Re Kelly
[2017] VSC 99
•10 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0033
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an Application for Bail by BRETT KELLY |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 March 2017 |
DATE OF JUDGMENT: | 10 March 2017 |
CASE MAY BE CITED AS: | Re Kelly |
MEDIUM NEUTRAL CITATION: | [2017] VSC 99 |
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CRIMINAL LAW – Bail – Kidnapping, false imprisonment, making threat to kill, intentionally causing injury, recklessly causing injury, theft, trafficking drug of dependence, possessing drug of dependence, assault in company and using dangerous article – Show cause situation – Serious offences – No previous history of violence – No negative bail history – Significant factors supporting grant of bail subject to strict conditions – Bail granted subject to strict conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P A D’Arcy | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S J Tovey | Tony Hargreaves & Partners |
HIS HONOUR:
The applicant is currently facing charges of kidnapping, false imprisonment, making a threat to kill, intentionally causing injury, recklessly causing injury, theft (motor vehicle), theft (mobile phone and personal cards), trafficking a drug of dependence (cannabis), possessing a drug of dependence (cannabis), assault in company and using a dangerous article. Save for the drug charges, the applicant’s charges are alleged to have arisen out of circumstances that occurred on 27 and 28 November 2016. The drug charges relate to what was allegedly found, upon the execution of a search warrant, at the applicant’s home on 2 January 2017.
The applicant was arrested on, and has been in custody since, 13 January 2017. On 24 February, he filed an application for bail in this Court. The applicant accepts that, by reason of the operation of s 4(4) of the Bail Act 1977, he is in a ‘show cause situation’. That is, in this case, the Court must refuse bail unless the applicant ‘shows cause why his detention in custody is not justified’.
The alleged offending
The Crown case is that on 27 November 2016, the applicant and two co-offenders pulled the complainant, HF, out of his parked car and forcibly abducted and physically assaulted him. The complainant was attacked with what he then believed to be a taser, but what police allege was in fact a black-coloured, automatic-igniting, ‘pen’-style, blow torch. It is also alleged by the Crown that the complainant was, at one stage during the assault, struck to his head with a knife, and was also punched, kicked, bound, gagged and burnt with a cigarette. The complainant was ultimately left bound and gagged in the closed boot of his own car, which was then abandoned by the applicant and his co-accused. The complainant’s mobile phone and cards were taken.
The Crown case is that, prior to the alleged offending, the applicant was known to the complainant. At the time of the alleged offending, the complainant recognised the applicant as being one of his three assailants. There is also DNA evidence which is said to link the applicant to the alleged offending just described.
On 2 January 2017, a search warrant was executed at premises in Heidelberg where the applicant resided with his wife and their two children. The search located, amongst other things, two 2 litre containers containing dried green vegetable matter said to be cannabis (272.8 grams).
The applicant’s background
The applicant is 30 years of age. He is married with two children, aged six and eight.
The applicant was born in New Zealand and arrived in Australia in 2012. His entire family now resides in Victoria. The applicant’s father is an IT consultant, and his mother is a medical scientist.
At the time of his arrest, the applicant was employed as a mechanic at a business with premises in Heidelberg. The applicant had been in this employment for five years. He worked five to six days per week earning approximately $700 per week.
While the applicant has no prior criminal history in Australia, he has a prior criminal history in New Zealand spanning the period from 2003 to 2009. During that period, the applicant was convicted of one count of burglary (2003), one count of offensive behaviour (2003), one count of wilful damage (2003), one count of drink-driving (2004), one count of breaching a local liquor ban (2004), one count of theft (2004), one count of breaching a community work order (2005), one count of driving in a dangerous manner (2008) and one count of cultivating cannabis (2009). The applicant has no history of violent offending, interfering with witnesses or failing to appear at court.
History of the present proceeding
The primary offending occurred on 27 and 28 November 2016. On 31 December 2016, the applicant left Victoria for a holiday in New Zealand. The applicant was due to return on the night of 13/14 January 2017.
One of the applicant’s co-accused was arrested and remanded on 2 January 2017. The second co-accused, was arrested on 9 January 2017. On that day, the applicant telephoned his solicitor and engaged him to act on the applicant’s behalf and to organise a time to meet and then attend a police station for his arrest and interview. As the applicant was due to arrive on the night of Friday 13 January 2017, 9:00 am on Monday 16 January 2017 was arranged to be the time for a conference prior to attending at a police station.
On 9 January 2017, the applicant’s solicitor made contact with the police and said that he would attend with the applicant at midday on 16 January 2017. The applicant arrived back in Victoria on the night of 13 January 2017. He arrived with his family (wife and two children), and was arrested at the airport.
The applicant made a bail application on Saturday 14 January 2017. This application was refused. At a filing hearing on 18 January 2017, orders were made requiring the hand-up brief to be served by 28 February, with a committal mention being fixed for 11 April.
On 27 January 2017, the applicant consented to an order that he provide a DNA sample.
On 2 February 2017, the applicant made a further bail application on the basis of new facts. The new facts and circumstances for this application were support from the Court Integrated Support Program (CISP) and the existence of a rehabilitation program that had been organised by the applicant’s mother at St Vincent’s Hospital. Notwithstanding the new facts, this bail application was also refused.
The applicant’s contentions
The applicant contends that the following matters are established by the evidence, and show cause why the applicant should be granted bail:
(a) the applicant has a stable, static address in Heidelberg;
(b) the applicant has stable employment in Heidelberg;
(c) the applicant has financial obligations in supporting his wife and two young children;
(d) the applicant returned to Australia from holiday and organised an appointment with police to surrender himself for arrest;
(e) the applicant has been assessed as a suitable candidate for the CISP program;
(f) the applicant has further rehabilitation available through the St Vincent’s Department of Addiction Medicine;
(g) the applicant has strong family support and motivation;
(h) the applicant has a limited prior criminal history;
(i) the applicant has no prior criminal history for violence;
(j) the applicant has no negative bail history;
(k) there is a potential for delay given the uncertainty of time for the provision of forensic evidence;
(l) there is a capacity for this Court to lay down appropriate and strict conditions of bail such as compliance with rehabilitative services, exclusions, non-associations and reporting conditions.
Additionally, the evidence given on this application by the applicant’s mother and father included undertakings by them that, in the event bail was granted, they would ensure that the applicant complies with any bail conditions that might be ordered, and that they would also notify the informant in the event that the applicant failed to comply with any condition of his bail.
The respondent’s contentions
The respondent opposes bail. The respondent notes that the applicant is in a show cause situation after utilising an offensive weapon during the commission of an indictable offence — namely the blow torch. The respondent contends that the applicant is also an unacceptable risk, having been charged with serious indictable offences and common law offences including kidnapping, false imprisonment, intentionally causing injury, trafficking and possessing cannabis and theft.
Additionally, the respondent notes the existence of the applicant’s prior convictions in New Zealand. Further, it is said that, given the traffickable quantity of cannabis located at the applicant’s premises, investigators are concerned that the applicant has cultivated, and may in the future cultivate, cannabis (given that he has the means and the equipment and a prior conviction for cultivation).
The respondent’s position is that the case against the applicant is a strong one (although this is contested by counsel for the applicant), and that the applicant is likely to receive a significant term of imprisonment if found guilty. The respondent submits that the accused is an unacceptable risk to the safety and welfare of the complainant and witnesses, given the applicant’s alleged offending occurred as a result of an apparent $2000 debt, in circumstances where the complainant will say that he agreed to settle the debt by the provision of his motor vehicle.
Analysis
There is considerable force in the respondent’s submissions. The charges the applicant is facing are very serious. Moreover, if bail is granted, the risk of the applicant committing further offences while on bail, given his earlier history, is not insignificant. While there is also a risk of the applicant interfering with witnesses, I think this is less likely having regard to the fact that the complainant knows the applicant and would likely report any contact with the applicant to police. Any such incident would almost certainly result in the applicant’s immediate arrest and detention. The applicant can be in no doubt about that.
As to the applicant’s risk of not answering bail, in my view this can be managed by an appropriate surety and strict bail conditions. Moreover, it is to be observed again that the applicant has no history of failing to answer bail.
Similarly, in my view, the risks of the applicant committing further offences or interfering with witnesses are capable of being managed to the point where they may be regarded as being not unacceptable. The means by which this can be achieved is again by the imposition of strict conditions on any bail granted. I am fortified in this view by the applicant’s lack of prior convictions for violence.
As to the matter more generally, in my view there is also considerable merit (and potential benefit for both the applicant and the community) in addressing the applicant’s drug issues now rather than later.
Having regard to the applicant’s stable personal circumstances and employment, the considerable support now being offered by his parents, the fact that he has been assessed as a suitable candidate for the CISP program, the undertakings of the applicant’s parents and the applicant’s limited prior criminal history to which I have already referred, I have concluded that the applicant has shown cause why bail should be granted. As I have already said, however, such bail can only be granted upon the provision of an appropriate surety, and upon strict conditions that will ameliorate such risks that exist of the applicant not answering bail, reoffending while on bail, or interfering with witnesses.
The applicant will be admitted to bail on his own undertaking, with one surety in the sum of $ 15,000[1] on the following conditions:
[1]I do not propose to set out the evidence of the applicant’s parents’ financial circumstances that has led me to this figure as being the appropriate figure. It is sufficient in these reasons to say that this evidence was, very fairly, not disputed by the respondent, and that I have accepted the evidence.
1. The applicant is to reside at his current address in Heidelberg.
2.The applicant is to notify the informant within 24 hours of any proposed change of address.
3.The applicant is to attend the Court Integrated Services Program (CISP) immediately after release and thereafter follow all lawful directions made, including any treatment, counselling or supervision as recommended by CISP.
4.The applicant, within seven days of release, is to attend upon his general practitioner for referral to the St Vincent’s Department of Addiction Medicine, and thereafter is to accept any and all recommendations for treatment made by that department.
5.The applicant is to be within his place of residence between the hours of 10:00 pm and 6:00 am unless in the company of his wife.
6.The applicant is to present at the front door of his premises upon request by police during curfew hours.
7.The applicant is to surrender all passports held by him to police and not to apply for any other passport.
8.The applicant is to report to the officer-in-charge of the Heidelberg police station, or his or her nominee, once every day between the hours of 9:00 am and 9:00 pm.
9.The applicant is not to leave the State of Victoria.
10.The applicant is not to attend or approach any points of international departure.
11.The applicant is to abstain from possessing or using any drug of dependence.
12.The applicant is not to have any contact with either of his co-accused.
13.The applicant is not to contact or approach any witnesses for the prosecution, save for the informant or his nominee.
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