Re Kake
[2020] VSC 852
•15 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0275
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an application for bail by Ted Kake |
---
JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2020 and 15 December 2020 |
DATE OF JUDGMENT: | 15 December 2020 |
CASE MAY BE CITED AS: | Re Kake |
MEDIUM NEUTRAL CITATION: | [2020] VSC 852 |
---
CRIMINAL LAW — Application for bail — Alleged family violence and weapons offences — Whether exceptional circumstances exist that justify a grant of bail — Whether applicant an unacceptable risk — Bail granted — Bail Act 1977 (Vic) ss 4AA, 4A, 4D — Crimes Act 1958 (Vic) s 15.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Crowle | Richard Revill Lawyers |
| For the Respondent | Ms B Cowley | Victoria Police |
HIS HONOUR:
Introduction
Ted Kake (the applicant) seeks bail in circumstances where he must show exceptional circumstances that justify a grant of bail.[1]
[1]Bail Act 1977 (Vic) ss 4AA(2)(c)(iv), 4A(1) & 4A(2).
There are a total of 38 offences alleged by Senior Constable Hope Amy (the Informant).[2] The alleged offences include Schedule 2 offences under the Bail Act 1977 (Vic) allegedly committed while the applicant was subject to a Community Corrections Order (CCO)[3] for a Schedule 2 offence. Some of the offences are also alleged to have been committed whilst the applicant was on bail for indictable offences charged by Senior Constable Dion Wintle.
[2]Intentionally cause injury (Charges 1, 5, 8), Recklessly cause injury (Charge 2, 6, 9), Unlawful assault (Charges 3, 4, 10), Assault with a weapon (Charge 7), Contravene Family Violence Intervention Order (FVIO) (Charge 11, 12, 13, 14, 15, 30–32), Persistent Contravention of a FVIO (Charge 16, 33), Commit indictable offence on bail (Charge 17–23, 24), Contravene Conduct condition of bail (Charges 25–29), Threat to kill (Charge 34), Prohibited person possess firearm (Charge 35), Prohibited person possess imitation firearm (Charge 36), Possess prohibited weapon (Charge 37), possess ammunition (Charge 38) But note that charges 17 to 23 are to be withdrawn because the applicant was not on bail at the relevant time.
[3]The CCO was imposed on the applicant on 20 September 2019.
Summary of Alleged Offending
The applicant and complainant Kuni Waenga were in a relationship for 17 years and have 5 children together. Between January 2020 and 7 May 2020, it is alleged that the applicant threatened and assaulted the complainant, causing her to suffer various injuries including bruising to her stomach, chest and face and swelling to her knuckles.
On 12 May 2020, a Family Violence Interim Intervention Order (FVIIO) was made at the Sunshine Magistrates’ Court listing the complainant and the 5 children as protected persons. The relevant conditions of the FVIIO prohibited the applicant from committing family violence against the protected persons and from contacting or communicating with them. It also excluded the applicant from 5 Gould Street, Deer Park, where they resided, and prevented him being within 10 metres of them.
It is alleged the applicant breached the conditions of the FVIIO by contacting his daughter Anah Kake and the complainant, attending the Gould Street address and engaging in behaviour constituting family violence.
Upon his arrest on 24 July 2020 at 9 Jacka Street, Mickleham, it is alleged the police located a locked trailer in the garage and found inside an operable homemade firearm and ammunition, as well as a taser.
The applicant has been remanded in custody since 24 July 2020.
Antecedents
The applicant has prior convictions for family violence against both the complainant (8 November 2017) and his daughter Destiny (7 October 2018). These offences, in combination with various driving offences, resulted in the applicant receiving a CCO on 20 September 2019 at Sunshine Magistrates’ Court. As mentioned above, this CCO was in force at the time of the alleged commission of the offences for which the applicant now seeks bail.
Although the applicant has prior convictions for offences involving violence, breach of court orders and committing offences while on bail, he has never been sentenced to a term of immediate imprisonment, although he received a 6-month suspended sentence of imprisonment in combination with a Community Based Order on 8 December 2009 at Frankston Magistrates’ Court.
Summary of Evidence Given at Bail Application
On 16 November 2020, the Informant gave evidence before me. She testified that the complainant now resides in New Zealand with 4 of her 5 children. She testified that the complainant’s child Destiny Kake (16) still lives in Victoria and does not want her father to be granted bail or to make contact with her.
As for charges 36–38 regarding the firearm, ammunition and taser found in the locked trailer at 9 Jacka Street, Mickleham, the Informant indicated that DNA and fingerprint analysis remains outstanding. She indicated that the results would be available by the time of the Contest Mention listed at Sunshine Magistrates’ Court on 1 December 2020.
The applicant’s father, Ted Kake Snr, also gave evidence on 16 November 2020. He testified that he was aware of the current charges and of his son’s criminal record but was prepared to offer him support and accommodation. He said he would report any breaches of bail to the police.
Respondent’s Submissions
The respondent made written and oral submissions in addition to filing an affidavit in opposition to bail. The respondent submitted that bail should be refused because the material relied on by the applicant is insufficient to establish exceptional circumstances that justify the grant of bail and that, even if I were so satisfied, bail should still be refused because the applicant poses an unacceptable risk of endangering the safety and welfare of any person (including but not limited to the complainant), committing offences while on bail, interfering with witnesses and failing to answer his bail.
The respondent noted the severity of the alleged offending and submitted that the evidence relied on in support of those charges makes for a strong prosecution case. Further reliance was placed on the applicant’s criminal record, the existence of a FVIIO, and the fact that the applicant was subject to a CCO at the time of the alleged offending while also on bail and subject to summons for other charges.[4]
[4]On 10 May 2020, it is alleged the applicant assaulted his son Levi Kake. He was arrested the following day and charged by Senior Constable Dion Wintle with intentionally causing injury, recklessly causing injury, 2 counts of unlawful assault, driving whilst disqualified, driving an unregistered car, possession of cannabis, possession of a prohibited weapon (an axe) and possession of cartridge ammunition. He was granted bail on 12 May 2020 with special conditions imposed requiring that he reside at 9 Jacka Street, Mickleham, notify the informant of any change of address within 24 hours, and comply with the Family Violence Interim Intervention Order made that day. The applicant is also charged on summons by Constable Aftab Merchant with possession of a prohibited weapon (knuckle dusters) on 24 May 2020.
As for the proposal that the applicant reside with his father if granted bail, the respondent submitted that the arrangement was not suitable given the applicant has resided there previously and was charged with offences during that time. It was also noted that the applicant’s father is currently on bail for unlicensed driving and was recently the subject of a bench warrant in respect of that charge.
In written submissions, the respondent disputed the submission by the applicant that, if bail were refused, the applicant may spend more time in custody on remand than he would receive on sentence. However, in oral submissions, the respondent conceded that such a possibility existed.
The respondent submitted that the impact of the COVID-19 pandemic was not a controlling factor in assessing whether exceptional circumstances are made out but is simply one of the relevant surrounding circumstances.
Ultimately, the respondent submitted that the primary concern is the risk associated with the applicant’s apparent propensity for violence, alleged access to weapons and firearms, and ongoing commission of family violence offences. In its written submissions, the respondent pointed to a number of previous family violence incidents between the applicant and the complainant and his children dating back to 2014.
The respondent submitted that although the complainant and 4 of her children have left the jurisdiction, contact between them and the applicant is still possible and concern remains for the safety of the daughter remaining in Victoria.
It was submitted that the applicant has had opportunities in the past to address his drug and alcohol addictions and mental health issues via CCOs.
Analysis
The main complainant Kuni Waenga and all but one of her children are now living in New Zealand. If the applicant is released on bail, it is possible that the applicant could still make contact with them but their relocation greatly reduces the risk of harm to them. If the applicant contacted them online, the complainant will no doubt alert the Informant.
There is one child (Destiny Kake) who is still in Victoria. She is aged 16. She opposed the applicant’s release on bail. Were the applicant to contact her, I expect that she too would promptly contact the Informant.
On 16 November 2020, the parties agreed that the earliest available date for a contested summary hearing was May 2021. The applicant submitted, and the respondent conceded, that if the contested hearing was conducted in May 2021, and the applicant was convicted, it was possible that any sentence of imprisonment imposed on him might be exceeded by pre-sentence detention.
The Informant gave evidence on 16 November 2020 that she had been advised that DNA and fingerprint results in relation to the weapon’s charges would be available by the contest mention listed for 1 December 2020. But 1 December 2020 has come and gone and those results are still pending. As a consequence, a further contest mention has been listed for 4 February 2021. This development increases the chances that the contested hearing of these matters may be pushed back beyond May 2021. Defence counsel advised today that he was informed by Sunshine Magistrates’ Court that the earliest date for a contested hearing if the applicant is in custody is now June 2021. The possibility of pre-sentence detention exceeding any sentence of imprisonment imposed on the applicant if convicted is, in my view, a substantial one.[5] This is a weighty factor in favour of bail.
[5]I do not wish to be misunderstood. I am not suggesting that it would not be open to the sentencing magistrate in June 2021 to impose a total effective sentence of imprisonment longer than the pre-sentence detention.
On 16 November 2020, I expressed concern that no drug and alcohol program had been arranged as part of the applicant’s case for bail. The bail hearing was adjourned part heard so that the applicant could try to make appropriate arrangements.
I have now received a report from the CISP[6] Remand Outreach Program (CROP) dated 9 December 2020 indicating that the applicant has been assessed and is ‘recommended for case management by the Sunshine CISP team’ if released on bail. The CROP report advises that the first telephone appointment with a CISP representative will take place tomorrow at 11:00am and that, after an assessment, suitable drug and alcohol treatment will be arranged by CISP. An appointment has also been made on 18 December at 12:30pm with a general practitioner for the applicant to undergo a mental health review.
[6]CISP stands for Court Integrated Services Program.
The applicant has also now furnished the results of a urine screen in respect of a sample supplied on 8 December 2020. The sample was negative for a range of illicit substances, including methamphetamines and cannabinoids.
The applicant has also met with a representative of the Bridge Program, which is a voluntary service. I have received a letter and brochure from that organisation, indicating their readiness to assist the applicant if he contacts them post-release. The assistance offered by the Bridge Program includes ‘drug and alcohol and mental health support’. The applicant has also provided a certificate dated 30 November 2020 in relation to a cannabis course that he completed in custody.
I am satisfied by this material that if the applicant is released on bail, there are appropriate supports organised for him in addition to the support that will be provided by his father. The applicant will appreciate that, if he fully utilises those supports, and complies with all bail conditions, it could have a very positive impact on any sentence he might receive if he is ultimately convicted of the alleged offences. His own long-term self-interest is a powerful incentive for him to participate in drug and alcohol and mental health programs and to comply with his bail conditions.
In my view, this combination of circumstances constitutes exceptional circumstances justifying a grant of bail. I am also of the view that, given the supports now in place and the fact that the complainant is living in New Zealand, that the risks associated with a grant of bail are acceptable if bail is granted on the following strict conditions.
Bail Conditions
(a) He attend the Sunshine Magistrates’ Court on 4 February 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at 4 Grace Court, Lalor in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 10:00pm and 6:00am each day for the duration of bail.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He abide by any Family Violence Intervention Orders currently in place.
(f) He comply with all lawful directions of any officer of the Court Integrated Service Program and attend all appointments as directed by them, or their nominee/s.
(g) He not contact, directly or indirectly, any witness for the prosecution, except the Informant.
(h) He not leave the State of Victoria.
(i) He surrender any passport he may have to the Informant within 24 hours.
(j) He not attend any points of international departure.
0
0
0