be the prospect that the current unacceptable risk might be ameliorated to an acceptable level. As the matters now appear, however, he submitted that the risk posed by the applicant is unacceptable.
Analysis
In considering the question of whether the applicant has discharged the onus resting on him of proving that a compelling reason exists that justifies the grant of bail, I am of course required to have regard to the surrounding circumstances, as set out in the non-exhaustive list of matters in s 3AAA(1) of the Act.
I turn, now, to the first of these. The applicant is charged with what his own counsel fairly described as being repeated and flagrant breaches of the FVIO to which he was subject at the time of all of the alleged offences. From an early time in the life of the order, the applicant seemingly chose to ignore the conditions of the order. True it is that he was obviously in a distressed state about the break-up of his relationship with the complainant, but on numerous occasions, he deliberately did things which he knew he was not permitted to do, and many of these actions of his were of a kind likely to cause real concern to the complainant, as should have been quite apparent to him.
I make particular reference to some of the allegations. The applicant is alleged to have entered the former house he shared with the complainant and urinated on some of her clothing. He is alleged to have installed a tracking device in her car by using a set of stolen keys to unlawfully enter her motor car at night time, in knowledge of the fact that a specific condition of the FVIO put in place only weeks before prohibited him from attempting to locate or follow her, or keeping her under surveillance. He is alleged, on more than one occasion, to have entered her property – a property he knew he was not entitled to come within 200 metres of – at night time, and turned off the electricity to the property. On the prosecution case, there have been no fewer than six attendances by him at the property of the complainant.
Whilst I acknowledge that the offending of the applicant is not at the higher end of the spectrum of seriousness, the offending alleged is still inherently serious and of a concerning nature.
Turning to the strength of the prosecution case, it is unnecessary for me to dwell for long on this matter. At this stage, at least, it would not be unreasonable to consider the case on all of the charges to be of reasonable strength.
I note that it is an important matter that the applicant has reached his current age without accruing any criminal history. So, too, is the lack of any adverse bail history a matter of note.
Against that, of course, is the fact that the repeated and clear breaches of a FVIO in place from an early time and up until his arrest raise the concern that he may lack the appropriate level of respect for orders of courts. The fact of there being a FVIO in place is one of the matters specifically required to be taken into account as part of the surrounding circumstances under s 3AAA of the Act.[9] Furthermore, s 5AAAA(2) of the Act requires a court in considering the release on bail of a person charged with a family violence offence to consider whether upon release of the person there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a condition.
[9]Section 3AAA(1)(f) of the Act.
The likely delay pending the resolution of contested charges, and the concession made by the respondent that the period on remand if bail is refused would exceed any sentence the applicant may be required to serve upon conviction are very important matters, but not determinative of the application. The matters referred to in s 3AAA(1) (k) and (l) are but two of the aspects of the surrounding circumstances required to be taken into account.
Having carefully considered all of the matters relied upon by Mr Battersby, I am not satisfied that the applicant has discharged the burden resting on him of proving that a compelling reason exists that justifies the grant of bail. Notwithstanding the many aspects of the circumstances which are to the applicants’ favour, I think a number of matters including the nature and frequency of his offending, the concern some of the offending raises about his mental state, the close proximity in which he would live to the complainant should he be bailed at this time, and the high likelihood that he may again seek to have contact with her in breach of the intervention order and any condition of bail, dictate the conclusion I have reached about a compelling reason.
That would be sufficient to dispose of this application. For completeness, I can indicate that had I come to consider the question of unacceptable risk, I would have been satisfied that the respondent has discharged the burden of proving that the applicant, if released on bail, would pose an unacceptable risk of endangering the safety or welfare of any person and committing offences whilst on bail.
Conclusion
For the reasons stated above, this application for bail must be refused.
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