Re O'Blein

[2009] VSC 6

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IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1455 or 2008

DAVID PETER O’BLEIN	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING	14 January 2009
DATE OF JUDGMENT	14 January 2009
CASE MAY BE CITED AS:	David Peter O’Blein v The Queen
MEDIUM NEUTRAL CITATION:	[2009] VSC 6

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CRIMINAL LAW: Bail — Unacceptable Risk — s 4, Bail Act 1977

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose, SC	Office of Public Prosecutions
For the applicant	Mr K Brandon	Victoria Legal Aid

HIS HONOUR:

1. David Peter O’Blein is a 20 year old prisoner who has been charged with armed robbery, theft and the possession of an unregistered firearm.  The armed robbery is alleged to have occurred at Red Cliffs on 22 August 2008 and the theft involving a compressor to have occurred some time between 8 and 11 August 2008, also at Redcliffe.

1. Because he is being charged with armed robbery, s 4(4)(c) of the Bail Act 1977 applies so that to be granted bail he must satisfy the Court that his continued detention in custody is not justified.  His next Court appearance is at the County Court at Mildura in the sittings commencing on 23 February 2009.  It is expected that he will there plead guilty to these offences and then be dealt with.

1. O’Blein was arrested on 22 August 2008 and subsequently bailed.  He had conditions on that bail which included a curfew and reporting conditions to Ouyen Police.  It also contained a condition which required him to live in Ouyen.  On 5 November 2008, he failed to report to the Ouyen Police and was also in breach of his curfew.  On 7 November, he was the subject of an allegation of theft of a mobile phone from the house in which he lived, and subsequently the subject of an allegation of theft from the Ouyen Club of a charity box containing some $300.00 or thereabouts.  He was arrested on 9 November 2008 and on 10 November, upon appearing before a magistrate in the Magistrates’ Court at Mildura, had his bail revoked.  He now seeks bail, pending his hearing in the County Court.

1. O’Blein  has accrued a number of convictions in the 6 years since he turned about 14, as well as some findings of guilt that did not result in formal convictions.  The offences involved theft, being in possession of proceeds of crime, burglary and, significantly, intentionally causing injury.

1. His personal history is tragic, as is the case with so many young men who find themselves in his position.  He was a ward of the State from a very young age until he turned 18, and, in that capacity, was housed and, ostensibly, at least, cared for by a large number of different people.  A psychologist who has examined him said that he told him that he had been in 80 foster homes!  Whether that is hyperbole or not, it would at least give some indication of his tragic upbringing.  He complained to the psychologist of having been sexually assaulted by his grandfather, and, in more recent times, being the subject of hallucinations.  At the age of 16 he fathered a child with a young woman.  This child died, tragically, very shortly after birth.

1. The result of this is that, by the age of 20, he has accumulated a large number of prior convictions, some of them, if not in the most serious categories, are certainly anti-social behaviour which the community cannot and will not tolerate.

1. The submission put on his behalf is that it is possible that when he goes before the County Court in five or six weeks time, the judge will deal with him by way of youth training centre disposition; that his present conditions are inappropriate at Port Phillip Prison; that he has been the subject of assaults, the latest indeed within the last 24 hours; and that he ought to be bailed in the meantime.

1. It is indeed unfortunate that the system does not provide for someone of his age to be able to be remanded in a youth training centre pending his trial.  But that is apparently the situation.  The difficulty he faces here is that he must demonstrate that his continued incarceration is not justified.  Such justification might be found if one could be satisfied that he did not present an unacceptable risk of doing one or other of the things which remand in custody pending appearance in Court is designed to avoid, namely, the commission of offences, absconding, and interference with witnesses.  There is probably no real problem concerning witnesses, although the police informant seemed to think that there was.  In a case where an accused is going to plead guilty one can hardly think that there is likely to be.  Except where there is a most irrational motive to interfere with witnesses.

1. However, this young man’s history gives one no confidence that he will not offend whilst he is on bail.  Reading his history as a whole, one is impressed by the fact that he appears to have a total lack of self-control and a lack of capacity to take responsibility for, or to foresee the consequences of, his actions.  I consider that  there is a real possibility that, as the day of his ultimate appearance before the Court gets closer, he may do something which might be described as silly, but which might appear to him at the time to be a way out of his problems.  By that I mean he might either enrich himself at the expense of someone else in some illegal way or, indeed, run away.  He is facing the most serious offence on which he has ever been before a Court.  Having regard to his history, I cannot see that the risk of his acting in such a way is not a real one.  In my opinion it is an unacceptable risk.

1. The community must be protected.  Whilst one can have every sympathy with the appalling way in which this young man was brought up by the State, that is not an excuse, even if might be a reason.  In the circumstances I am not satisfied that the applicant has demonstrated that his continued incarceration is unjustified and accordingly bail with be refused.

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