Re Peirce
[2016] VSC 397
•12 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0086
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by LEX PEIRCE
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 July 2016 |
DATE OF RULING: | 12 July 2016 |
CASE MAY BE CITED AS: | Re Peirce |
MEDIUM NEUTRAL CITATION: | [2016] VSC 397 |
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CRIMINAL LAW – Application for bail – Theft (of motor vehicle) – Handle stolen goods – Theft (from motor vehicle) – Drive with prescribed concentration of drug – Careless driving – Unlicensed driving – Possess drug of dependence – Reckless conduct endangering (serious injury) – Fail to stop a motor vehicle on request – Evade police – Applicant an unacceptable risk of committing further offences whilst on bail – Public safety – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B. Tait | Tait Lawyers |
| For the Respondent | Mr G. Carr | Office of Public Prosecutions |
HIS HONOUR:
The applicant applies for bail on two sets of offences – charges laid by informant Iris on 12 April 2016 (‘the Iris matters’) and charges laid by informant Davies on 28 April 2016 (‘the Davies matters’). A third matter, ’the Burgoyne matter’, which is referred to in the application for bail and in the affidavit in opposition, has been resolved and therefore forms no part of the present application.
The Iris matters
It is alleged that on 25 November 2015 the applicant was driving a stolen silver Holden Commodore along the city‑bound lanes of the Monash Freeway at Mulgrave. The allegedly stolen vehicle was displaying number plates that had been stolen from a different vehicle. The Commodore drifted onto the centre median strip and collided with safety barriers, a light pole, and a large, green, metal storage box that was situated on the median strip. That storage box was then thrown onto the freeway where another car collided with it. The Commodore itself rolled a number of times. The applicant was seriously injured and initially trapped in the vehicle.
Police were at the scene relatively soon after the accident. They located a small quantity of methylamphetamines and an ice pipe in the Commodore. The applicant was behaving irrationally. Once he was released from the vehicle and medicated he became more amenable to treatment. He was dispatched to the Alfred Hospital and placed in an induced coma. He fractured his pelvis, his leg and his arm and he also required surgery. Toxicology from the blood samples taken shortly after the accident revealed that the applicant had 0.24 mg/l of methylamphetamines in his blood.
The Prosecution case is that the Holden was stolen about a week before this incident. It was valued at about $8,000 before being written off as a result of the 25 November collision. The registration plates attached to the Commodore at the time of the collision were stolen about four or five days before 25 November 2015. That is a couple of days after the Commodore was allegedly stolen. I note that whilst the owner of the Commodore reported it stolen, and it is recorded on the LEAP system as such, the owner of the Commodore has not made a statement to the effect that the vehicle was stolen from him. It is the applicant’s assertion that he in fact knew the owner of the Commodore, and had permission to drive it. If the case were dealt with today, the prosecution would not be able to prove that the vehicle was stolen, although, no doubt, it has a strong case on the driving offences.
Senior Constable Iris charged the applicant with 10 offences arising out of the conduct that I have outlined including theft of a motor vehicle, handling stolen goods (two charges), theft from a motor vehicle, driving a vehicle with a prescribed concentration of drug present (two charges), careless driving, unlicensed driving and possession of a drug of dependence.
The Davies matters
On 22 March 2016, police observed a stolen red Holden Commodore bearing an independently stolen number plate parked outside an address known to police in Lalor. The only occupant was seated in the driver's seat. According to police assertions, the police vehicle approached the vehicle with its emergency lights activated. The police vehicle partially boxed in the red Commodore. The two attending police officers say that they obtained a direct view of the person in the driver’s seat and identify the applicant as that person. The applicant admitted to being the driver in a subsequent police interview. It is alleged the engine of the red Commodore revved loudly, and the applicant accelerated towards a police officer who smartly re-entered the police car. The Commodore mounted the gutter, took up a course along the footpath, and caused a pedestrian to take evasive action, while the applicant made a temporary escape.
The applicant maintains that he did not realise that the unmarked police vehicle was, in fact, a police vehicle. There is a dispute of fact as to whether the lights and siren were operating. The applicant also asserts that he did not realise that the plain clothes policepersons were, in fact, police. The applicant was subsequently charged by informant Robert Davies with reckless conduct endangering serious injury, handling stolen goods, failing to stop a motor vehicle upon request, evading police, and unlicensed driving.
The applicant was arrested on 28 April 2016 and after being taken to hospital to investigate a possible seizure he was lodged in custody. He has remained in custody since that day. The Davies matters are set down for a contested hearing on 23 November 2016 at Heidelberg. The Iris matters are set down for contest mention on 4 August 2016 at Ringwood. It is reasonable to assume that one way or another these matters will be dealt with this year. In other words, if this application were to be refused the applicant could expect the matters to be dealt with within six or eight months of being placed into custody.
The applicant was refused bail at the Frankston Magistrates’ Court on 29 April and again on 13 May of this year. On both occasions it was determined that the applicant posed an unacceptable risk of committing offences whilst on bail.
The applicant contends that bail ought be granted with strict conditions, namely that he reside with his parents at an address in Traralgon, that a curfew from 9:00 pm to 6:00 am be imposed and that he present himself at the front door upon request by a police officer, that he not drive a motor vehicle, that he obey lawful directions of his treating doctor, that he not use illicit drugs, and that he notifies the informant of a change of address.
The applicant submits that he is prima facie entitled to bail. There is no onus upon him to show cause or demonstrate exceptional circumstances. I accept this proposition. The onus on this application rests with the prosecution to demonstrate that if released on bail the applicant presents an unacceptable risk that cannot be managed by bail conditions.
The applicant further submits that the prosecution cases against him are weak. I take the view that the prosecution case on theft of the motor vehicle in relation to the Iris matters is weak. Beyond that, I am not satisfied the cases are weak.
The applicant next relies upon the proposition that he was seriously injured in the collision, the subject of the Iris matters, and that he has ongoing medical needs. In my view it is likely that the medical treatment the applicant is receiving in the structured context of his imprisonment is more regular and focused than that which he was receiving immediately pre-arrest, where it seems self‑medication with ice was itself a source of pain relief.
The applicant has been assessed, it is submitted on his behalf, for the CISP Reach Outreach Pilot (CROP) bail support program, and it was proposed that if he was released he would reside with his parents in Traralgon. I have had the opportunity of hearing the applicant's mother, Ms Deborah Peirce. It is impossible not to feel great sympathy for Mrs Peirce who, like any parent, wants the best for a son who has surely caused her great distress over the years. I have formed the view that whilst Mrs Peirce is prepared to do the very best she can to support her son, despite years of having the deal with the problems her he has exhibited, there is very little she or her husband could do to prevent him leaving their Traralgon home if he chose to.
It is submitted on behalf of the applicant that , upon the resolution of these matters, he may not receive a sentence in excess of the time he will have served on remand. This submission must be considered in light of the applicant's prior history. Since 1993, that is since he was 12, the applicant has been a regular participant in the criminal justice system. His adult criminal history includes convictions in alphabetical order for: aggravated burglary, assault, burglary, criminal damage, dealing with suspected stolen property, driving whilst disqualified, family violence, false imprisonment, failing to answer bail on five occasions, fraudulent use of number plates, going equipped to steal, having more than the prescribed blood alcohol content whilst driving, handling stolen goods, intentionally damaging property, making a false report, being a prohibited person possessing a firearm, recklessly causing serious injury, refusing a breath test, robbery, stating a false name when requested, stalking, theft of a motor vehicle on numerous occasions, theft simplicita on numerous occasions, unlicensed driving, and wilfully damaging property. The applicant, as I have observed to Mr Tait, has been before the court to answer hundreds of charges. He has spent significant portions of his adult life in custody and was only recently released from prison shortly before the Iris alleged offending.
Since 2008 his offending has involved serious offences including twice being a prohibited person in possession of a firearm and twice engaging in reckless conduct causing persons to be in danger of serious injury. In addition to the offences that I have enumerated, I calculate that up until 2009 the applicant had nine offences for drive whilst disqualified, nine offences for unlicensed driving and six offences for driving with a blood alcohol content exceeding 0.05%. As Mr Tait pointed out in his very competent submissions, driving is a real problem in this young man’s life. Given that prior history I am unable to accept the submission that time served, or less than that, may well be the likely disposition when the matters are dealt with later this year. Assuming the matters are dealt with in a timely fashion, I regard that submission as optimistic.
Whilst the applicant has been assessed for the CISP bail problem, and his parents are prepared to provide him with accommodation, the major obstacle to this application is the risk that the applicant presents to further offending. I am positively satisfied by the prosecution that the applicant presents an unacceptable risk of further offending and accordingly, despite the undertakings and endeavours that his parents are prepared to offer on his behalf, the application is refused.
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