Re McAsey
[2019] VSC 88
•21 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2019 0003
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Warren MCASEY | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2019 |
DATE OF JUDGMENT: | 21 February 2019 |
CASE MAY BE CITED AS: | Re McAsey |
MEDIUM NEUTRAL CITATION: | [2019] VSC 88 |
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CRIMINAL LAW – Application for bail – Charges of aggravated burglary and attempted armed robbery – Compelling reason demonstrated through combination of circumstances – Employment history – Financial hardship – Support of wife – Alleged offending not serious examples of offences – Conceded not an unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Desmond | Kurnai Legal Practice |
| For the Respondent | Ms B. Goding | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 27 December 2018, Warren McAsey (‘the applicant’) was arrested and charged with aggravated burglary and attempted armed robbery. The charges arise out of events alleged to have occurred on 22 November 2018.
At the time of the alleged offending, he was on summons in respect of charges of theft (ten counts) and possessing child abuse material. These charges relate to events alleged to have occurred between 1 December 2013 and 31 July 2015, and at the hearing of this application, I was informed that the charge of possessing child abuse material had been withdrawn. The remaining charges are listed for a contested hearing at the Latrobe Valley Magistrates’ Court on 27 February 2019.
The applicant has been in custody since the day of his arrest. On 28 December 2018, he was refused bail at the Latrobe Valley Magistrates’ Court. These charges are listed for a committal mention on 21 March 2019 at the Latrobe Valley Magistrates’ Court.
On 9 January 2019, the applicant applied to this Court for a grant of bail.
The applicable legislation
The applicant is charged with aggravated burglary and attempted armed robbery, both Schedule 2 offences under the Bail Act 1977 (‘the Act’).[1] Additionally, as both are indictable offences, the applicant is alleged to have committed an indictable offence while subject to a summons to answer to a charge for another indictable offence, pursuant to item 1(b) of Schedule 2 of the Act. Therefore, the Court must refuse bail ‘unless satisfied that a compelling reason exists that justifies the grant of bail’.[2] The applicant bears the burden of satisfying the Court that a compelling reason exists.[3]
[1]Bail Act 1977 sch 2 items 22(a)-(b), 31.
[2]Ibid s 4C(1A).
[3]Ibid s 4C(2).
In considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’.[4] Thus, by reason of s 3AAA(1) of the Act, the Court must take into account all the circumstances that are relevant to the matter including, but not limited to, the following-
[4]Ibid s 4C(3).
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i) was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f) whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii) a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged …
If satisfied a compelling reason exists that justifies the grant of bail, the Court must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act.
Pursuant to s 4E(1) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant 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.
In applying the unacceptable risk test, the Court must again consider the surrounding circumstances, and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[5]
[5]Ibid s 4E(3).
Finally, s 1B of the Act provides that:
(1) The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty;
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)Promoting public understanding of bail practices and procedures.
(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).
The alleged offending
At approximately 3:40am on 22 November 2018, the applicant allegedly entered a takeaway store in Morwell, while its two owners were working. He allegedly entered via an unlocked rear door, threw a bag onto the floor, and demanded the female victim ‘put the money in the bag’. He was allegedly wearing ‘something black’ over his face and holding a long black metal pole in a manner that suggested it was a firearm.
Upon realising the item was not a firearm, the male victim said ‘you have got to be fucking joking’ and rushed at the applicant and wrestled him to the ground and toward the rear door. The applicant ran away, leaving behind the metal pole and yelling, ‘I’ll be back.’ This incident was captured on CCTV.
The metal pole was later identified as being the metal arm of a ‘Talon’ brand whipper snipper. Forensic analysis of the pole identified latent fingerprints belonging to the applicant.
On 27 December 2018, police executed a search warrant at the applicant’s premises which located, inter alia, a Talon whipper snipper with a missing shaft, as well as clothing allegedly matching that worn by the offender in the CCTV footage of the incident. The applicant was subsequently arrested and provided a ‘no comment’ record of interview, save to advise police that, separate to the alleged offending, he had disturbed an intruder at his premises a month earlier and later noticed various items missing from his premises.
The applicant
The applicant is 51 years old and identifies as an Aboriginal man. Prior to being on remand, he resided with his wife in Morwell. He has a regular employment history in the electrical industry, and more recently in labour hire. He was due to commence a new contract with a labour hire company at the beginning of this year. It is unclear whether this contract continues to be available to him in the event bail is granted.
The applicant has no history of issues with drug or alcohol use. On 28 December 2018, he attempted to harm himself after being remanded in custody. Prior to this, he had no history of any mental health conditions.
The applicant has no criminal history in Victoria. However, on 14 July 2016 he was convicted of indecently dealing with a child under the age of 16, relating to events that took place in the Northern Territory in 2005. He was sentenced to a 15-month term of imprisonment, suspended for two years. In this regard, I also note he is currently on summons for other charges in Victoria, as above.
The applicant’s contentions
The applicant argues the following matters are established by the evidence, and in combination, demonstrate a compelling reason that justifies the grant of bail.
Financial hardship
If granted bail, the applicant would return to living with his wife, Linda Evans, in their home in Morwell. This property is subject to a mortgage requiring payments of approximately $265 per week. It is submitted it would cause extreme financial hardship if the applicant were to remain in custody, as Ms Evans earns approximately $500 per week working part-time, and is struggling to meet mortgage repayments alongside living expenses.
At the hearing of this application, Ms Evans gave viva voce evidence that she had been forced to adjust her diet to only eat one meal a day due to financial pressures, and was looking at her eligibility for government benefits. Ms Evans also gave evidence that she had spoken to her bank regarding the mortgage repayments, but was informed there was no flexibility and the payments need to be made.
Employment
As above, the applicant was due to commence a new contract with a labour hire company at the beginning of this year. It is submitted that if granted bail, he will immediately register again with this company and wait to be subcontracted out, hopefully again earning at least $500-600 per week.
Special vulnerability
It is the applicant’s first time in custody, which has caused significant stress to the point that he has expressed suicidal thoughts and attempted to harm himself.
Seriousness of offending
Whilst acknowledging the seriousness of the charges against the applicant, it is submitted that the alleged offending are not serious examples of the offences, particularly as no injuries were sustained and no property stolen.
Weakness of prosecution case
It is submitted there are issues relating to the identification of the applicant as the offender. Particularly, it is noted that the prosecution case relies on a single fingerprint found on the alleged weapon,[6] and generic clothing found at the applicant’s premises purporting to match clothing worn by the offender in the CCTV footage. From viewing the footage at the previous bail application, it is submitted that while it still has not been provided to the applicant’s representatives, it appears to be of poor quality.
[6]Notwithstanding that the police summary indicates that there were ‘latent fingerprints’.
Further, the victims are said to have been friends with the applicant and his wife for approximately six years and appear not to have identified the applicant as the offender.
Compliance history
The applicant has complied with all prior conditions of bail, save for one incident of failing to appear at court in the Northern Territory in 2006. In relation to this incident, it is submitted the applicant was unaware of the court date and has since complied with all court imposed orders and conditions.
Remand period likely to exceed any sentence
As the charges are contested, the applicant may spend up to 18 months on remand before the matter proceeds to trial. It is submitted there is a real risk the applicant will spend more time on remand than he would pursuant to a sentence imposed, if found guilty, noting his lack of criminal history and the absence of aggravating features in the alleged offending.
The respondent’s contentions
The respondent opposes bail and submits the applicant has failed to show a compelling reason that justifies the grant of bail. It is noted that the respondent does not contend the applicant is an unacceptable risk, and if granted bail, any risk could be managed by the imposition of strict conditions.
The respondent contends that aggravated burglary and attempted armed robbery are extremely serious offences and the case against the applicant is ‘overwhelming’, noting the CCTV footage and fingerprint identification. It is conceded that neither victim has identified the applicant, but it is argued that this is not surprising given the offender’s face was covered.
Regarding the applicant’s personal circumstances, the respondent notes there is no evidence as to whether his original employment remains available. With regard to the applicant’s history of compliance with court orders, the respondent notes that the applicant is on the National Sex Offenders’ Registry and failed to comply with his current reporting obligations in November 2018 by not updating his place of employment. The respondent otherwise concedes the applicant has not breached any other court orders and has a limited criminal history.
Relevantly, it is also noted that the victims in this matter have no particular opposition to the applicant being granted bail, expressing the view that the applicant is ‘desperate but not dangerous’.
Conclusions
Compelling reason
Considering the material before me and the relevant surrounding circumstances, I have determined the applicant has established a compelling reason justifying the grant of bail, through a combination of circumstances.
In particular, I have had regard to his lack of relevant criminal history, his apparently stable marriage, his employment history, and the fact that he can return to live in the home he purchased with his wife. These are all pro-social factors that when combined, satisfy me that a compelling reason has been proven.
Additionally, I heard evidence from Ms Evans, the applicant’s wife, that they have been in a relationship since 2010 and that the applicant has been a regular financial provider within the marriage. In light of the evidence as to her financial circumstances, it appears there is a risk she will fall into significant distress regarding the couple’s mortgage. It seems evident that if the applicant were to remain in custody for the next 12-18 months and therefore be unable to contribute to the finances, Ms Evans would face tremendous financial hardship.
Regarding the strength of the prosecution case, while it is not weak, it is also not an open and shut case. At this stage, prior to the committal hearing and the evidence being examined, it appears the defence has an arguable case. Further, while the alleged offending appears to have involved a degree of planning, it was rather unsophisticated, and cannot be described as especially serious examples of the two offences charged. If the applicant did commit the acts alleged, it appears he did so in what may be described as desperate circumstances.
Unacceptable risk
While I have found a compelling reason is demonstrated, I must consider the question of unacceptable risk, having further regard to the surrounding circumstances. I note the respondent does not contend that the applicant would pose an unacceptable risk if granted bail.
Having considered the entirety of the circumstances of this application, I am of the opinion that any risk of the applicant being granted bail can be ameliorated to a satisfactory level by appropriate conditions.
Therefore, I will grant the applicant bail with various conditions, including that he:
(a) reside at his specified home address in Morwell, and not change that address without leave of the Court;
(b) remain at those premises between the hours of 10:00pm and 5:00am each day, for the duration of bail, unless in the company of Linda Evans;
(c) report Monday, Wednesday and Friday to the Morwell Police Station; and
(d) not attend or be within 100m of the address of the relevant takeaway premises.
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