Re Johnstone
[2017] VSC 48
•15 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0007
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by KAIDEN JOHNSTONE |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2017 |
DATE OF JUDGMENT: | 15 February 2017 |
CASE MAY BE CITED AS: | Re Johnstone |
MEDIUM NEUTRAL CITATION: | [2017] VSC 48 |
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CRIMINAL LAW – Bail – Show cause situation – Charges of aggravated burglary (imitation firearm), aggravated burglary (person present), aggravated burglary (intention to assault), aggravated burglary (intention to assault and imitation firearm), armed robbery, intentionally causing injury, common law assault and common law false imprisonment – Previous failure to answer bail – Unacceptable risk – Cause not shown - Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Albert | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms N Kaddeche | Turnbull Lawyers |
HIS HONOUR:
The applicant is currently facing charges of aggravated burglary (imitation firearm), aggravated burglary (person present), aggravated burglary (intention to assault), aggravated burglary (intention to assault and imitation firearm), armed robbery, intentionally causing injury, common law assault and common law false imprisonment. The charges arise out of events alleged to have occurred at about 5:50 am and thereafter on 7 April 2016, when the applicant and two others are alleged to have attended at a residential rural property in Langwarrin, armed with, what was originally thought to be an imitation semi-automatic handgun (but which it now transpires was in fact a firearm capable of firing one round), with the intention of committing an aggravated burglary.
The prosecution case is that the applicant, who was then 20 years of age, and two co-accused entered the premises at about 5:50 am. One of the applicant’s co-accused was in possession of the firearm. There were two occupants in bedrooms of the premises. The occupants were sons of the owner of the property. They were then aged 19 and 23. It is alleged that, during the offending, the applicant entered the bedroom of the 19 year old, shouted at him to wake up, tore a poster off the bedroom wall and then kicked the 19 year old occupant in the mouth while he was still in bed.
On the Crown case, the offending by the applicant and his co-accused lasted for some three hours. At the conclusion of the offending, it is alleged that the applicant and one of his co-offenders threatened the occupants of the property, telling them not to call the police or they would come back and kill them, even if it took 20 years.
Later in April 2016, and after the arrest and interview of one of the men alleged to have been an offender on 7 April, the applicant became a suspect in relation to the offending that occurred at the property. The evidence discloses that, after failing to locate the applicant, on 7 June 2016, the informant (Detective Leading Senior Constable Roberts) spoke by telephone to the applicant’s father to arrange for the applicant to surrender himself for an interview. On 10 June 2016, the applicant attended at the Frankston police station in company with his father. The applicant made a ‘no comment’ interview and declined to participate in an identification parade.
On 11 June 2016, the two occupants of the property, and alleged victims of the offending, attended at the Frankston police station. It is the Crown case that each victim participated in viewing separate photo-boards and that both victims identified the applicant as one of the offenders who attended their property on 7 April 2016.
On 23 June 2016, the informant contacted the applicant’s father to arrange for the applicant to surrender himself for a second interview. The applicant’s father was informed of the new identification evidence and it was explained to him that the applicant would be charged with serious criminal offences. The applicant’s father stated that the applicant was doing a TAFE course that would conclude in just over a week. After a short discussion, the informant requested the applicant to surrender himself immediately after he completed the TAFE course. The applicant’s father stated that he would endeavour to pass on the message. The informant says that it was clearly explained that if the applicant did not surrender himself then an alert would be put out for him and he would be arrested.
Ultimately, the applicant did not surrender himself and an alert was lodged for him to be detained if checked, for aggravated burglary with imitation firearm.
On 10 August 2016, an arrest warrant for the applicant was issued by the Ringwood Magistrates’ Court for a contravention of a Community Correction Order in respect of a previous sentence imposed upon him in respect of other offending.
At 2.00 am on 3 January 2017, the applicant was detained by Lilydale police after being checked as a passenger in an unregistered motor vehicle. The applicant was arrested for aggravated burglary with imitation firearm and for failing to comply with the directions of a Community Correction Order. The applicant was taken to the Frankston police station and interviewed. He made a ‘no comment’ interview.
Later in the morning (5.30 am on 3 January), the applicant was remanded into custody by a Bail Justice, Mr McClusky. Later again that morning, the applicant applied for bail before Magistrate Keil. That application was refused. The applicant has remained in custody since 3 January 2017.
The applicant has previously been found guilty of the offences of theft from a shop, going equipped to steal, unlawful assault, behaving in an offensive manner in a public place and hindering police. However, of more concern, is the fact that in December 2014, the applicant was found guilty of recklessly causing injury and failing to answer bail. It was for these offences that the applicant received the Community Correction Order to which I have already referred. That said, on each occasion that the applicant has had a criminal charge proved against him, the sentencing disposition imposed has been one ‘without conviction’.
The applicant accepts that he is in a show cause position under the Bail Act, having been charged with the offences of armed robbery and aggravated burglary (imitation firearm, intention to assault).[1] Pursuant to s 4(4) of the Act, the applicant must show cause that his continued detention in custody is not justified.
[1]See s 4(4)(c) of the Bail Act 1977.
The applicant submits that the following factors establish and show cause why his continued detention in custody is not justified:
(a) there has been no alleged offending since April 2016;
(b) if bailed, the applicant will reside with his father, his father now being able to offer the necessary support;
(c) the applicant has a modest criminal history, without any convictions previously being recorded, and no indictable offences since October 2013;
(d) the risk of the applicant failing to appear was said to be low in the context of his limited prior history. This submission was bolstered by what was said to be the support and stability now offered by his father which did not exist at the time of the alleged offending or at the time of the applicant’s apprehension;
(e) the applicant, having completed his VCAL in December 2016, is now able to commence work as a carpet layer immediately;
(f) it currently being the applicant’s first time in custody, this can be taken as having had a salutary impact on the applicant and reduces his risk of reoffending;
(g) the applicant’s age (he is now 21 years of age and was, as I have said, 20 at the time of the alleged offending);
(h) the absence of drug or other issues;
(i) the availability of the applicant’s father to provide a surety in the amount of $5000;
(j) the fact that the applicant is said to have ‘reasonable prospects of acquittal on all of the most serious charges’ (this point was amplified in argument this morning by reference to the failure to find the applicant’s DNA on the firearm said to have been used on 7 April); and
(k) the fact that there are a range of conditions that this Court could attach to any grant of bail to reduce the risk posed by the applicant to an acceptable level (conditions were said to include residence, reporting, curfew, non-association and surety).
Currently, the applicant’s charges are listed for a committal mention on 15 March 2017. As the applicant’s counsel submitted this morning, there will be some delay before any trial will be heard in the County Court and this delay needs to be taken account of in considering the present application.
In the Crown’s affidavit in opposition,[2] it was stated that bail was opposed on the basis that the applicant posed an unacceptable risk of reoffending, failing to answer bail and interfering with witnesses. However, this morning, counsel for the Crown said that bail was opposed because the applicant was in a ‘show cause situation’, and there was concern about the risk of the applicant committing further offences and failing to answer bail. These concerns were also expressed by the informant in evidence given this morning. However, the informant conceded in cross-examination that, in his opinion, these risks could be ‘reduced to an acceptable level with the placement of strict conditions’.
[2]Affidavit of Paul Davies affirmed 30 January 2017.
Notwithstanding counsel for the applicant’s very able submissions and the matters that can be said in support of the applicant’s application for bail, in my view, having regard to the applicant’s history, the applicant poses an unacceptable risk of failing to answer his bail and an unacceptable risk of further offending. Having regard to the threat allegedly made at the conclusion of the offending on 7 April, there is also, in my view, some risk of the applicant interfering with witnesses if he was to be granted bail, although I accept that that risk could be reduced to an acceptable level by the imposition of conditions.
Whether one might describe the applicant’s criminal history as modest, he has at a relatively young age already been involved in significant offending. Equally, one might debate the opinion in the applicant’s solicitor’s affidavit[3] that the applicant ‘has reasonable prospects of acquittal on all of the most serious charges’. Moreover, as the CISP report tendered this morning shows, it cannot be said that there is a complete absence of drug issues so far as the applicant is concerned.
[3]Affidavit of Emmanuel Joseph Brennan affirmed 18 January 2017.
While each of the matters relied upon by the applicant may be noted, they do not, either individually or in combination, show why the applicant’s continued detention in custody is not justified. Of particular significance, so far as the risk of the applicant failing to answer bail is concerned, is the applicant’s prior conviction for failing to answer bail on a previous occasion. Moreover, nothing that has occurred since 7 April 2016 suggests that the applicant might more readily comply with a bail order made today than he did in respect of the bail order he breached previously. The applicant’s breach of condition in respect of his previously imposed CCO and his failure to hand himself in after being granted an indulgence by the informant does not fill one with confidence that the applicant would now fully comply with any order made today. Further, and for the same reasons, I am not persuaded that such conditions as are capable of being attached to a grant of bail would make the risks, of the applicant committing further offences or not answering bail, acceptable. To the extent that the informant expressed a contrary opinion, I disagree.
The applicant, having failed to show cause why his continued detention in custody is not justified, his application for bail must be refused.
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