Re Martinow

[2019] VSC 118

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0018

IN THE MATTER of an appeal by the Director of Public Prosecutions under s 18A of the Bail Act 1977 against an order granting bail to Nathan Martinow

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2019
DATE OF JUDGMENT:	27 February 2019
CASE MAY BE CITED AS:	Re Martinow
MEDIUM NEUTRAL CITATION:	[2019] VSC 118

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CRIMINAL LAW – Appeal by Director of Public Prosecutions against Magistrate’s order granting bail – Whether reasonably open to Magistrate to find exceptional circumstances – Whether Magistrate should have found that the accused was an unacceptable risk – Failure by Magistrate to give reasons – Discretion re-opened – No exceptional circumstances – Unacceptable risk – Appeal upheld – Bail revoked – Section 18A Bail Act 1977 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Gibson SC	Office of Public Prosecutions
For Martinow	Mr S N Andrianakis	N/A

HIS HONOUR:

Introduction

1. This is an appeal by the Director of Public Prosecutions (the ‘Director’)[1] against a decision of a Magistrate on 18 January 2019 granting bail to Mr Nathan Martinow (the ‘Respondent’) who is charged with aggravated home invasion and other offences.[2]  

   [1]The full Grounds of Appeal read as follows:

   [2]The Respondent’s charges are:

   ·     aggravated home invasion with an offensive weapon on 9 September 2018 (Charge 1);

   ·     aggravated burglary with an offensive weapon on 9 September 2018 (Charge 2);

   ·     intentionally causing injury to Nicholas Gold on 9 September 2018 (Charge 3);

   ·     making a threat to kill (two counts – Charges 4 and 5); and

   ·     assaulting Nicholas Gold on 9 September 2018.

1. The circumstances of the alleged offending, which is alleged to have occurred in September 2018, are set out in my earlier judgment revoking the bail of the Respondent’s three co-accused and I do not propose to repeat them here.[3]

   [3]Re Brent Reker, Tara Egglestone and Pierce Williams [2019] VSC 81, [1]–[27].

1. Contrary to s 12A of the Bail Act 1977 (Vic) (the ‘Act’), the learned Magistrate failed to give reasons for his decision granting bail. The Respondent correctly concedes that the consequence of that failure is that the Court’s discretion is reopened and I must now consider the question of bail afresh.

1. Accordingly, the Respondent who is charged with a ‘Schedule one offence’ under the Act must satisfy me that there are exceptional circumstances justifying a grant of bail.[4]  If the Respondent discharges that onerous burden, he is entitled to bail unless the Director satisfies me that the Respondent is an ‘unacceptable risk’.[5]

   [4]Bail Act 1977 (Vic), s 4AA.

   [5]Section 4D of the Bail Act 1977 (Vic) sets out the ‘unacceptable risk test’:

   (1)        A bail decision maker must apply the unacceptable risk test if—

   (a)at step 1 (section 4A) the bail decision maker is satisfied that exceptional circumstances exist that justify the grant of bail for a person; or

   …

   (2)        For the application of the unacceptable risk test, the prosecutor bears the burden of satisfying the bail decision maker—

   (a)        as to the existence of a risk of a kind mentioned in section 4E(1)(a); and

   (b)        that the risk is an unacceptable risk.

   Section 4E states that the bail decision maker must refuse bail if satisfied that there is an unacceptable risk the accused would, if released on bail, endanger the safety or welfare of any person, commit an offence while on bail, interfere with a witness or otherwise obstruct the course of justice in any matter or fail to surrender into custody in accordance with the conditions of bail. The prosecutor bears the onus of proof with respect to this section.

1. Last week I granted the Respondent an adjournment since he did not have representation.  The Director’s appeal in relation to three of his co-accused went ahead and I revoked their bail.  I found that the discretion was reopened since the learned Magistrate did not give reasons for granting them bail and that there were no exceptional circumstances and that even if there were, they were each an unacceptable risk.  It is important to make the point, however, that the Respondent’s bail application has to be considered on its own merits and the outcome of this hearing is not dictated by the decision I made in relation to his three co-accused.

Exceptional circumstances

1. The Respondent relies primarily on family hardship to make out exceptional circumstances.  That hardship has a number of aspects. First, the emotional and financial burden that will be placed on the Respondent’s partner, Ms Nelson, in having to care for three children by herself, one of whom, Harper (aged three), has special needs.  Secondly, the hardship that will be experienced by 11-year-old Sacha, whose mother died from a drug overdose on 18 November 2012.  If the Respondent is remanded in custody, Sacha will have to deal with the “loss” of his other biological parent.

1. No doubt incarceration would impose real hardship on the family, but I do not think it rises to the level of exceptional circumstances which justify the grant of bail.  The evidence adduced by the Respondent does not establish that Harper will miss out on the supports and services that are to be provided to her in due course under the National Disability Insurance Scheme.  Even though Ms Nelson’s mother who lives next door is sickly and Ms Nelson’s 17-year-old daughter is currently completing Year 12, I am not persuaded Ms Nelson will be without any support in trying to juggle part-time work and her children’s needs.  As for Sacha, he will not be placed in the care of a stranger.  Ms Nelson has been his stepmother for several years now.  I was told the Respondent and Ms Nelson have been in a relationship for approximately five years.

Unacceptable risk

1. Even if I am wrong about exceptional circumstances, I am persuaded by the Director’s submissions that the Respondent is an unacceptable risk to fail to appear and to interfere with prosecution witnesses.

1. The prosecution case is a viable one.  If convicted, the Respondent will receive a substantial jail term.  Aggravated home invasion attracts a minimum mandatory term of three years.  It is not suggested there are any special reasons that take the Respondent outside the minimum mandatory term.  The evidence indicates that the Respondent, who has a long criminal history,[6] has a warrant outstanding in New South Wales for alleged drug trafficking.  A relatively recent intercepted conversation between the Respondent and the co-accused Reker indicates that the Respondent has been mindful of that warrant and has deliberately been avoiding New South Wales because of the existence of that warrant.

   [6]The Respondent has multiple convictions from 20 adult court appearances between 1995 and 2014.

1. Finally, there is evidence that the Respondent is a high ranking member of the FINKS, an Outlaw Motorcycle Gang.  He has a ‘one percenter’ tattoo on his leg and there is a picture of him on the FINKS’ Facebook page, downloaded by one of the complainants late last year, which shows him in his FINKS gear.  His association with that organisation – which is banned in South Australia where he lives – means he has at his disposal greater resources than the average accused.  That increases not only the risk of flight, but also the risk of interference with the complainants who are understandably fearful of reprisals from the FINKS if they continue to cooperate with the prosecution.

1. In summary, I am not satisfied on the evidence adduced before me that exceptional circumstances are made out.  Even if I am wrong in that conclusion, I am satisfied by the Director’s submissions and the evidence that has been put before me, that the Respondent is an unacceptable risk to fail to appear and also to interfere with witnesses for the prosecution.  Accordingly, bail is revoked.

1. THAT pursuant to s4A(lA) of the Bail Act 1977, a decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. On the materials before the Court below, the Respondent failed to discharge the onus of satisfying the court of exceptional circumstances. In considering whether exceptional circumstances exist, the learned Magistrate failed to have proper regard to the surrounding circumstances outlined in s3AAA of the Bail Act 1977.
2. THAT on the material before the Court below, the learned Magistrate should have found that there was an unacceptable risk pursuant to s4(2)(d)(i) of the Bail Act 1977 that the Respondent, if released on bail would:

a. endanger the welfare of any person;

b. commit an offence whilst on bail;

c. interfere with witnesses or otherwise obstruct the course of justice whether in relation to herself or any other person;
d. fail to surrender into custody in accordance with the conditions of bail.

3. THAT pursuant to s 12A of the Bail Act 1977, the learned Magistrate should have stated reasons for granting bail in circumstances where the exceptional circumstances test applies.