Re Nicholson

[2021] VSC 221

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2021 089

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an Application for Bail by NIGEL NICHOLSON

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2021
DATE OF ORDER:	26 April 2021
DATE OF JUDGMENT:	29 April 2021
CASE MAY BE CITED AS:	Re Nicholson
MEDIUM NEUTRAL CITATION:	[2021] VSC 221

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CRIMINAL LAW – Application for bail – Exceptional circumstances made out – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh	Stary Norton Halphen Criminal Lawyers
For the Respondent	Ms A Phelan	Victoria Police

HIS HONOUR:

1. The applicant, Nigel Nicholson, makes application to this Court for bail in relation to a series of matters for which he is currently on remand.

1. The first set of matters relate to informant Detective Senior Constable Skahill (‘the Skahill matter’). Charges that were laid in that matter on 3 April 2019, relating to conduct in 2018.  On 12 November 2018, police executed a search warrant at 1/132 Tennyson Street, Essendon (the applicant’s then address).  Police located and seized five imitation firearms, shotgun ammunition, an ammunition belt, an extendable baton, a cross bow, two slingshots and a firearm.  This led to the applicant being charged with possessing ammunition without a license; being a prohibited person possessing an imitation firearm, five charges; possessing a prohibited weapon without exemption or approval (four charges); and prohibited person possessing a firearm.  That matter has resolved at least in relation to eight of the 11 charges.  It is not absolutely clear as to the fate of the other three charges, but they do not seem to me to create much impediment to how the matter would proceed and be dealt with.

1. The next set of charges were laid on 14 August 2019 by informant First Constable Drayton (‘the Drayton matter’), which relate to the applicant failing to answer bail.  On 12 August 2019, the applicant failed to appear on bail granted in the Skahill matter.  A warrant was issued for his arrest.  He was arrested on 14 August 2019 and charged with the offence of failing to answer bail.  That matter has resolved.

1. The next set of matters relate to 31 March 2020, when there were five charges laid by informant Senior Constable Erasmus (‘the Erasmus matter’).  In relation to those matters, on 26 March 2020 police attended 52 Henshaw Road, Strathmore, to serve a firearms prohibition order on the applicant.  The informant explained that it was an offence to fail to surrender a firearm or firearm related items on service of the order.  At that time the applicant said he did not have any such items.  A search was conducted of the applicant’s bedroom at the premises and they there located a firearms holster, gel blaster ammunition, two scopes, four gel blaster magazines, four stocks, a crossbow, a samurai sword and a taser.

1. In relation to those matters, the applicant was charged with failing to surrender any firearm or firearm related items on service of firearm prohibition order; possession of prohibited weapon without exception or approval (three charges) and committing an indictable offence whilst on bail.  The matter has resolved on the basis of a plea of guilty to one charge of possessing a prohibited weapon without exception or approval, and it is suggested that the remainder of the charges will be withdrawn.

1. The next set of 43 charges relate to informant Senior Constable Gacevski (‘the Gacevski matter’) and alleged offending which occurred on 29 January 2020.  On that date, police stopped a black Audi A3 in Woodland Street, Strathmore.  The applicant was sitting in the front passenger seat, and the co-accused, Steven Standage, was the driver.  Enquiries revealed that the vehicle was stolen, and the applicant and Mr Standage were arrested for theft of a motor vehicle.  Following this, the vehicle was searched and police located the following items in the front passenger footwell:  Ziploc bags containing psilocybin mushrooms and cannabis, a set of digital scales and multiple empty Ziploc bags, two wallets containing forms for identification in other people’s names as well as a false driver’s licence bearing the applicant’s photograph, $2,350 cash in denominations of $50 notes, three knives, two mobile phones and a set of vehicle keys belonging to a Range Rover.  While the applicant was being placed in the police vehicle, a container fell from his pocket which allegedly contained 12 tablets of ecstasy, a tinfoil packet of LSD and four tablets of Viagra.  He had $200 cash in another pocket.

1. The applicant and his father gave consent for a search of the premises at 52 Henshall Road, Strathmore, without a warrant.  The search warrant located the following items:  a gel blaster handgun, a revolver handgun, five gel blaster rifles, an air rifle, assorted identification cards in various names, numerous packets of suboxone and shotgun ammunition.  Outside that address, police located a Range Rover with false registration plates.  The vehicle was able to be unlocked using the keys located during the applicant’s earlier arrest.  Police confirmed the vehicle had been stolen from Cheltenham in June 2019.

1. In relation to these matters, the applicant was charged with: possession of a drug of dependence (six charges); committing an indictable offence whilst on bail (seven charges); theft of a motor vehicle (two charges); possession of prohibited weapon without exception or approval; possession of controlled weapon without lawful excuse, two charges; dealing with property suspected of being the proceeds of crime (two charges); possessing a category E handgun that is not registered; possessing a category A longarm that is not registered; prohibited person possessing a firearm, eight charges; possessing cartridge ammunition without a licence; possessing an imitation firearm without an exemption or approval (six charges); prohibited person possessing an imitation firearm (six charges).

1. It appears that the matter has been resolved to a plea of guilty to possession of a drug of dependence (five charges); committing an indictable offence whilst on bail (three charges); possessing a prohibited weapon without exception or approval; possessing a controlled weapon without lawful excuse; dealing with property suspected of being proceeds of crime; possessing a category E handgun that is not registered; possessing a category A or B longarm that is not registered; theft of a motor vehicle; possessing cartridge ammunition without a licence; and being a prohibited person possessing an imitation firearm (five charges).

1. It is not clear on the material submitted on behalf of the respondent whether Charge 15 in that set of charges, being a charge of dealing with property suspected of being proceeds of crime, has resolved or not.  The applicant regards that charge as having been resolved and to be withdrawn, but nothing turns on that.

1. The last and most recent matters arise on 7 April this year and relate to informant Senior Constable Lozanovski (‘the Lozanovski matter’).  Police executed a search warrant at 22 Palm Avenue, Reservoir, and the applicant was present at that time.  That appears to be the applicant’s present address.  Police located the following:  five Ziploc bags and one plastic wrap believed to contain cannabis, one Ziploc bag containing a white crystal substance believed to be methylamphetamine, a set of nunchucks, a sword, a speargun, an extendable baton, a flick knife and a concealed knife on a keychain, a digital leveller, a rifle buttstock, a home-made firearm and barrel, shotgun shells and a holographic rifle scope.

1. The informant has since identified the digital leveller as having been stolen, together with some power tools, from a motor vehicle in Thornbury in October 2020.  On 14 April, a week after the original search, police located numerous power tools believed to be stolen at the same time as the digital leveller.  Charges have not been laid in relation to that information.  It is anticipated that the applicant will be charged relating to that material.  It forms part of the background but is not essentially part of the material which relates to the present application.

1. The applicant was refused bail in relation to the Lozanovski mater on 7 April 2021, and on that day bail in relation to the other matters that I have outlined was revoked.

1. There is one further set of matters in relation to which the applicant is on summons, related to informant Senior Constable Mion (‘the Mion matters’).  They relate to the events of 10 March 2021.  It is alleged that at 12.45 am on that date the applicant was stopped by police driving a Toyota Hilux with an expired and cancelled Queensland registration.  In the vehicle, police located a butterfly knife, a butterfly fork and an extendable baton.  At the time of the alleged offending, the applicant was on bail with conditions including a curfew between 9.00pm and 6.00am, not to drive a motor vehicle and not to have possession of any prohibited or controlled weapons.

1. In relation to those matters, the applicant has been charged on summons with possession of a prohibited weapon without exemption or approval (three charges), contravening certain conduct conditions of bail, using an unregistered motor vehicle on a highway and driving whilst disqualified.

1. It follows that it is not only in relation to the Mion matters that there are breaches of bail.  Perhaps most significant was the Lozanovski matter of 7 April which is alleged to have occurred while the applicant was on bail for four other matters.  It follows that there was a cascading breach of bail and committing offences whilst on bail.

1. Because of the operation of the Bail Act 1997 (‘the Act’), the consequence of those matters is that the applicant finds himself in a position where he is required to demonstrate exceptional circumstances.[1] This arises by virtue of the proposition that a person who is on bail for a schedule 2 offence who commits another schedule 2 offence then comes into an exceptional circumstance situation. In this case, it really comes about as a direct result of the applicant's further offending whilst on bail. Pursuant to the Act, committing an indictable offence on bail is a schedule 2 offence,[2] and once you have at least two of that series of action, it gives rise to exceptional circumstances.[3]

   [1]Section 4AA(2) the Bail Act 1977.

   [2]Schedule 2 of the Bail Act 1977.

   [3]Section 4AA(2) the Bail Act 1977.

1. It is submitted on behalf of the applicant that there are two significant features of the case.  Principally, it is submitted that the applicant’s medical condition is such that that, of itself, would amount to exceptional circumstances but in particular would amount to exceptional circumstances since any custodial sentence he would be likely to receive might well exceed any time that he would be placed on remand.

1. The applicant is described in the material as suffering from paraplegia, requiring the use of a wheelchair for mobility.  He is assisted by a carer for daily tasks and a registered nurse who attends every two days to change his pressure sore bandages.  He is also assisted by a personal concierge to help him in his attendance for medical appointments.  Ms Ellen Hill, the concierge, has provided a letter which demonstrates the position of the applicant’s appointments as follows:  an abdomen X-ray is now due, a blood test is now due, a gastroenterology appointment was scheduled and has passed, a pre-surgery appointment was scheduled and has passed, a haematology appointment which was scheduled and has passed.

1. It is submitted that in relation to the medical conditions from which the applicant suffers, he will not receive proper and adequate treatment whilst in custody and would not be able to have the appointments set out above rescheduled or the procedures now due take place.

1. It was further submitted on behalf of the applicant that given the resolution and likely resolution of the outstanding matters, it is likely that they can proceed on 3 May 2021 at the Broadmeadows Magistrates’ Court.  Although it is submitted on the applicant’s behalf that he is unlikely to receive a custodial sentence, that is not conceded by the respondent and I would not find that it is unlikely that he would receive a custodial sentence.  On the basis of the whole material and a proper analysis of the offending however, I still regard it as possible, particularly having regard to the applicant’s medical condition.

1. Although the applicant has a criminal history, it is not a particularly significant history relating to offending of this kind.

1. In all the circumstances, because of the applicant’s medical condition in particular, I am satisfied that exceptional circumstances have been made out.

1. If satisfied that exceptional circumstances exist, the Court must apply the unacceptable risk test.[4] Bail must be refused if satisfied by the prosecutor that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.[5]  In applying this test, the Court must again 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 unacceptable.[6]

   [4]Section 4D(1)(a) of the Bail Act 1977.

   [5]Section 4E of the Bail Act 1977.

   [6]Section 4E(3) of the Bail Act 1977.

1. It was submitted by the respondent that the applicant is an unacceptable risk of offending whilst on bail, particularly relating to the possible endangerment to the safety or welfare of any person.  It was further submitted by the respondent that in relation to the ongoing medical treatment, that there is no reason to assume that the medical needs cannot be met adequately in the custodial setting.

1. A further difficulty, from the respondent's point of view, has arisen out of the proposed address at 22 Palm Avenue, Reservoir.  That was an address unknown to the informants in three of the outstanding matters despite there being a bail condition requiring the applicant to notify the change of address, and it follows from what has been set out that some of the offending is committed whilst living at that address.

1. In support of the proposition of unacceptable risk, the respondent relies principally upon the applicant endangering the safety and welfare of any person.  The respondent refers particularly to the offending for which the applicant seeks bail, relating to the possession of firearms and weapons, drugs of dependence, driving whilst disqualified, including whilst on bail with conditions prohibiting him from possessing the items and from driving a motor vehicle.  It was also relied on that the applicant has a criminal history of driving whilst disqualified and further, that the applicant’s offending constituted a number of breaches of bail, including those of contravening a conduct condition, committing an indictable offence whilst on bail, and, indeed, one charge is that of failing to answer bail.

1. The submissions on behalf of the respondent are powerful because the applicant has demonstrated a particular propensity to continue to offend whilst on bail and still subject to stringent bail conditions, many of which he has effectively chosen to ignore.  I am concerned, however, that there are real issues about what treatment he would receive whilst in custody and what opportunity he would have to take up any appointments that could be arranged for him.  Further, as I have said, I think it is open to say that he may not receive a custodial disposition for the matters with which he is charged, in particular because the firearms offending, although there is a large amount of it, it is at the lesser end of offending of its kind.  As put by Mr Marsh, who appeared on behalf of the applicant, this gives the appearance more of the applicant’s, as it were, obsession with firearm-related items than it does to dealing with them in any other way.

1. Under the circumstances, I am satisfied that, with the imposition of appropriate conditions, the applicant can be rendered a not-unacceptable risk, but the applicant must understand that this really is his last chance in relation to what is going to happen to him insofar as bail is concerned.  If he breaches this bail, it will simply be impossible for anyone else to sensibly grant him bail.  In those circumstances the Court is satisfied that exceptional circumstances exist that justify the grant of bail, and it has not been shown the applicant is an unacceptable risk, for the reasons announced this day.

1. The applicant will be admitted to bail on his own undertaking, and on the following special conditions:

(a)   He attend the Broadmeadows Magistrates’ Court on 3 May 2021 for mention 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)  With respect of the matters relating to informant SC Lozanovski, order the abridgment of remand from 17 June 2021 to the 3 May 2021.

(c)   With respect of the matters relating to informant DSC Skahill, order the abridgment of remand from 15 June 2021 to the 3 May 2021.

(d)  He reside at an address known to the Court in Victoria, and not change that address without the leave of the Court.

(e)   He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of bail.

(f)    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.

(g)  He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.

(h)  He provide a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.

(i)     He not contact, directly or indirectly, the co-accused, being Steven STANDAGE, for the duration of the bail period.

(j)     He not contact, directly or indirectly, any witness for the prosecution, except the informant.

(k)  He not leave the State of Victoria.