Re Petkowski
[2018] VSC 123
•23 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0053
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by ARTHUR PETKOWSKI
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 March 2018 |
DATE OF JUDGMENT: | 23 March 2018 |
CASE MAY BE CITED AS: | Re Petkowski |
MEDIUM NEUTRAL CITATION: | [2018] VSC 123 |
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CRIMINAL LAW – Application for bail – Charges of kidnapping, false imprisonment and unlawful assault – Whether conditions ameliorate unacceptable risk – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | Victoria Legal Aid |
| For the Respondent | Mr P Pickering | John Cain, Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 4 March 2018, the applicant, Arthur Petkowski, was arrested and charged by police with offences relating to kidnapping, false imprisonment, robbery, intentionally causing injury and unlawful assault. The charges related to events alleged to have occurred on 26 January 2018 when the applicant and two co-accused males assaulted and attempted to kidnap a male victim.
The applicant applied for bail before the Dandenong Magistrates’ Court on 5 March 2018, but that application was refused. On that day the Court ordered that the applicant be remanded for a filing hearing on 9 March 2018. I am told that the hand up brief in the matter is due to be served on 16 April 2018, and that there is a committal case conference listed on 28 May 2018.
The applicant has now been in custody since 4 March 2018. He is 30 years of age.
The applicant now applies for a grant of bail from this Court.
The alleged offending
In summary form, the six charges now before the Court are that the applicant:
a) kidnapped Vien Van-Le;
b) kidnapped Vien Van-Le — a second charge of kidnapping;
c) falsely imprisoned Vien Van-Le;
d) robbed Vien Van-Le of a mobile telephone valued at $500;
e) intentionally caused injury to Vien Van-Le;
f) unlawfully assaulted Vien Van-Le.
The Crown case is that at approximately 2.55pm on 26 January 2018, the applicant and two co-accused approached the victim, who was walking with a friend, Louis Vega, in the vicinity of Temple Court in Noble Park. It is alleged that the group of three assailants then assaulted and attempted to kidnap the victim, Van-Le.
The applicant’s two co-accused were Channphakdhey Vann, and an unknown third person.
The alleged offender Vann called out to the victim’s friend, Vega, before grabbing the victim by his neck, attempting to throw him onto the ground, saying, ‘You owe me money’. Vann then punched the victim in the head with both fists, pushing him and pinning him up against a fence saying, ‘I want my money, get in the car, we are going to get money’. It is alleged that Vann then took the victim’s phone from his pocket and directed the applicant, Petkowski, and the third assailant to assist him in forcing the victim into a motor vehicle that was nearby. This was a grey Holden Commodore station wagon which was owned by and registered to the applicant.
Vann then threw the victim to the ground, punched and kicked him and, with the assistance of the applicant and third man, dragged the victim into the rear driver’s side of the vehicle and attempted to close the door. The victim managed to kick open the door and jump out, but was caught by Vann, who allegedly punched him to the face and again attempted to drag him into the vehicle with the assistance of the applicant and the third man. The victim struggled against the group effort and, despite being kicked and punched, was able to free himself.
The incident was witnessed by a member of the public, Les Borsos, who notified emergency services. Police attended the scene and interviewed the victim, who was later taken to the Dandenong Hospital for observation due to having suffered severe cuts and abrasions to his bare feet. The witness Borsos gave an account suggesting that the victim was being dragged and assaulted by the three males attacking him.
At approximately 6.35am on 4 March 2018, the applicant’s grey station wagon was intercepted by police in Springvale, with the applicant in the passenger’s seat and the applicant’s girlfriend, Nella Betsy, in the driver’s seat. The applicant was arrested and later interviewed by police.
In his record of interview, the applicant is alleged to have made a number of admissions, including a concession that he was assisting Vann, who was trying to kidnap the victim, but that he realised what he was doing and released the victim in circumstances where he ‘could have held him if he wanted to’.
The applicant’s background
The applicant is 30 years old and has a limited criminal history that occurred between 2007 and 2009. His prior convictions involve criminal damage and dishonesty-related offences, with each being dismissed after he had successfully complied with undertakings to the Court. The applicant also has one finding of guilt in 2007 for the use of cannabis. It is common ground that the applicant’s criminal history is limited in seriousness.
The law that applies in this case
Pursuant to s 4(1)(b) of the Bail Act 1977 (‘the Act’), the applicant is prima facie entitled to bail. Notwithstanding this entitlement, pursuant to s 4(2)(d) of the Act, the Court shall refuse bail if 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 members of the public, 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 to this application.
The applicant’s contentions
The applicant relies on the following matters in combination to support his application for bail and also to address suggested unacceptable risk factors.
Involvement in the alleged offending
The applicant argues that the applicant’s role in the alleged offending was not as a principal offender, and that he did not initiate the verbal and physical altercation with the victim. Further, in his police interview he asserted that he withdrew from the joint enterprise. Accordingly it is suggested that the applicant’s role was less serious than the other main offenders. It seems reasonable to accept at this stage that this enterprise in which the three assailants were engaged was not a random attack on a member of the public. Rather, it involved at least some pre-knowledge of the victim, some elements of planning, and deliberate intent to secure the repayments of a debt, at least from one of the assailants, the main offender, Vann.
The availability of stable accommodation and family support
The applicant is able to reside at 3 Bellview Court, Springvale with his mother, Monika Roszkiewicz. The applicant’s mother, in an affidavit dated 6 March 2018, has sworn that she has no prior criminal history; that she is employed full-time as a sales account manager at News Corp; that she is aware of the allegations made against her son and supports his application for bail; that she is willing to provide any such assistance as the Court may require to ensure her son complies with his bail conditions and to ensure his future attendance at Court; and is prepared to give an undertaking to notify the Informant should she become aware that her son is not complying with any bail conditions. The applicant’s mother gave viva voce evidence before me and confirmed the matters in her affidavit, as well as confirming her undertaking to which I have referred.
Financial means
The applicant has received a redundancy package from his former employer, Bradmans Windows and Doors. This was received in November 2017 and he has used this package to financially support himself. It appears, however, that the money may now be exhausted as there were some previous debts that needed to be paid. The applicant has some savings that can be drawn on but these will be limited. Otherwise, the applicant is seeking employment.
The applicant’s mental health
The applicant suffers from depression and anxiety, and, prior to his remand, he was receiving treatment by way of prescription antidepressants through the Athol Road Medical Centre in Springvale.
Limited criminal history
As observed, the applicant has a limited criminal history. The absence of a significant criminal history by the applicant’s age of 30 has some relevance to the assessment of unacceptable risk factors to which I will turn later.
Previous compliance with court orders
The applicant appears to have previously complied with all his undertakings to courts with respect to orders directed towards his continuing good behaviour. These were the outcomes of previous criminal proceedings which he faced.
Suggested deficiencies in the prosecution case
The applicant pointed to deficiencies in the prosecution case to support an argument that some aspects of the Crown case were not particularly strong. However, not much was to be made of this point as the evidence and the way in which the Crown will finally put its case is as yet not clear.
Delay
It is suggested on behalf of the applicant that, as a result of outstanding forensic examinations and the ongoing investigation by the Informant, there will be a significant delay before the applicant’s matter finally comes before the Court. At present, the only listing in the applicant’s matter is for a case conference on 28 May 2018. Beyond that date there is no certainty when the case against the applicant will be finalised. I note in passing that the co-offender Vann appeared at a filing hearing in the Magistrates’ Court on 15 February 2018, at which time orders were made for the service of a prosecution brief on or before 13 March 2018, and a committal mention on or before 11 April 2018. One would hope that at some stage the cases against all co-offenders will marry up and be heard together.
Finally, it is argued for the applicant that there is the strong possibility of delay occurring in the resolution of this case and if left in custody, there is chance that the applicant may receive a non-custodial outcome at the conclusion of the matter.
In summary the applicant concedes that the granting of bail is always attended by an element of risk, but that in this case, given all of the circumstances, that risk can be managed by the imposition of appropriate conditions.
The Crown’s contentions
The Crown opposes bail and submits that the applicant is an unacceptable risk of endangering the safety and welfare of members of the public and interfering with witnesses. It was put by the Crown that there ’are a lot of risk factors’ at play in this case, but that the greatest is the risk of further offending.
The Crown submits that the serious nature of the alleged offending, which occurred in broad daylight, means there is an unacceptable risk of the applicant endangering the safety and welfare of the public. Further, the victim has told police that he is fearful of the applicant and his co-accused, and is concerned that they will seek retribution for his cooperation with the police, should the applicant be released on bail. It is suggested that both the applicant and his co-assailant, Vann, are aware of the victim’s residential address.
While the Crown does not take issue with the suitability of the applicant residing with his mother, the Crown notes that the proposed address in Bellview Court is within close proximity to the victim’s home, and this increases the risk of the applicant either accidentally or deliberately interfering with the victim. As well, it is argued that, in circumstances where the home address of the applicant’s mother is a 12-month rental arrangement paid month by month, the address ‘is a little unstable’.
Further, the Crown alleges that whilst the applicant was cooperative with police in his interview, he provided a version of events which was favourable to himself, and attempted to minimise his role in the alleged offending. The Crown rejects the applicant’s submission that he was not an active participant in the offending, and that he withdrew from the joint criminal enterprise. The Crown also rejects the submission that the Crown case is in some way deficient.
I note that the Informant raised the issue of the applicant being a ‘significant flight risk’ but this particular issue appears not to have been pressed in the course of the hearing before me. Accordingly, I do not act on the basis that it continues to be put that the applicant is a significant risk in not appearing for his trial.
In summary, arguing that there is an unacceptable risk, the Crown puts that the applicant is living at an unstable address; that he will be unsupervised during the time when his mother is at work; that he has no occupation; that he has no regular income; that he will be left to his own devices during the day; and, that he lives close to the victim. Combined, these are risks that should persuade me to deny the application for bail.
Discussion
The respondent opposes bail on the basis of there being an unacceptable risk of the applicant endangering the safety and welfare of members of the public, and interfering with witnesses, if released on bail. In support of the argument, the Crown points to the serious and publicly brazen nature of the alleged offending; involvement in which the applicant appears to have at least partially admitted. He asserted in his police interview that he had withdrawn his involvement from the joint enterprise. However, it is to be observed that he appears to have generally been a willing participant in the overall events, and afterwards has driven himself and the other two assailants at a fast rate of speed away from the scene of the events. To that extent he has contributed to the flight of the offenders from the scene, and their possible apprehension by police.
The Crown clearly makes the case against him that he was jointly involved in the offending, playing a significant, either active or supporting, role in the events. All that observed, the applicant’s precise level of involvement in the events is a matter that I am not in a position to determine as these are questions ultimately for another court to decide.
Whilst pointing to these issues as demonstrating reasons why bail should be refused, the respondent was in my opinion unable to point to any additional persuasive evidence in support of the arguments made, for instance, a significant criminal history of itself, or a history of defiance of previous grants of bail or court orders; a history of previous assaults committed by the applicant; or evidence of threats made towards the victim, or for that matter, other people. He appears to have been an offender of this kind for the first time, and further, as is pointed out, the period since his arrest has been his first time in a custodial setting.
On the other hand the applicant points out that he is not in an exceptional circumstances or show cause situation, and accordingly the presumption of bail applies. Additionally, he points to the factors I have noted above, in particular the availability of stable accommodation; the applicant’s good work history; the willingness of his mother to support him and supervise him; his limited previous criminal history and his history of compliance with previous court orders; unresolved conclusions about his level of involvement in the actual offending; the possibility of a significant delay before the matters become resolved; and, the possibility that the applicant may receive a non-custodial penalty.
The applicant argues that there should be a grant of bail. He points to the availability of a strong set of special conditions which the applicant is prepared to adhere to in order to ameliorate the suggested unacceptable risk factors, and to ensure his continued good behaviour whilst on bail.
Conclusion
In the circumstances, and having weighed the evidence and the submissions from both parties, I have decided that bail should be granted. The respondent has not persuaded me that there exist such unacceptable risk factors that would cause me to deny the application for bail. Accordingly, the applicant will be granted bail, but with special conditions that in my opinion adequately ameliorate potential risks that might follow upon the grant of bail, being that the applicant:
(a) reside at 3 Bellview Court, Springvale (the ‘residence’);
(b) remain at the residence between the hours of 9:00pm and 6:00am each day for the duration of bail, except in the company of his mother;
(c) present himself at the front door of the residence during those curfew hours if and when called upon by a member of Victoria Police to do so;
(d) attend upon Springvale Police Station every Monday, Wednesday and Friday between the hours of 7:00am and 8:00pm and report to a member of Victoria Police;
(e) not contact or attempt to contact, directly or indirectly, any witness for the prosecution, except the Informant Detective Senior Constable Johnstone or her nominee;
(f) not contact or attempt to contact, directly or indirectly, any of the co-accused, including Channphakdhey Vann;
(g) not contact or attempt to contact, directly or indirectly, Vien Van-Le;
(h) not attend any place at which Vien Van-Le works or resides;
(i) surrender any passport he may have to the Informant within 24 hours;
(j) not leave the State of Victoria;
(k) not attend any points of international departure.
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