Re Johnstone
[2018] VSC 640
•25 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0255
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by TIMOTHY JOHNSTONE |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2018 |
DATE OF JUDGMENT: | 25 October 2018 |
CASE MAY BE CITED AS: | Re Johnstone |
MEDIUM NEUTRAL CITATION: | [2018] VSC 640 |
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CRIMINAL LAW – Bail – Threat to kill, contravene personal safety intervention order, commit indictable offence whilst on bail and contravene conduct condition of bail charges – Requirement to show compelling reason exists that justifies grant of bail – Whether compelling reason exists – Compelling reason not shown – Unacceptable risk – Bail refused – Bail Act 1977, ss 1B, 3AAA(1), 3AAA(1)(l), 4, 4AA and 4C.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Garner | Victoria Legal Aid |
| For the Accused | Mr P McKimmie | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
Introduction
The applicant applies for bail in respect of a number of charges laid against him on 21 August 2018 in respect of conduct which allegedly occurred on that day. The charges are:
i.Threat to kill
ii.Contravening a final personal safety intervention order (3 charges)
iii.Committing an indictable offence whilst on bail
iv.Contravening a conduct condition of bail (2 charges)
At the time the affidavit in opposition to bail was filed, it was the position of the respondent that the applicant was in the position where he would need to show the existence of exceptional circumstances justifying the grant of bail. The legal representatives of the applicant, however, contended that he was only in a position of having to show the existence of a compelling reason for the grant of bail. The position of the respondent has now changed, and it is common ground between the two sides that several of the charges faced by the applicant are Schedule 2 charges, meaning that a compelling reason in favour of bail must be established.
The alleged offending
For some years the applicant, a man who is 38 years of age and has no prior convictions, has lived in a Ministry of Housing flat in a block of flats at 48 Curran Street, North Melbourne. The complainant, a man named Warren Gehrke, moved into a flat in the same block, namely, flat 1, about two years ago. For reasons that are unclear on the material, but which, from what I was told during the application, may be as trivial as a disagreement about the practice of the applicant of wedging a communal security door open with a brick, the applicant and the complainant have been in dispute since 2017. The complainant has taken out a number of Personal Safety Intervention Orders (PSIOs) in that time.
In respect of a PSIO issued on 5 April 2017, the applicant is alleged to have breached the order on 5 February 2018. Although charges were issued on 4 March 2018, in the end, the applicant was not actually charged until 21 August 2018. There was one charge of contravening a PSIO.
Another Final PSIO was issued on 21 March 2018. As with the other orders issued from time to time, Mr Gehrke was named as the protected person. The order prohibited the applicant, inter alia, from stalking, assaulting or contacting the protected person, or touching his front door. The applicant was served with the order on 23 March 2018.
At about 10:00 am on 21 August 2018, it is alleged the applicant banged on the door of Mr Gehrke’s flat and yelled out, ‘Get fucked’. Mr Gehrke contacted the police. The applicant was arrested and interviewed by the police. He was charged with contravening a PVIO and released on bail at about 12.40 pm. The bail included conditions mirroring the terms of the PVIO.
At about 1.15 pm on the same day, the applicant again banged on the front door of Mr Gehrke’s flat. This time he yelled out, ‘I’m going to fucking kill you.’ The threat was heard not only by Mr Gehrke but also by a carer named Sally Pozar who was present with him in the flat. Mr Gehrke recognised the voice of the applicant. So, too, did Ms Pozar.
Mr Gehrke again contacted the police and again the applicant was arrested. Again, he was transported to the Melbourne West Police Station for interview and processing. Before being interviewed, the applicant stated he was ‘high’ on cannabis. He was examined by a Forensic Medical Officer and found to be unfit for interview. He was charged with making a threat to kill, multiple breaches of PVIOs, and offences under the Bail Act 1977 (‘the Act’). He was remanded in custody, and has been in custody since that time. He has made two unsuccessful bail applications.
The applicant
As mentioned above, the applicant is 38 years old. He has had some past history of schizophrenia but is not receiving any treatment. He has had a history of cannabis use, but has not received treatment for that either. Beyond these few facts, I know little more about the applicant, and find it hard to know why, at the age of 38, he has now been getting into trouble such as this after a previous history of no offending
The law
Section 1B of the Act reads, in part, as follows:
(1) The Parliament recognises the importance of –
(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;
(2)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 4 of the Act reads:
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 of the Act sets out circumstances in which a two-step test applies to the consideration of a grant if bail. Subsection (3) dictates that the ‘show compelling reason’ test applies to a decision whether to grant bail to a person accused of a Schedule 2 offence.
Section 4C of the Act has application where the ‘show compelling reason’ test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
Subsections (2) and (3) of section 4C indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of a compelling reason, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[1]
[1]Defined in s 3AAA of the Act.
Section 4E of the Act reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail; and
(b) the risk is an unacceptable risk.
(2) The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Meaning of compelling reason
The meaning of ‘compelling reason’ was considered by Beach JA in the bail decision of Re Ceylan.[2] In that case, his Honour stated:
Similarly, an enquiry under s4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant’s detention is not justified. For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.[3]
[2][2018] VSC 361.
[3]Ibid [46].
Later in the decision, his Honour stated:
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified...While again one should guard against substituting the statutory language, in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as a reason which is difficult to resist.[4]
[4]Ibid [47].
The applicant’s contentions
Ms Garner for the applicant relied on a number of matters in combination in proof of a compelling reason that would justify the grant of bail in this case. These were, as I understood them to be:
i.The fact the applicant has no prior convictions;
ii.The fact there was no significant level of violence in any of the offending;
iii.The fact the applicant has never been subject to a CCO or parole;
iv.The previous diagnosis of schizophrenia;
v.The availability of the services of CISP;
vi.The fact that police had always responded promptly to the applicant’s alleged conduct, which would be of comfort to Mr Gehrke;
vii.The fact the applicant has spent 64 days in custody;
viii.The fact that time in custody has been a wake-up call for the applicant and has provided much time for reflection;
ix.The availability of special conditions to reduce the risk of reoffending, including a condition the applicant only enter the premises through the back door;
x.The fact that the applicant is unlikely to receive a term of imprisonment even if found guilty of all of the charges, and that if he does, such term is unlikely to be as long as the period of time he has already been in custody.
In respect of the issue of unacceptable risk, Ms Garner submitted that appropriate bail conditions can render the risks that there are, acceptable ones.
The respondent’s contentions
Mr McKimmie, for the respondent, very fairly conceded that it would be open to me to find the existence of a compelling reason to release the applicant on bail. He did so largely on the basis of s 3AAA(1)(l), which requires the Court, when considering the compelling reason test, to take into account, amongst the surrounding circumstances, ‘the length of time the accused is likely to spend in custody if bail is refused.’
On that score, he submitted that a non-custodial sentence would be within the range should the applicant be convicted of these offences.
In respect of the consideration of unacceptable risk, Mr McKimmie, however, submitted that if I come to that, I should be satisfied that there is an unacceptable risk of the applicant endangering the safety or welfare of Mr Gehrke, committing an offence whilst on bail, or interfering with witnesses.
As he put it, the applicant has shown a blatant disrespect for PSIOs, which he has contravened on three occasions, two of them accompanied by threats to kill. Furthermore, he has shown little regard for conditions of bail previously imposed. He contravened the terms of his last bail undertaking by making a threat to kill Mr Gehrke within one hour of being released.
Mr McKimmie pointed to the last paragraph on page 1 of the CISP report as an indication of the unwillingness of the applicant to receive help for his drug use. His apparent self-assessment is very much at odds with the contents of the report of Sergeant Svanfelds which is exhibited to the respondent’s affidavit in opposition, and with the fact that the applicant was unfit to be interviewed on the occasion of his second arrest on 21 August 2018 because of the effects of drugs he had consumed.
Mr McKimmie submitted that the unacceptability of the risk is exacerbated by the vulnerability of the Mr Gehrke, who needs the assistance of a carer. He pointed also to the negative attitude of Mr Gehrke to bail of the applicant, and the fear he understandably feels.
He submitted that with the applicant living so close to Mr Gehrke, no conditions of bail can reduce the obvious risks to acceptable ones.
Mr McKimmie submitted that I should take account of the view of the police that the behaviour of the applicant has been escalating, and the concerns they have that he may actually act on his threats to kill Mr Gehrke.
He submitted that bail should be refused.
Discussion
The conduct allegedly carried out by the applicant towards Mr Gehrke on 21 August 2018, which has led to his current predicament, should be assessed in light of his earlier unwanted attention towards Mr Gehrke which was the subject of multiple PSIOs, the breach of an existing PSIO in February 2018, his arrest in connection with that, and now, the laying of a charge.
When the current PSIO was issued and drawn to the applicant’s attention, he must have known full well the need for compliance. On 21 August 2018, he completely ignored that requirement and allegedly breached the order. He was arrested and charged with that breach, and then released on bail with conditions which must have been clearly spelt out to him. Within 35 minutes, he again breached the PSIO, this time by threatening to kill the protected person. He also clearly, and in a number of respects, breached his bail.
It is difficult to imagine a more immediate and clear indication of the attitude of the applicant to bail, and to restraints imposed on his behaviour by Courts. He has a very recent track history where bail is concerned, and the history, unfortunately, is exceedingly poor.
When I consider the question of whether the applicant has established the existence of a compelling reason why he should be released on bail, I am required to consider the surrounding circumstances as explained in s 3AAA(1). Mr McKimmie pointed to one in particular of these as being of great importance. But in reality, of course, the question of the likely sentence to be imposed if the applicant is found guilty of the offences is but one of the matters to consider. A consideration of the other matters making up the surrounding circumstances in this case, far from pointing to a compelling reason why the applicant should be released on bail, points instead to strong reasons why he should not be released.
Furthermore, were I to come to consider the question of unacceptable risk, the material placed before me leaves me in no doubt that the risk of the applicant doing one of the things mentioned in s 4E is unacceptable. Indeed, as things currently stand, it seems to me to be inevitable that if the applicant was released on bail, he would breach the bail in some way in connection with Mr Gehrke.
Conclusion
In my view, the applicant has fallen well short of establishing that a compelling reason exists that would justify the grant of bail. None of the matters upon which reliance is put, alone or in combination, is capable of discharging the burden which rests upon the applicant.
Far from being satisfied of forceful, and therefore convincing reasons in justification for bail, the circumstances, as I see them, clearly point to the need for the applicant to be kept in custody at this time.
I say, for the sake of completeness, that had there been matters which to my mind, amounted to a compelling reason under s 4C, I would have been satisfied that, in the second step of the two-step test, there would be an unacceptable risk of the matters set out in s 4E(1)(a)(i) to (iii), with a particular focus on the safety and wellbeing of Mr Gehrke. In the circumstances, the risk of further violence or intimidation by the applicant of Mr Gehrke is significant, and entirely unacceptable.
I have made this decision in the knowledge that the applicant is next to appear at a contest mention at Melbourne Magistrates’ Court on 18 December 2018. That is two months from now. Much could change in that time. Further material may become available which would supplement the currently inadequate information available about the applicant and the reasons for his apparent spree of offending, and perhaps give a Court more confidence than I have that he is capable of being at large without further offending. A further application for bail might be possible in the future. In addition, of course, there may be the possibility of resolution of these matters without the need for a contested hearing.
In the circumstances which I have endeavoured to spell out in these reasons, the applicant’s application for bail must be refused.