Re Menna
[2018] VSC 538
•30 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0194
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Kristian MENNA | |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 August 2018 |
DATE OF JUDGMENT: | 30 August 2018 |
CASE MAY BE CITED AS: | Re Menna |
MEDIUM NEUTRAL CITATION: | [2018] VSC 538 |
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CRIMINAL LAW – Application for bail – Charges of threat to inflict serious injury, possessing a trafficable quantity of unregistered firearms, possessing a firearm whilst being a prohibited person, possessing a firearm with no serial number, possessing cartridge ammunition without a licence – Prima facie entitlement to bail – Unacceptable risk – Surrounding circumstances – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sala | Emma Turnbull Lawyers |
| For the Respondent | Mr S Devlin | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 1 July 2018, the applicant was arrested and charged by police with the offences of threatening to inflict serious injury, possessing a trafficable quantity of unregistered firearms, possessing a firearm whilst being a prohibited person (three counts), possessing a firearm with no serial number (three counts), and possessing cartridge ammunition without a licence.
The charges relate to events alleged to have occurred on 9 June 2018, when the applicant made threats against his ex-partner (‘the complainant’), and on 1 July 2018, when police located a number of firearms in a vehicle in which the applicant was a passenger. The driver of the vehicle, Roderick Conn, was also charged with possession of firearms and was released on bail on 1 July 2018.
The applicant has been in custody since his arrest on 1 July 2018. He has no outstanding matters, and was not subject to any court orders at the time of the alleged offending.
On 20 July 2018, the applicant filed an application for bail at this Court. The application is supported by the affidavit of the applicant’s solicitor, Ellen Murphy, dated 20 July 2018. The applicant was refused bail in respect of the present charges in the Melbourne Magistrates’ Court, on 2 July 2018. The charges are listed for a committal mention on 24 September 2018 at the Melbourne Magistrates’ Court.
The alleged offending
Incident one – 9 June 2018
The applicant and the complainant were former partners who separated in 2016. They have one eight year old daughter who lives with the complainant.
The prosecution case is that at approximately 10.52am on 9 June 2018, the applicant contacted the complainant by telephone to discuss issues regarding their daughter. It is alleged that, whilst on the phone, the applicant became aggressive and said to the complainant, ‘you’re a dog and I should of pulled the trigger when I had that gun in your face’. In that same conversation, the applicant is alleged to have said that he was ‘coming for her’.
The Crown case is that, due to a previous incident where the applicant had produced a firearm and threatened to ‘off’ the complainant, the complainant believed that the applicant intended to cause her serious injury. The complainant subsequently attended Bellarine Police Station and reported the matter.
Incident two – 1 July 2018
At approximately 4.15am on 1 July 2018, police intercepted a half cabin utility vehicle in Wyndham Vale, in which the applicant and the co-accused were travelling. Police observed the applicant sitting in the passenger seat, pushing two bags under his seat.
A search of the vehicle located the following items:
·a loaded .45 calibre pistol in the driver’s door shelf;
·a home-made shotgun in the cavity behind the front passenger seat, which was loaded with a discharged shotgun shell;
·a bag containing shotgun shells under the front passenger seat;
·a bag containing an unloaded .22 pistol and ammunition under the front passenger seat; and
·three receipts in the passenger seat footwell that related to the manufacture of the home-made shotgun.
Police discovered a ‘spent’ shotgun shell left in the chamber of the shotgun.
Analysis of the applicant’s mobile telephone revealed a series of text messages sent between the applicant and the co-accused where the co-accused had written, ‘iv loaded a dozen shells if ya want to go waist them?’ The applicant responded, ‘come get me son’.
The applicant and co-accused were transported to Werribee Police Station where the applicant provided a ‘no comment’ record of interview and was remanded in custody.
The applicable legislation
The application was made on 20 July 2018. It follows that the Bail Amendment (Stage Two) Act 2018, amending the Bail Act 1977 (‘the Act’), applies to this application.
The applicant is prima facie entitled to bail pursuant to s 4 of the Act. This is undisputed by the parties. Nonetheless, pursuant to s 4E of the Act, I must refuse bail if I am satisfied that there is an unacceptable risk that the applicant would fail to surrender himself into custody in answer to his bail, commit an offence whilst on bail, endanger the safety and welfare of any person, or interfere with witnesses or otherwise obstruct the course of justice in relation to himself or any other person. The onus of establishing ‘unacceptable risk’ lies with the respondent.
Pursuant to s 4E(3)(a) when considering whether a risk is an unacceptable risk, I am required to take into account the surrounding circumstances, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Pursuant to s 3AAA(f) of the Act, I am also required to have regard to whether there is a family violence intervention order in force against the accused.
Pursuant to s 3A of the Act, I am required to take into account any issues arising from the applicant’s Aboriginality, including his cultural background, ties to family or place, and any other relevant cultural issue or obligation.
Submissions as to unacceptable risk
The respondent opposes bail on the basis the applicant poses an unacceptable risk of committing an offence whilst on bail, endangering the safety and welfare of the public and interfering with witnesses. In support of these submissions, the Crown notes the applicant has a history of violence and a demonstrated access to firearms.
In her affidavit, the applicant’s solicitor contends he poses no such unacceptable risk, pointing to:
·the availability of suitable and stable accommodation, as he is able to reside with a family friend, Emma Cook, in Ballan. Ms Cook has two young children, aged six and 10, and is aware of the charges against the applicant;
·his employment prospects, noting he is eager to re-engage in gainful employment and has an extensive history working in the transport and logistics industries;
·his proposed engagement with mental health practitioners, submitting he experiences feelings of depression and proposes to make an appointment with a general practitioner to obtain a Mental Health Care Plan should bail be granted; and
·weaknesses in the prosecution case, which I discuss further below.
The applicant also points to the results of his Court Integrated Services Program (CISP) assessment, which recommended the applicant for CISP brief intervention case management by the CISP Remand Outreach Program (CROP) team.
Surrounding circumstances
The applicant’s personal circumstances
The applicant is a 35 year old man of Aboriginal descent. He has two younger brothers and grew up in the Werribee area. His family moved to Geelong when he was 15 years old.
The applicant has worked for trucking and transport companies since his early twenties. He worked full-time for a road freight company for a few months in the beginning of this year and was employed on an ‘ad hoc basis’ by a refrigerator transport company in the months prior to his arrest and incarceration.
The applicant has two daughters, aged eight and 14, from two previous relationships. He maintains a good relationship with his 14 year old daughter who lives with her mother. The applicant has not seen his eight year old daughter since December 2017, and there are no current court parenting orders in place.
He has a criminal history dating back to 2000, including numerous prior convictions for offences of violence, burglary, aggravated burglary, and possession of firearms. Relevantly, his criminal history also discloses other breaches court orders, including two breaches of a Community Based Order in 2001, and a breach of a Suspended Sentence Order which led to the suspended sentence being wholly restored in 2001.
The affidavit of Ella Murphy discloses that at the time of the applicant’s failed bail application, he consented to an intervention order in favour of the complainant.
Nature and seriousness of the alleged offending
The offending alleged against the applicant is serious as it involves a threat to inflict serious injury on a person with whom he has been in a relationship, and the possession of a trafficable quantity of firearms and ammunition for those weapons. Despite the inherent seriousness of these allegations, pursuant to s 4 of the Act, the applicant is prima facie entitled to bail.
Strength of the prosecution case
The applicant submitted there are weaknesses in the Crown case. In respect of the charge of possession of a trafficable quantity of firearms, the applicant argued the facts surrounding the charges do not support a case for trafficking. Rather, it was submitted the weight of the evidence suggested the two offenders were intending to use the firearms for recreational purposes.
The respondent contended the Crown case cannot be categorised as weak. Rather, the respondent submits it is a strong case, noting that at the time of his arrest, the applicant was located in a vehicle with limited cabin space where there were multiple firearms and ammunition. It was argued the homemade shotgun was partially visible to the applicant in the space behind the driver’s seat, and the applicant pushed the bag containing the .22 handgun and ammunition under his seat. The text messages on his phone also indicate an arrangement between the two offenders to use the firearms in the hours before his arrest.
I am not persuaded that the prosecution case in respect of the possessing firearms charges can be described as weak. One view of the evidence, in its circumstantial context, is that the applicant was knowingly involved in an arrangement with the co-offender to use the shotgun to ‘waste’ ammunition. The prosecution case is likely to be that at least one weapon was shot.
No evidence or submissions were advanced to suggest the applicant’s possession of the firearms was for a purpose of any form of commercial movement. I am unable to make any conclusion beyond that the applicant was jointly involved in any activity other than to use the a firearm for ‘recreational purposes’. Further, no evidence was put before me to support the conclusion that the weapons were associated with other forms of criminal activity involving violence that occurred or were planned to occur that night.
The above noted, the applicant’s charges are currently listed for a committal hearing. It may be that the Magistrate hearing the matter will take a different view of the facts presented at that time, and it is not my role to make final decisions about these issues. I note that the applicant did not make any admissions as to possession of any of the firearms, and that his present intention is to defend the charges.
The applicant further submitted the words used in the alleged threat to inflict serious injury were in reference to a previous situation and did not indicate a threat of future action. The respondent submitted that the applicant’s statement to the complainant that he was ‘coming for her’ could not be construed as a reference to the past, but was rather intended to cause her fear that the he would carry out his threat in the future.
I do not find this charge can be described as inherently weak. The prosecution case depends on the complainant’s evidence being accepted. As the case currently stands, I am of the opinion it could be made out on this evidence.
The applicant’s criminal history
The applicant has relevant prior convictions and has previously breached court orders. Most recently, he served a sentence of seven months imprisonment for making a threat to kill while he was a prohibited person in possession of a firearm. The present charge relating to a threat to inflict serious injury, in respect to the same complainant he threatened for which he received the sentence of imprisonment in 2017. These factors are directly relevant to the assessment of unacceptable risk.
Senior Constable Scott asserts in his statement, in respect of the threat made on 9 June 2018, ’the accused has once again threatened to inflict injury to the [complainant], whilst in possession of a firearm’. That assertion appears to form a basis of the submission that the applicant is an ongoing risk to the complainant. However, it does not seem to accurately reflect the state of the evidence before me.
In my opinion, the evidence in this application does not permit a safe conclusion that the applicant’s alleged possession of weapons and ammunition can be associated with an ongoing threat to the complainant on 9 June 2018. It seems to me there is not sufficient evidence to establish a connection between the two events.
I further note that at the bail application before the Magistrate, Senior Constable Scott said there was no evidence the applicant had contacted the complainant on any other occasion since December 2016. I have therefore assessed the level of risk to the complainant in the context of an absence of ongoing and progressive disharmony or acrimony between her and the applicant in the period leading up to 9 June 2018.
Delay
The applicant submits there will likely be a substantial delay in the matter proceeding to trial, particularly due to the likelihood that fingerprint and DNA evidence will not be available at the time of the committal mention on 24 September 2018. The respondent submitted delay is not arguable, given the early stage of proceedings.
There will be some delay in this matter if it proceeds through committal to then be heard in the County Court. It appears reasonably possible that up to 12 months could pass from now until the allegations are heard and disposed of in the County Court. Further, there will be delay in the analysis of items seized for the purpose of assessing the ownership of any fingerprints or DNA. However, it was noted that these matters are all capable of being resolved in the Magistrates’ Court. To that extent, the future direction of these proceedings remains somewhat unclear.
Parity
In respect of parity, the applicant noted his co-accused was granted bail in the Magistrates’ Court. The respondent submitted parity is not relevant, as the applicant’s circumstances are distinguishable from his co-accused, due to his prior convictions for firearm related offences and present charge relating to family violence.
Whether there are conditions that may mitigate risk
The prosecution submitted that no condition can be put in place to mitigate the unacceptable risk of the applicant committing further offences, or remaining an ongoing risk to the welfare of the complainant, should he be granted bail.
The applicant submitted that appropriate geographical exclusion and curfew conditions would mitigate the risk he may interfere with the complainant, and that his proposed place of residence means he would not be near where the complainant resides. Further, the police would be able to visit the applicant at any time of their choosing during curfew periods.
Taking into account all the circumstances, I am of the opinion that strong conditions of bail can be imposed that mitigate the risks asserted by the respondent. I am satisfied that if granted bail, the applicant will live in stable accommodation, and that there are a series of referrals and arrangements in place for him to obtain a mental health plan. My view is fortified by the results of the CISP assessment.
Conclusions
I have had regard to the applicant’s Aboriginality, but note no evidence or submission was advanced that this matter bore significant relevance to my determination.
In all the circumstances, I find that robust conditions will mitigate existing risk factors so that they do not amount to unacceptable risks. The applicant will be admitted to bail on his own undertaking and on special conditions, including that he:
a)reside at a fixed address in Ballan, and not change that address without the leave of the Court;
b)remain at those premises between the hours of 9:00pm and 6:00am each day;
c)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;
d)not contact, directly or indirectly, the complainant and otherwise comply with the terms of the family violence intervention order in respect of the complainant;
e)not attend or be within the area where the complainant resides;
f)report Monday, Wednesday and Friday to a designated Police Station;
g)abstain from the consumption any drug of dependence and submit to drug testing if required to do so by any member of Victoria Police;
h)report to CISP, attend CROP and comply with all lawful directions any officer of CISP and CROP;
i)attend his general practitioner to obtain a Mental Health Treatment Plan; and
j)reappear before this Court for judicial monitoring.
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