Re Hafner
[2009] VSC 116
•2 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1416 of 2009
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by DARREN HAFNER
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 31 March 2009 | |
DATE OF RULING: | 2 April 2009 | |
CASE MAY BE CITED AS: | Hafner v R | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 116 | |
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Criminal law – Application for bail – Applicant charged with armed robbery and theft – Applicant on two sets of bail at time of being charged – Applicant in a “show cause” position pursuant to ss. 4(4)(a) and (c) of the Bail Act 1977 - Applicant breached previous bail by not residing at stated residence, failing to report and associating with co-accused – Significant criminal history – Applicant held not to have shown cause as to why his detention in custody is not justified – Court also satisfied that the applicant represents an unacceptable risk of re-offending and not answering bail – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. McQuillan | Leanne Warren & Associates |
| For the Respondent | Ms F. Holmes | Office of Public Prosecutions |
HIS HONOUR:
The applicant, David Hafner, gave notice dated 24 February 2009 of his intention to apply for bail. That application was heard by me on 17 and 31 March 2009.
The applicant was arrested and refused bail in the Melbourne Magistrates’ Court on 23 January 2009. The matters with respect to which bail has been refused are armed robbery, theft of a delivery van and theft of 205 mail parcels. All the offences are said to have been committed on 22 September 2008. The offences relate to the stealing at knifepoint of an Australia Post delivery van and the later removal and disposal of the contents of the van.
It is the Crown case that the applicant was the driver of the car in which he drove his co-accused to the place where the van had been stolen and later to have led the way into the predetermined place where the van was to be searched, anything of value stolen and any unwanted items disposed of.
The case against the accused is based upon statements made by two lesser accused and on some lawfully intercepted telephone conversations, but ultimately depends upon what inferences might be drawn from that evidence.
The applicant is already on two different sets of bail. The first relates to trafficking amphetamines and possessing a prohibited weapon. He was granted bail on 9 April 2008. There was to be a contested committal for those matters on 23 March 2009, but the applicant was not taken to Court on that day. The committal was adjourned for a month.
On 21 November 2008, the applicant was arrested and charged with conspiracy to traffick in a large commercial quantity of amphetamines and a number of dishonesty offences. He was granted bail. That grant of bail was in the face of the propositions that he was both in a “show cause” and “exceptional circumstances” situation. I can only assume that the major feature was delay, since an extension was sought for the delivery of the brief and the committal mention date for that matter is 19 May 2009.
These alleged offences fall between the two grants of bail. The accused is in a position where, because of the operation of sub-sections 4(4)(a) and (c) of the Bail Act 1977, the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified.
In her affidavit in support of granting bail, Ms Warren, solicitor for the applicant, submits that the applicant should be granted bail because the Crown case is weak, being based upon the evidence of two co-accused who have not yet been dealt with and some telephone intercept material which is not specific. She also relies upon the delay between September 2008 and January 2009 in laying charges. She further relies upon the likely delay for the hearing of this matter. The applicant is said to have, “permanent stable accommodation with his parents at 9 Beecroft Drive, Westmeadows. He has been in a long term relationship with Ms Georgovski”. He has two children aged two and three years old from that relationship and daughters aged 10 and 13 from his first marriage.
It is suggested that he has employment open to him. On the second day of the hearing of this matter, a letter containing an offer of employment was tendered to the Court. I accept such an offer is open.
Finally, it is submitted that although he has a criminal history, the applicant’s last prior offending was in 2001 and his history is not all that substantial. It should be noted that he served terms of imprisonment in 1997 and 1998 for trafficking heroin in Victoria, but more importantly, in 2002 was sentenced to serve seven years for conspiring to possess heroin and sell amphetamines in Western Australia. Additionally, in her affidavit, Ms Warren puts in issue the bona fides of the police in bringing these charges.
The application is opposed. It is suggested that the applicant has been in breach of his bail conditions by not residing at 9 Beecroft Drive, Westmeadows. At the time of his arrest on 23 January 2009, he had not reported as required on 21 and 22 January 2009. No reason had been advanced at the time, although ill-health has since been suggested as an excuse at the time of his arrest and subsequent bail application. A medical certificate was produced. After his release on bail on 19 December 2008, until 13 January 2009, it is alleged he contacted co-defendants on 297 occasions, contrary to his bail conditions. On 9 January 2009, two of his co-accused were present at his address contrary to his bail conditions.
It is also alleged that the applicant failed to observe the imposed curfew on three occasions.
In relation to the arrest on 23 January 2009, the applicant had been on bail for one month and two days.
It is also alleged that as a result of material gathered at the time of the search of his motor vehicle on 26 September 2008, the applicant was in the possession of two passports apparently belonging to somebody else, and that on telephone intercepted material he claimed to have the ability to prepare false passports at a cost of $1300.
Mr McQuillan of counsel who appeared before me on behalf of the applicant submitted that if the applicant had been charged with these offences at the time of his arrest in November 2008, then it is likely that he would have been granted bail because he then satisfied the “exceptional circumstances” test. I suppose that it is quite likely, but it might have also been another basis for opposing bail.
I heard evidence from the informant, Detective Senior Constable Favre from the Petra Task Force. I accept his evidence that the sequence of events was such that the decision, that there was sufficient evidence to charge the applicant with these offences, occurred after he had been charged in November 2008 and happened only shortly before his arrest in January 2009.
I would also be prepared to accept that the police were keen to gain the cooperation of the application with respect to other matters, but I reject the proposition that his refusal or failure to do so was the motive for the laying of these charges.
I observed in argument that I do not regard the case as weak, but I think it might possibly be weak as it relates to the charge of armed robbery. That does not resolve the issue for the applicant because irrespective of the armed robbery, he is still in a “show cause” position, as these alleged offences were committed whilst he was on bail.
In his evidence, the informant said that the difference between the two bails was the events which had occurred since the grant of bail in November 2008, as set out above. Some of those matters are challenged. The applicant denies that he had the amount of contact with his co-accused as alleged. Mr McQuillan challenged the identification of particular telephones as being connected with the applicant.
The question of addresses is not of much consequence, except in the regard that I will explain shortly. The address at which the applicant appears to have been residing directly abuts the rear of the address given on the bail document. The two blocks there are either open to one another or fairly open.
The applicant had not reported for bail on two days prior to his arrest. He had a medical certificate to cover those days, but had not, up until his arrest, made any contact with the police about it.
The applicant had apparently been on bail to appear at the Melbourne Magistrates’ Court on 9 January 2009 and did not appear. It appears that appearance derived from an earlier appearance about which the applicant claims to have been ignorant. The matter remains unresolved before me but is of little significance.
The applicant’s conditions of bail included a condition not to associate with co-accused. There is a challenge to the allegation that he contacted co-accused by phone on 297 occasions between 21 November 2008 and about 16 December 2008. The evidence identifying phone users is not completely satisfactory, but the informant gave evidence that other officers had spoken to the applicant on a particular phone which can be shown to have been used to contact telephones used by co-accused.
In addition, two co-accused have told the police, one in writing and one verbally, that they have been contacted by the applicant using that number.
On 6 January 2009, two co-accused were present at the applicant’s premises. That allegation does not appear to be challenged. The applicant said that he had no-one else to drive him to the police station to sign on. He was warned about the matter. He has also apparently breached his curfew.
Taken together, these matters indicate to me that the applicant has an extremely relaxed attitude to his bail obligations. I am concerned that he does not appear to take his obligations all that seriously. Conditions seem to be such that he will observe them when he thinks it is necessary to do so.
In support of his present application, for instance, he continues to suggest that he will live at 9 Beecroft Drive, Westmeadows with his parents, not that he would live with his family at 7 Grange Place, Westmeadows. As I have already observed, I do not regard his residing at that address as a serious breach of conditions, but it does show the applicant’s attitude.
The applicant’s criminal history is significant enough. He received a substantial sentence in 2002 from which he was probably released in late 2004 or early 2005. He has no criminal history since returning to Victoria from Western Australia. There appear to be in existence, warrants for his arrest in Western Australia. They must have been in existence for some time, and nothing seems to have been done about the enforcement of them. I do not regard them of consequence in relation to this application. The applicant has had access to what appear to be, if not false passports, passports which have been the subject of alteration, and has claimed to be able to obtain forged passports.
I am not satisfied that the applicant has shown cause as to why his detention is not warranted. I am also affirmatively satisfied that the applicant represents an unacceptable risk of re-offending, particularly when his pattern of alleged offending is examined.
I am also satisfied that the applicant is an unacceptable risk of not answering bail.
Bail is refused.
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