Re Guinane
[2020] VSC 208
•6 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0049
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Michael GUINANE |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 April 2020 |
DATE OF JUDGMENT: | 6 April 2020 |
DATE OF REASONS | 23 April 2020 |
CASE MAY BE CITED AS: | Re Guinane |
MEDIUM NEUTRAL CITATION: | [2020] VSC 208 |
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CRIMINAL LAW - Bail – Family violence offending – Compelling reason – Conceded by respondent – Unacceptable risk – Delay and onerous custodial conditions due to COVID-19 – Delay likely to exceed any custodial sentence – Limited prior convictions – First time in custody - Applicant able to live with supportive mother and engage in employment – Willingness to accept treatment and counselling – Availability of substantial surety – Very strong incentive to abide by bail conditions – Not an unacceptable risk – Bail granted with strict conditions – Bail Act 1977 ss 4AA, 4C, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Fayman Lawyers |
| For the Respondent | Mr J Kibel | Victoria Police Legal Services Department |
HIS HONOUR:
Introduction
Michael Guinane, the applicant, applied for bail in respect of a total of 19 charges he faces comprising charges of reckless conduct endangering serious injury, making threats to kill, making threats to inflict serious injury (two charges), assault (common law) (two charges), unlawful assault (seven charges), criminal damage (two charges), recklessly causing injury, making threats to damage property, and contravening a conduct condition of bail (two charges).
In the circumstances, I would have been required to refuse bail unless satisfied that a compelling reason existed that justified the grant of bail.
On the hearing of the application on 6 April 2020, for reasons which I will detail later in this decision, I determined that the applicant had discharged the onus resting on him to prove a compelling reason in justification for a grant of bail. The respondent did not satisfy me that there was an unacceptable risk attaching to the release of the applicant on bail pursuant to s 4E(1)(a) of the Bail Act 1977 (‘the Act’).
In those circumstances, I granted bail to the applicant on stringent conditions. I indicated that I would publish my reasons at a later time. These are those reasons.
Procedural history
At the time of the hearing, the applicant had been in custody since 12 February 2020. He had been refused bail twice in the Frankston Magistrates’ Court, on 13 February and 19 March 2020. On both occasions, bail was refused on the basis that the applicant had failed to show a compelling reason that justified his release on bail.[1]
[1]The first application for bail was further refused on the basis that there was an unacceptable risk that the applicant would commit an offence on bail, endanger the safety or welfare of any person and interfere with a witness or otherwise obstruct the course of justice if granted bail.
The matter is next listed for contest mention in the Frankston Magistrates’ Court on 13 May 2020.
The Crown case
By way of background, the applicant and the complainant, Jenna Palmer, were in a relationship between November 2018 and October 2019 and had off-and-on contact after that as well up until late January 2020. They commenced living together in Cranbourne in April 2019, along with the complainant’s two children. The applicant’s young son would also stay overnight each fortnight.
It is alleged that, during this time, the applicant repeatedly assaulted the complainant by hitting, choking and spitting at her, verbally abused her and made numerous threats to kill and seriously injure her. He acted in a possessive and controlling manner towards her and would take steps to prevent her leaving their residence, including by taking her phone and keys and pouring liquid over her.
The alleged violent and threatening offending occurred on a large number of individual dates between 14 June 2019 and 25 January 2020. I will not set out the details of the respective individual crimes alleged, but note that these were spelt out in some detail in the material filed in the application. The alleged offending included instances of the applicant throwing furniture and other items at the complainant, punching and kicking her, forcibly rubbing pawpaw cream over her face, placing his hands around her throat and squeezing hard, threatening to kill her, and placing a knife to her throat and threatening to slit her throat.
To illustrate the seriousness of some of the offending alleged, it is worth setting out a summary of two events. On 4 January 2020, the complainant met with the applicant to calm him down after receiving numerous messages from him. It is alleged that he ‘flipped out’, rubbed pawpaw cream over her face and body and began throwing furniture at her. The applicant then stood in front of the door to prevent her leaving and told her she ‘wasn’t going anywhere.’ He placed his hands around her throat from behind and squeezed so hard that the complainant believed she would die, before letting go and telling her ‘…I’m so obsessed with you, I’m gonna fucking kill you.’ The complainant felt unable to leave and spent the night at the applicant’s residence, where he used ‘ice’ prior to going to bed. She avoided contact with him for two weeks after this event.
On 22 January 2020, after a period of not seeing each other, the applicant and complainant resumed contact and the complainant again attended at his residence, where he was washing dishes in the kitchen. Their interaction was initially friendly until the applicant took a large kitchen knife from the knife block, spun the complainant around so that her back was to him and held the knife to her throat. The applicant threatened ‘this is what I’ll do to you, I’ll fucken slit your throat.’ The complainant froze in fear and the applicant showed her that he had been holding the blunt edge of the knife to her throat, as though joking. However, he then pressed the knife to her throat again and repeated, ‘but seriously, if I catch you with anyone else, I’ll slit your throat.’
On 25 January 2020, the complainant received a number of text messages and phone calls from the applicant in which he threatened to slit her throat.
Having moved out of the premises she shared with the applicant, the complainant installed a voice recording application on her phone and thereafter recorded some 1,810 phone calls between herself and the applicant between 20 August 2019 and 25 January 2020. I had the opportunity to listen to the recordings of five of these telephone calls which were made on 25 January 2020.
In these phone calls, which have not yet been transcribed, the applicant frequently used very insulting and demeaning language towards the complainant. In the first of the calls, for example, he said to her, ‘That’s why you’re gunna be that fat fucking loser cunt you’ll always be’. He also uttered a number of veiled and explicit threats towards her and her family. In the fourth of the calls, in response to the complainant telling him that she was scared of him, and asking him whether he wanted her to be happy or miserable, the applicant said, ‘Miserable’. He threatened to slit her throat, before threatening to have someone else do that. In the final call, he repeated his threat to slit her throat.
The following day, the complainant was at her workplace at F45 gym in Cranbourne West when the applicant threatened to attend the gym to find her. It is alleged that once there he verbally abused her, spat on her and threatened to ‘put a pole through [her] car’, before entering the gym and remaining inside as she ran her training class.
On 28 January 2020, the complainant attended Frankston Police Station and reported the incidents of the previous week. The applicant was arrested on 31 January 2020 and took part in an interview in which he denied the allegations put to him. A complaint and warrant was issued in relation to an application for a Family Violence Intervention Order (‘FVIO’) and the applicant was granted bail to attend the Frankston Magistrates’ Court on 5 February 2020. The conditions of his bail included that he not attend within 200m of the complainant’s workplace.
On 1 and 2 February 2020, it is alleged that the applicant knowingly attended another of the complainant’s workplaces, a ‘Snap Fitness’ gym, in contravention of bail conditions. This was reported to police by the gym owner who provided CCTV footage and still images of the applicant.
On 5 February 2020, a 12 month full no-contact FVIO was made with the applicant’s consent.
The complainant made further allegations against the applicant on 8 February 2020, which are the basis for charges 1 to 14.
The applicant attended Dandenong Police Station by appointment on 12 February 2020 in relation to the further allegations. In his interview he made limited admissions but ultimately denied physically assaulting the complainant or threatening to kill her. In respect of the alleged bail offences, he stated that he did not know that the complainant had commenced work at Snap Fitness and that he had been attending that gym for 10 months. He was arrested and remanded in custody.
The applicant
The applicant is a 31-year-old man. He shares a 4-year-old son with his former partner, Tarryn Mills, but presently has contact which is limited to telephone calls between himself and his son in which a speaker phone is used permitting his former partner to hear.
Prior to his remand, the applicant was employed in the construction industry as a plasterer. He was most recently employed by Expoconti Pty Ltd based in Dandenong South since April 2013, working as a ‘defect co-ordinator’ on their Melbourne Quarter project in the Melbourne CBD. His uncle, Leigh Bomford, is the Project Manager of Expoconti Pty Ltd.
The applicant admitted to commencing methamphetamine use in 2019 in the context of negative peer associations. However, he stated that his use was minimal and did not interfere with his ability to work or continue his usual routine. He further reported maintaining abstinence from drugs of dependence since being on remand and indicated a willingness to engage in counselling programs for substance abuse, including through self-referral.
The applicant has a limited, dated criminal history comprising findings of guilt for dishonesty, property damage and nuisance offences, which were each dismissed following compliance with undertakings given to the court.
The law
The Court was required to refuse bail unless satisfied by the applicant that a compelling reason existed which would justify the grant of bail, pursuant to ss 4AA(3), 4C(1A) and (2) of the Act.
This was because the applicant is accused of committing a number of Schedule 2 offences, namely, making a threat to kill that is also a family violence offence and contravening a conduct condition of bail.[2]
[2]Schedule 2, items 7 and 30 of the Bail Act 1977 (‘the Act’).
If satisfied that a compelling reason exists, the Court was required to apply the ‘unacceptable risk’ test pursuant to s 4D(1)(b) of the Act. Bail must be refused if the Court was 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 was an unacceptable risk.
The applicant’s contentions
Mr Tovey, for the applicant, relied on a combination of matters in establishing a compelling reason that justified the grant of bail. He submitted, with some justification, that the application was being made in times of unprecedented uncertainty and upheaval in the administration of justice in this State owing to the COVID-19 pandemic. He commenced his submissions during the application by devoting attention to the impact of the pandemic, which he said was relevant in three separate but important ways.
First, the significant delay that would result in the hearing of the case as a result of steps taken by the Magistrates’ Court to deal with the implications of the virus. The case was unlikely to be heard until early next year, meaning that the applicant would spend a substantial period of time on remand before finalisations of the charges.
Secondly, the increasingly onerous and restrictive conditions under which the applicant would be held if not released on bail. Mr Tovey detailed these to the Court, and it is not necessary to set them out here.
Thirdly, the likely availability to the applicant of an allowance for emergency management days under s 58E of the Corrections Act 1986 due to the onerous conditions referred to above. Mr Tovey submitted that even in the absence of this factor, and the credits it may provide to the applicant in the service of his sentence, there was a significant risk that the applicant would spend more time on remand than the eventual sentence he may receive. With the likelihood of an allowance for emergency management days, that would become a certainty. Mr Tovey submitted that this fact on its own would be sufficient to establish a compelling reason in favour of bail.
Having set the scene thus, Mr Tovey then sought to rely on the following matters in combination in, as he put it, comfortably satisfying the Court of the existence of a compelling reason:[3]
[3]As per outline at [20].
a) Delay;
b) That there are real issues to be tried in the case;
c) The impact of the COVID-19 pandemic;
d) The applicant’s personal circumstances in the community would include stable accommodation, employment and family support;
e) The availability of ongoing treatment and counselling in the community including through the Men’s Behaviour Change course and Heavy M.E.T.A.L. program;
f) The availability of a substantial surety in the amount of $50,000;
g) Ties to the jurisdiction;
h) The risk that the applicant may serve more time in custody than would otherwise be imposed if he were found guilty of some or all of the charged offences;
i) The applicant’s lack of relevant prior history;
j) The applicant’s personal circumstances, including the fact that this is his first time in custody;
k) The applicant’s willingness to be subject to stringent conditions of bail; and
l) That the applicant is not an unacceptable risk if released on bail.
Mr Tovey expanded upon many of these matters in oral submissions. All of the matters were also dealt with in his detailed written outline. I need not, in the circumstances, set out the details of most of these matters.
One of the important matters discussed during the application was the location at which the applicant would reside should he be released on bail. The location which was first proposed was with his friend Luke Nunan and his fiancée at an address in Cranbourne North. During the application, the mother of the applicant, Jeanette Guinane, who was also proposed as the surety in the event of bail being granted, indicated that she would be prepared to have her son reside with her and her daughter in Hampton Park. She also gave an undertaking to the Court that she would report any breach of conditions of bail to the police.
During the course of his submissions, Mr Tovey accepted that the alleged offending was serious, but noted that that alone did not constitute a barrier to the grant of bail. As for the strength of the case, he noted that the applicant denied the offending. Whilst there may be some supporting evidence on some charges, on many there was not. He made particular reference to charges 18 and 19 which alleged breaches of a condition of bail by virtue of the applicant’s attendance on two consecutive days at the premises of Snap Fitness. Mr Tovey submitted that the case on those charges was weak, and that the conduct of the applicant generally since the grant of bail on 31 January was indicative of his willingness to abide by bail conditions and leave the complainant alone.
On the question of unacceptable risk, Mr Tovey relied on the same combination of factors relied upon in connection with the issue of a compelling reason in support of the contention that such risks as did exist could, by the imposition of stringent conditions of bail, be ameliorated such as to be acceptable. He summarised how the applicant’s life would look should he be granted bail with all the supports and controls over him constituted by the proposed condition, and submitted that the picture would be a very stable one. As for the incentive for the applicant to abide by conditions of bail, it would be exceedingly strong. In fact, Mr Tovey went as far as to submit that it would be ‘an act of familial legal suicide’ by the applicant to in any way approach the complainant.
The respondent’s contentions
The respondent, through Mr Kibel, conceded that it would be open to the Court to find that the applicant had demonstrated a compelling reason justifying the grant of bail. One of the very important matters going towards that position was the fact of the long delay which would necessarily occur before the final resolution of the charges, assuming they continued to be contested. Mr Kibel submitted that any hearing date in this matter would not be until next year, and not necessarily early in the year.
In spite of the concession as to a compelling reason, Mr Kibel submitted that bail should none the less be refused because the applicant was an unacceptable risk of:
(a) Endangering the safety or welfare of any person;
(b) Committing an offence whilst on bail; and
(c) Interfering with witnesses or obstructing the course of justice.
In response to the applicant’s contentions in support of bail, the respondent disputed that the prosecution case relied solely on the complainant’s version of events. In addition to the complainant’s statements, the prosecution case relies on the applicant’s interview, witness statements, data extracted from both the applicant’s and complainant’s phones, call records, CCTV footage and medical reports.
The informant’s report also stated that a review of the applicant’s phone located videos and photographs of the applicant using what appeared to be methylamphetamine, together with references to ‘ice’ in text messages between himself and his former partner, as well as his mother.
The respondent noted that the complainant is scared of the applicant’s potential release and believes that she and her children will be in extreme danger if the applicant is granted bail.
The respondent made the following submissions in relation to unacceptable risk:
(a) Endangering the safety or welfare of any person. It was submitted that the offending alleged in this matter was committed in the context of family violence and over a prolonged period of time. Noting the allegations involved the applicant holding a knife to the complainant’s throat, choking her with significant force and repeatedly assaulting her, as well continued threats to slit her throat, it was submitted that his offending represented a serious risk to her safety.
(b) Committing an offence while on bail. The respondent noted that the applicant is charged with contravening bail conditions and submitted that he well knew that the complainant was employed by ‘Snap Fitness’, and utilised his membership at that gym to locate her. It was submitted that this, in combination with his continual offending against the complainant, demonstrated that he is an unacceptable risk of committing further offences on bail.
(c) Interfering with a witness or otherwise obstructing the course of justice in any matter. It was submitted that the applicant attended the complainant’s workplace intentionally in order to locate and intimidate her. This was supported by a statement from the gym owner, who indicated that the applicant and complainant used to attend the gym together while they were a couple. It was therefore submitted that the applicant was a serious risk of interfering with the complainant if released on bail.
Analysis
Having considered the surrounding circumstances of the case as I was required to do, I was satisfied that a compelling reason existed that would justify a grant of bail in this case. I considered that Mr Tovey had put forward a powerful case in seeking to discharge the onus resting on the applicant of establishing a compelling reason, and I was all the more willing to accept that the test had been met as a result of the fair concession made by the respondent in that regard.
Turning to the question of unacceptable risk, I again was required to have regard to the surrounding circumstances in determining whether the respondent had discharged the onus resting upon him. Central amongst the matters to which I had regard was the lengthy delay likely to the resolution of the charges, in light of the COVID-19 issues, and the related and effectively unchallenged contention of the applicant that the period of time he would spend on remand would exceed any term of imprisonment he may receive upon being found guilty. One other of the very important matters to which I had regard was the fact that, in spite of the charges alleging a breach by the applicant of a condition of bail granted to him on 31 January 2020, which are strongly denied, there was nothing to suggest any attempt by the applicant to contact the complainant since that time. Mr Tovey submitted that the incentive for the applicant to abide by the conditions of bail was exceedingly strong, and that with the stringent conditions imposed, including the provision by his mother of a surety of $50,000, the Court could be satisfied that the obvious risks which existed could be considered to be acceptable in the circumstances.
An important factor in my eventual acceptance of the defence position was the evidence of Jeanette Guinane. She struck me as a supportive mother who had taken some important steps to provide guidance and assistance to her son, and who, in her position as the surety to any grant of bail, would be able to keep a close eye and a firm hand upon him to ensure he does not slip up.
Having carefully considered all of the surrounding circumstances, in spite of the serious and nasty nature of the applicant’s alleged offending, I was of the view that the respondent had failed to establish the existence of an unacceptable risk. I considered that the imposition of very stringent conditions would suffice to reduce the risk posed by the applicant to the level of being acceptable in the particular circumstances of this case.
Conclusion
For the reasons stated above, I was willing to grant the applicant bail on his own undertaking with one surety in the sum of $50,000 and on the following conditions:
i. That he attend the Frankston Magistrates’ Court on 15 June 2020 or such other date as is notified to him and then surrender himself, and must not depart without the leave of the court and, if leave is given, must return at the time specified by the court and again surrender himself into custody.
ii. That he reside at [address redacted] (‘the premises’).
iii. That he remain and be present at the premises between the hours of 9.00pm and 5.00am each day (‘the curfew hours’) for the duration of the bail.
iv. That he present himself at the front door of the premises during the curfew hours if and when called upon to do so by a member of Victoria Police.
v. That he report to the Officer-in-Charge or his or her nominee of the police at Narre Warren Police Station every Monday, Wednesday and Friday between the hours of 5.00am and 8.00pm.
vi. That he not use any drug of dependence.
vii. That he not enter or pass through any of the suburbs of Cranbourne, Cranbourne North or Cranbourne East, or the town of Leongatha.
viii. That he not be the registered or actual user of any mobile telephone other than a single mobile telephone, the number of which he is to provide to the Court and/or the respondent.
ix. That he comply with the terms of the intervention order in Case Number L10220884 made by the Frankston Magistrates’ Court on 5 February 2020.
x. That he not approach or in any way contact or seek to contact Jenna Pinkerton (Palmer) or any family member of Jenna Pinkerton (Palmer) in any manner whether directly or indirectly and whether or not through or with the assistance of a third party.
xi. That he not name or in any way refer to Jenna Pinkerton (Palmer) in any social media or other online platform.
xii. That he attend, whether in person or electronically, the initial intake assessment at the Men’s Behaviour Change Program at Family Life in Frankston on 14 May 2020 and that he thereafter attend all sessions of the program and comply with the lawful directions of the program coordinator.
xiii. That he attend, whether in person or electronically, an appointment at Men’s Education Towards Anger & Life (‘M.E.T.A.L.’) on 14 April 2020 and that he thereafter undertake counselling and treatment as directed by that organisation.
xiv. That he attend an appointment at First Health Medical, 77-79 Hallam Road, Hampton Park, on 16 April 2020 at 6.00 pm for the purpose of being provided with a Mental Health Plan by a general practitioner at that service.
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