Re Hill
[2014] VSC 288
•19 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR No. 0066 of 2014
IN THE MATTER of the Bail Act 1977
-and-
IN THE MATTER of an application for bail by JARROD WARD HILL
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JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2014 | |
DATE OF JUDGMENT: | 19 June 2014 | |
CASE MAY BE CITED AS: | Re Hill; Application for Bail | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 288 | |
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CRIMINAL LAW — Bail — Show cause application — Indictable offences alleged — Bail Act 1977 s 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Pearson | James Dowsley & Associates |
| For the Prosecution | Mr G Hughan | Craig Hyland, Solicitor for Public Prosecutions |
HER HONOUR:
Background
The applicant is presently in custody. On 22 May 2013, he was charged with the following offences: intentionally cause serious injury; recklessly cause serious injury; unlawful assault; making threat to kill and theft.
In summary, the Crown alleges that on 15 March 2013, the complainant visited his friend, Adam Lewis, in Croydon. The complainant had met the applicant a number of times before. The complainant and the applicant had a disagreement that became heated. The complainant decided to leave to avoid further argument. He then walked up the driveway and as he reached the nature strip, it is alleged that the applicant hit the complainant’s left leg and then his right leg about three times with a machete or meat cleaver type weapon and threatened to kill him if he rang the police.
Subsequently the complainant underwent surgery on both legs to repair his fractured left ankle and nerve damage to his right calf. His leg was then placed in a plaster, he was restricted to a wheel chair and required extensive rehabilitation to enable him to walk again. He subsequently made a physical recovery from the injuries.
The applicant has been committed to stand trial on these charges in the County Court. His trial is listed for trial for hearing on 16 March 2015 for seven days. The matter is listed for a final directions hearing on 29 January 2015.
The applicant’s previous bail applications
The applicant initially applied for bail at the Melbourne Magistrates’ Court on 16 July 2013. That application was refused.
A subsequent application, made on 8 November 2013, was also refused. The grounds for refusal were that the applicant had failed to show cause and was an unacceptable risk of failing to appear.
On 16 January 2014, the applicant made a third application for bail in the Melbourne Magistrates’ Court and that application was again refused. The grounds of refusal were that the applicant had failed to show cause and was an unacceptable risk of committing further offences while on bail, endangering the safety and welfare of the members of the public, interfering with witnesses or otherwise obstructing the course of justice.
The applicant’s current application for bail
The applicant now applies for bail.
In support of his application, he relies on an affidavit sworn on 13 May 2014 by his solicitor, Adrian Philip Paull together with oral evidence given by Mr Bradley Hill, his father’s cousin, who is prepared to have the applicant live in his home in Frankston if he is granted bail.
The Crown opposes his application, relying on an affidavit of Anthony Sherwood, solicitor of the Office of Public Prosecutions for the State of Victoria, sworn 27 May 2014 and the report of Detective Leading Senior Constable Bickerton exhibited to the affidavit.
It is common ground between the applicant and the Crown that as the applicant has been charged with an offence where it is alleged that an offensive weapon has been used and has also been charged with an indictable offence which is alleged to have been committed while he was at large and on bail awaiting trial for another indictable offence, the applicant is required to show cause, pursuant to s 4(4) of the Bail Act 1977, why his detention in custody is no longer warranted, taking into account any of the ‘unacceptable risk’ features in s 4(2)(d)(i).
The principles relevant to an application of this kind were considered by Maxwell P in Re Fred Joseph Asmar (‘Asmar’).[1] In Asmar, his Honour concluded that the correct approach is that s 4(4) requires the Court only to consider one question, namely, whether the applicant has shown cause why his detention is not justified. His Honour further stated that a Court could not be satisfied, to that effect, unless the Court were satisfied that there was no unacceptable risk on any of the grounds described in s 4(2)(d), namely, an unacceptable risk that the applicant, if released on bail, would: fail to answer his bail; commit an offence while on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice.
[1][2005] VSC 487; see also Application for Bail – Mark Handler [2013] VSC 166.
The applicant’s case
In his submissions, the applicant relies on a combination of matters to show cause as follows:
Delay
The applicant would have served 662 days in custody from the date of his arrest to the commencement of the trial. The applicant concedes that 148 days of that time served in custody was reckoned as a period of imprisonment already served. Such a delay is said to be excessive.
Counsel for the applicant also referred to s 21(5)(2) of the Charter of Human Rights and Responsibilities Act 2006[2] but did not seek to develop any submission in that regard other than to state that the section must be set alongside the ‘show cause’ provisions of the Bail Act.
[2]Section 21(5)(2) relevantly provides:
A person who is arrested or detained on a criminal charge
(a)…
(b)has the right to be brought to trial without unreasonable delay; and
(c)must be released if paragraph … (b) is to complied with.
Mental health difficulties
The applicant relies on a report of Ms Carla Lechner, clinical and forensic psychologist. She diagnosed the applicant as suffering from symptoms consistent with Stimulant Use Disorder, anxiety, mood disorder and features of post traumatic stress syndrome and attention deficit hyperactivity disorder.
Available accommodation and ties to the jurisdiction
The applicant would have a stable residence with his cousin, Mr Bradley Hill, in his home in Frankston. This is 50 kilometres away from the address of the alleged offending in Croydon and would abide by a geographical exclusion from the Croydon area.
Mr Hill’s wife is a qualified psychiatric nurse and is capable of monitoring the applicant’s psychiatric wellbeing.
Limited criminal history
The applicant has a short, though relevant, criminal record with no prior convictions for failing to appear or breaching bail.
In his affidavit, Mr Paull set out the previous convictions of the applicant as follows:
(a)24 June 2005 - One count of recklessly causing serious injury, one count of assault with a weapon and one count of non- prohibited person possess general category handgun without licence;
(b)3 April 2007 - one count of failure to comply with a community based order made on 24 June 2005 and was therefore re-sentenced on one count of recklessly cause serious injury and one count of assault with a weapon;
(c)2 June 2010 – one count of unlawful assault;
(d)13 December 2010 – one count of failing to give name/address, one count of failing to report to police owner not present and one count own unregistered vehicle used on highway.
(e)27 July 2011 – one count of failure to comply with an undertaking made 2 June 2010 and one count of unlawful assault.
(f)18 October 2013 – one count of stalking, one count of contravening a Family Violence Intervention Order and one count of recklessly causing injury. As a result, the applicant was sentenced to a term of imprisonment of 148 days determined as time already served in custody.[3]
[3]The Crown tendered the police record for the applicant as at 13 June 2014 which confirms the applicant’s criminal record.
The current charges are the first time that the applicant has been in custody.
Employment available
The applicant has employment available to him with a company called Newgen Systems located in Hawthorn East.
Completion of courses while on remand
The applicant has completed a variety of drug and alcohol rehabilitation courses and vocational courses since he has been in custody. Counsel for the applicant tendered a bundle of documents demonstrating that the applicant had undergone tests for certain substances on 1 September 2013, 3 December 2013 and 16 February 2014 with the results for the listed substances set out in the certificates as negative.
Counsel also tendered documents identifying the courses attended by the applicant in 2013 and 2014 as follows:
2013
(a)May 2013 — applicant had enrolled in a subject ‘Operate Spreadsheet Applications’ and is attendance as at 11 July 2013 was ongoing;
(b)13 June 2013 — completion of 90 minute Court Readiness programme;
(c)17 June 2013 — certificate of completion of the release related harm reduction programme;
(d)27 September 2013 — completion of an introduction to Anger Management Programme;
(e)2 October 2013 — complete of 6 hour AOD & Stress Programme;
(f)17 December 2013 — completion of Mood Management Programme;
(g)2013 — certification by Kangan Institute that the applicant participated in Workplace Safety Operations as part of a certificate in Laundry Operations; and
(h)2013 — certification by Kangan Institute that the applicant completed subject ‘prepare and serve expresso coffee’ as part of a certificate in Hospitality (Kitchen Operations).
2014
(a)February 2014 — completion of three hour problem solving programme;
(b)27 March 2014 — enrolled and attended on two days for a certificate in laundry operations but not completed;
(c)13 June 2014 certificate for completion of 24 hour drug treatment programme for men; and
(d)2014 — certification by Kangan Institute that the applicant participated in a subject ‘environmentally sustainable work practices’ as part of a certificate in Laundry Operations.
Willingness to engage in counselling
The applicant says that he is willing to participate in further psychiatric evaluation, neuropsychological evaluation and engage in drug counselling in the community.
Curfew
The applicant would abide by a curfew that he remain at his place of residence in Frankston at night time and he present himself to the door if police requested him to do so.
Reporting conditions
The applicant would abide by conditions that he report to police as frequently as required.
The Crown’s case
The Crown opposes bail on the basis that the applicant presents an unacceptable risk of committing further offences while on bail, failing to answer bail and interfering with witnesses or otherwise obstructing the course of justice.
Committing further offences while on bail
The applicant is also alleged to have breached an IVO against his former partner, Cassandra Briggs, on 13 January 2013 and assaulted Terry Patrick on 30 January 2013. In relation to the charge against Terry Patrick, the applicant has since pleaded guilty to the charge of recklessly causing injury.
Failing to answer bail
The applicant failed to answer bail at Ringwood Magistrates’ Court on 22 November 2012 and a warrant was issued for his arrest to answer charges of threat to inflict serious injury, stalking, reckless conduct endangering serious injury, criminal damage that were committed in Kilsyth between 15 October 2011 and 16 October 2011.
Prior to his custody, the applicant did not have a fixed address in Victoria and has been travelling between New South Wales and Victoria. Whilst in New South Wales, he stayed at numerous addresses.
During a record of interview between the New South Wales police and the applicant on 2 July 2013, in the presence of the informant, the applicant told police that he was going to return to New South Wales if released on bail.
On 15 July 2013, the applicant’s father stated that he knew the applicant could not be trusted and would abscond and fail to answer bail.
Interfering with witnesses or otherwise obstructing the course of justice
The applicant has a long history of family violence incidents, there being twelve between 24 February 2008 and 13 January 2013, involving his former partner, Cassandra Briggs, his sister and his father, Stephen Hill. These incidents included physical violence, threats of violence, including threats to kill and verbal abuse. The applicant also has a prior conviction for serious assault in 2004, involving the use of a piece of concrete that he used to hit the victim on the head causing serious injury to the victim.
The complainant and two witnesses have expressed concerns for their safety if the applicant is released on bail. The complainant fears that the applicant may further assault him if he is released on bail. The reason for his fear was that on 7 May 2013, he received a telephone call from the applicant who said ‘You’re dead’. This threat was made subsequent to threats made by the applicant shortly after the assault on the victim when he threatened to kill the victim if he reported the assault to the police.
During the recorded interview with the applicant on 22 May 2013, the applicant denied all allegations stating that he was in New South Wales at the time of the offences. The Crown alleges that the applicant had possession of a mobile telephone that he used to call the victim after the assault and CCTV footage establishes that the applicant was in Victoria on the day of the assault.
Further evidence at the hearing
As stated, the applicant is able to reside with Mr Bradley Hill in his home in Frankston with his wife and three teenage children. In oral evidence, Mr Bradley Hill said the applicant is the son of his first cousin. Mr Bradley Hill said he first met the applicant in the 1990s but had no contact with him until a few months ago when he started to visit the applicant fortnightly in custody. The applicant struck Mr Bradley Hill ‘as an intelligent articulate young man’.
Mr Bradley Hill was questioned as his wife’s qualifications and ability to monitor the applicant’s psychiatric wellbeing. He said his wife had worked originally as a nurse and then moved into nursing psychiatric patients. She has not worked as a psychiatric nurse for some 15 years and her qualifications had lapsed many years ago. Since she stopped work, his wife was a full-time mother and wife looking after their five children. Two of those children had now moved out of home and the three youngest, aged 14, 13 and 12 years, still living at home and attend school. I infer that Mrs Hill stopped work around the time she started her family so that it is more probable that she stopped work approximately 20 years ago rather than 15 years ago. Mrs Hill was not called to give evidence.
Mr Bradley Hill was also questioned about the employment said to be available to the applicant with Newgen Systems if he were granted bail. Mr Bradley Hill said he currently worked for Newgen Systems on a contract basis and would be a full-time employee in the next few months. The business provided services in the computer industry. He said the applicant’s proposed job would be in the sales area requiring the applicant to deal with clients on the telephone or by email renewing existing contracts for services provided by Newgen Systems. Mr Bradley Hill agreed that the applicant had no experience of sales in the computer industry.
The applicant tendered, without objection, a letter dated 13 June 2014 from a Mr Robert Perin, described as the ‘managing director’, of Newgen Systems. In his letter, Mr Perin said he had ‘attempted to obtain [the applicant’s] prior criminal history but have been unsuccessful due to privacy issues and communication restrictions due to his incarceration’. Mr Perin stated that he understood that the applicant’s prior convictions relate to assault and are not related to fraud or theft and on the basis of that information and ‘with future full and detailed disclosure of his criminal history being provided to me, I am highly likely to offer him a position of employment with my organisation’. Before me, counsel for the applicant accepted that the job offer from Mr Perin was a ‘fairly conditional offer’.
The applicant also tendered two letters verifying that an appointment had been made by the applicant’s mother for the applicant to attend on Dr Nathalie Gutierrez at the Seaford Beach Family Clinic in anticipation of bail being granted. The purpose of the attendance was said by counsel for the applicant to set up a regime for the ongoing treatment of the applicant and the fact of the appointment was said to support this.
Counsel for the applicant said that the applicant’s parents, who were present in court, were moving to live permanently in New South Wales in the near future. In her report, Ms Lechner said the applicant stated he had not spoken to his mother for about 18 months and he was concerned that she was ‘giving up on him’ and he has ‘a more ambivalent relationship with his father’.
The applicant also tendered a letter from his former partner, Cassandra Briggs dated 17 April 2014. Mr Briggs is the mother of the applicant’s five year old son, Tate. She said the applicant has not seen Tate for 18 months as for part of that time she had an intervention order in place because of the applicant’s drug use and the people that the applicant was involved with at the time. In recent months, she has spoken to the applicant because he rings Tate often and she has taken Tate to see the applicant in custody on two occasions (although she did not say when). She said that Tate is asking questions about his father and wanting to see him. She wrote that Tate and the applicant speak on the telephone most days. Ms Briggs expressed the view that she thought the applicant would not re-offend as he understands the consequences if he did and he has gone a long time without his son and does not want to miss any more time with his son. She also stated that because she had health problems with her hips it would be helpful if the applicant were granted bail for him to take Tate out on weekends.
Conclusions
The Crown’s reasons for opposing the grant of bail to the applicant are numerous and were clearly articulated by the Crown. These reasons are supported by the report of the informant exhibited to Mr Sherwood’s affidavit. In his submissions before me, counsel for the applicant addressed the Crown’s reasons in a general sense only.
Having said that, it is beyond argument that if the applicant were not released on bail, he will have been in custody awaiting trial from, in effect, 18 October 2103 until 16 March 2015.[4] On any view, this is a lengthy delay.
[4]This calculation is taken from 18 October 2013 because his sentence on that date to a term of imprisonment of 148 days was determined as time already served in custody ie. from 22 May 2013 to 18 October 2013.
I note that although counsel for the applicant contends that the applicant has a short criminal record, in my view, he does have a criminal record of serious offences over a period from 2005 to 2013 include recklessly cause serious injury and assault with a weapon in 2005, 2007; recklessly cause injury and stalk another person in 2013; unlawful assault in 2010 and 2011 as well as other firearm and traffic offences. In addition, the applicant’s criminal history discloses other breaches of court orders such as failing to comply with CBO in June 2005, failing to comply with undertaking order in June 2010, contravening a family violence interim intervention order in 2013. The breaches of these orders and the undertaking to which I have just referred suggest that, at least in the past, the applicant has had no respect either for his own undertakings or for orders have been made in respect of him. As I have already said the applicant was on bail when he was charged with the present offences. .
I also consider that the evidence supports that during his time in custody, the applicant has conducted himself well and has taken the opportunity to undertake a number of courses and he has tested negative to drugs on three separate tests.
I take in to account that the applicant states he is willing to abide by the conditions such as curfews, and other conditions to be imposed and reporting to the police as well as participating is further evaluations concerning his psychiatric health and wellbeing. I also note that the applicant’s mother made an initial appointment for the applicant to attend on Dr Gutierrez.
I have considered the letter from Cassandra Briggs and her view on the applicant’s potential to re-offend. It is more of a thought or hope and I place little weight on her view. Her letter principally deals with the applicant’s relationship with his young son and the effects on that relationship as a result of him remaining in custody.
The applicant relied on the report by Carla Lechner dated 5 March 2014 generally. Her report concludes that the applicant has a mixture of complex psychological and behavioural issues. Her assessment of the applicant took place recently, in March 2013, when she examined the applicant.
Although Ms Lechner did not formally assess the applicant’s intelligence, she said that he ”impressed as being of ‘average/low average’ intelligence” but is capable of reflecting on the impact of his behaviour on himself and others. He is, however, easily overwhelmed by social and emotional factors that undermine his judgment and decision making. She described him as impulsive in nature, has a low tolerance for frustration and a strong desire for immediate gratification. She concludes that the applicant presents as a complex clinical picture characterised by symptoms of Stimulant Use Disorder with underlying symptoms of mood disturbance which is suggestive of a bi-polar or cyclothymic mood disorder, and anxiety with symptoms of clinical depression. She also said the applicant possibly had features of post-traumatic stress disorder with his history strongly suggestive of an untreated and undiagnosed attention deficit activity disorder. Ms Lechner opined that the applicant’s involvement with the treatment services as outlined in her report and ongoing abstinence from drug use would reduce the risk of the applicant finding himself in or near trouble.
In view of Ms Lechner’s conclusions as to the applicant’s complex symptoms, I am not satisfied that Mr Bradley Hill’s wife is an appropriate person to monitor the applicant’s wellbeing. It is a large task that she would be taking on in a situation where she is no longer qualified in a professional sense to undertake it and she already has a full-time occupation with her family of three teenage children.
In addition, whilst Mr Bradley Hill drew a different conclusion as to the applicant’s intelligence, his view cannot be given the same weight as that of Ms Lechner. Mr Hill has only recently come to know the applicant, and only while he has been in custody. Mr Hill is not qualified to have any understanding of the complex nature of applicant’s psychological profile having known him for a short time and only in custody. He also works full-time in East Hawthorn and also has family commitments and lives in Frankston.
In terms of future employment if the applicant were granted bail, the evidence of employment is a wish rather than a reality. It could not be said, as it was initially said by counsel, that the applicant has employment available to him with Newgen Systems. I also note that the applicant has no background, training or experience in the proposed job described by Mr Bradley Hill.
In the circumstances, I am not satisfied that cause has been shown. In my view, the conclusions expressed in Ms Lechner’s report, together with the detailed past behaviour and actions of the applicant relied on by the Crown, establish that the applicant represents an unacceptable risk that, if released on bail, he would commit further offences while on bail, fail to answer bail, interfere with witnesses or otherwise obstruct the course of justice.
Accordingly, I refuse the application.
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