Re Pritchard
[2024] VSC 133
•15 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0309
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by FRANK PRITCHARD |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2024 |
DATE OF RULING: | 15 March 2024 |
CASE MAY BE CITED AS: | Re Pritchard |
MEDIUM NEUTRAL CITATION: | [2024] VSC 133 |
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CRIMINAL LAW – Bail – Serious offending – Charge of attempted murder – Schedule 1 offence – Requirement to show exceptional circumstances – Strength of prosecution case –Suitability of available accommodation – Family violence risks – Availability of treatment and support services – Exceptional circumstances not established – Applicant an unacceptable risk – Bail refused – Bail Act 1977 (Vic), ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | V Peters | Bowler & Co |
| For the respondent | F Holmes | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
On 26 February 2024, a notice of intention to make an application for bail was filed on behalf of Frank Pritchard (“Pritchard”). Pritchard was arrested and remanded into custody on 30 April 2023 in relation to offending alleged to have occurred on that date and the previous evening. The charges against him include:
(1)Attempted murder, contrary to section 321M of the Crimes Act 1958 (Vic).[1]
[1]This was referred to as the head charge by the parties during oral argument.
(2)Causing serious injury intentionally, contrary to section 16 of the Crimes Act.
(3)Causing serious injury recklessly, contrary to section 17 of the Crimes Act.
(4)Causing injury intentionally, contrary to section 18 of the Crimes Act.
(5)Causing injury recklessly, contrary to section 18 of the Crimes Act.
(6)Two charges of assault, contrary to section 31 of the Crimes Act.
(7)Two charges of theft, contrary to section 74 of the Crimes Act.
(8)Contravening certain conduct conditions of bail, contrary to section 30A of the Bail Act 1977 (Vic).
(9)Three charges of committing an indictable offence whilst on bail, contrary to section 30B of the Bail Act.
(10)Robbery, contrary to section 75 of the Crimes Act.
(11)Two charges of threats to kill, contrary to section 20 of the Crimes Act.
(12)Possessing a drug of dependence, namely heroin, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(13)Possessing a drug of dependence, namely methylamphetamine, contrary to section 73 of the Drugs, Poisons and Controlled Substances Act.
(14)Possessing a controlled weapon without lawful excuse, contrary to section 6 of the Control of Weapons Act 1990 (Vic).
(15)Giving a false name to police, contrary to section 456AA of the Crimes Act.
(16)Three charges of dangerous driving, contrary to section 64 of the Road Safety Act 1986 (Vic).
(17)Driving whilst disqualified, contrary to section 30 of the Road Safety Act.
This is Pritchard’s first application for bail in relation to the alleged offending on 29 and 30 April 2023. These charges were the subject of a contested committal hearing in the Melbourne Magistrates’ Court on 11 December 2023. Pritchard has been committed to stand trial in this court.
B. Background
B.1 Applicant’s personal circumstances
Pritchard was born in Samoa on 9 March 1981 and is currently 43 years of age. He was 42 years of age at the time of the alleged offending.
At 7 years of age, Pritchard emigrated from Samoa to New Zealand with his family. In 2009, he moved to Australia with his partner. The couple purchased a home together and had 2 children. However, their relationship broke down approximately 3 years ago following the death of Pritchard’s father.[2]
[2]There was some inconsistency in the evidence as to the date of the death of Pritchard’s father. The Court Integrated Services Program report dated 8 March 2024 filed in support of Pritchard’s application for bail suggested Pritchard’s father passed away in 2017.
The death of Pritchard’s father has been described as a “destabilising event” in his life. Pritchard had cared for his father while his father was terminally ill. It was during this time that Pritchard began drinking heavily and abusing methylamphetamine, purportedly to maintain mental alertness throughout the day. His drug and alcohol abuse escalated significantly following the death of his father and the breakdown of his relationship with his long-term partner. Not long after his father’s death, Pritchard moved out of his family home into shared accommodation and later became homeless. He subsequently moved in with his mother. He has not maintained any form of gainful employment since the death of his father and has not seen his children since Christmas 2022.
Pritchard is the subject of a family violence intervention order arising from an incident which is alleged to have occurred on 4 February 2023, involving his former partner. Pritchard’s former partner and children are listed as affected family members in respect of that order.[3] As a result of the alleged offending in this proceeding, Pritchard is also now the subject of a second family violence intervention order. His mother’s partner, Gheorghe Dreghici (“Dreghici”), is listed as the affected family member in respect of that order. Under the terms of this second order, Pritchard is prohibited from being within 200 metres of Dreghici’s address and within 5 metres of Dreghici’s person.
[3]The order expired on 11 January 2023. However, Pritchard’s former partner applied to have the order restored due to her safety concerns arising out of the alleged offending the subject of this proceeding. The order was granted, however, it has not yet been served on Pritchard. The order will remain in force until 31 December 2030.
Pritchard’s criminal history includes offending involving driving under the influence of alcohol and threats to inflict serious injury. At the time of the alleged offending the subject of this proceeding, Pritchard was on bail in respect of other indictable offences.
B.2 Alleged offending
Pritchard was living with his mother and Dreghici at the time of the alleged offending. At around 9.00pm on the evening of Saturday, 29 April 2023, Pritchard returned home from an outing with his brother. He was heavily intoxicated and incoherent when he spoke. Pritchard’s brother left him on the front doorstep. Pritchard’s mother was away visiting family in New Zealand at the time and so Dreghici, the only person present at the home, assisted Pritchard to his bedroom. Approximately 15 minutes later, Dreghici heard loud noises coming from the bathroom area, he went to investigate and was allegedly told by Pritchard to go back to bed.
Upon returning to his bedroom, Dreghici was approached by Pritchard who was holding a kitchen knife. Pritchard allegedly threatened to kill Dreghici, before stabbing him 6 times in the upper torso and abdomen area. Dreghici fought Pritchard off and sought refuge at a neighbour’s house. He was later taken to the Royal Melbourne Hospital for treatment of his injuries. Closed-circuit television footage captured moments after the stabbing shows Pritchard getting into Dreghici’s gold Holden Commodore and driving away from the scene.
Later on the evening of 29 April 2023, at approximately 9.39pm, and whilst driving Dreghici’s Holden Commodore, Pritchard stopped at a set of traffic lights on the corner of Heatherton Road and Stud Road in Dandenong. A food delivery driver, who was on his way to make his next delivery, had also stopped at the intersection in his vehicle. Pritchard allegedly exited Dreghici’s Holden Commodore, opened the passenger door of the food delivery driver’s vehicle, sat down in the passenger seat and demanded money from the food delivery driver and threatened to kill him. Pritchard allegedly punched the food delivery driver in the face and stole $150 cash from his vehicle, before returning to Dreghici’s Holden Commodore and driving away.
Between 9.52pm and 9.56pm on 29 April 2023, Pritchard was captured by speed cameras driving in Dreghici’s Holden Commodore in the Domain Tunnel in Melbourne. He was travelling at speeds in excess of 140 kilometres per hour, in an 80 kilometre per hour zone.
At approximately 11.00am on Sunday, 30 April 2023, Pritchard was arrested in the suburb of Albion. Pritchard was approached by police and allegedly provided them with a false name of “David Soula”, before attempting to leave and walk towards Dreghici’s Holden Commodore. Dreghici’s Holden Commodore was subsequently searched and blood was located throughout the interior and exterior of the vehicle. In addition, Pritchard’s duffle bag found in the vehicle was seized. The contents of the bag included an assortment of clothing items, miscellaneous items and 7 zip lock bags, containing what police believed to be heroin and methylamphetamine.
Upon his arrest, blood smears were also observed on Pritchard’s inner left ankle and were later swabbed. The swabs were subsequently tested and returned a positive result matching Dreghici’s blood. Further forensic testing of the kitchen knife located at the crime scene also returned a positive match, identifying Pritchard’s DNA[4] on the handle of the knife.
[4]That is, deoxyribonucleic acid.
C. Legal principles
In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B, including the importance of maximising the safety of the community, the presumption of innocence and the right to liberty.[5]
[5]See Re Ceylan [2018] VSC 361, [31]-[32] (Beach JA).
Pritchard has been charged with an offence listed in Schedule 1 to the Bail Act.[6] It was common ground that Pritchard must therefore demonstrate that exceptional circumstances exist that justify the grant of bail.[7]
[6]Namely, attempted murder: see Bail Act, sch 1, items 2, 12.
[7]Ibid, s 4AA(1).
The phrase “exceptional circumstances” is not defined in the Bail Act. In order to be “exceptional”, the circumstances relied upon must be such so as to take the case out of the normal and justify the granting of bail.[8] Although high, this is not an impossible standard to reach.[9] As observed in Woods v Director of Public Prosecutions concerning the meaning of the term:[10]
[I]t has been held that “there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before those circumstances can be characterised as exceptional”.[11] The category is not closed. It was held by Warren J that “the hurdle is a high one, but … should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail”.[12]
An individual circumstance, or combination of circumstances, can constitute exceptional circumstances.[13] … [I]t is the (oft-cited) view of Vincent J in Moloney that the court must be persuaded that, viewed as a whole, the circumstances are exceptional “to the extent that, taking into account the very serious nature of the charge … the making of an order admitting the person to bail would be justified”.[14] This “appears to be a question of degree” in each individual case.[15]
[8]Re Brown [2019] VSC 751, [65] (Lasry J), citing Re Sam [2017] VSC 91, [22] (Beach JA). See also Re Strachan [2021] VSC 538, [27] (Lasry J).
[9]Ibid, citing Armstrong v The Queen [2013] VSC 111, [31] (Lasry J).
[10](2014) 238 A Crim R 84, 97-98 [38]-[39] (Bell J) (original citations). While substantial reforms were made to the Bail Act on 1 October 2018, the expression “exceptional circumstances” remains. See also Re CT [2018] VSC 559, [64] (Champion J).
[11]Re Scott [2011] VSC 674, [14] (T Forrest J). See also R v Tang (1995) 83 A Crim R 593, 596.7 (Beach J); Re Muhaidat [2004] VSC 17, [13] (Kaye J); Re Dalton [2013] VSC 690, [49] (Kaye J).
[12]Re Whiteside [1999] VSC 413, [10] (Warren J).
[13]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2; Re Whiteside [1999] VSC 413, [13]; Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 215 [19]-[20] (Coldrey J); Armstrong v The Queen [2013] VSC 111, [31]-[32].
[14]Re Moloney (Supreme Court of Victoria, Vincent J, 31 October 1990) 1-2.
[15]Director of Public Prosecutions v Cozzi (2005) 12 VR 211, 216 [25].
If satisfied that exceptional circumstances exist, the court must then consider whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.
Bail must be refused if the court is satisfied that there is an unacceptable risk that an applicant would, if released on bail, endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail, notwithstanding that the exceptional circumstances test has been met.[16] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[17]
[16]Bail Act, s 4E(1)(a).
[17]Ibid, s 4E(2).
Both in considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account relevant surrounding circumstances.[18] Such surrounding circumstances include, but are not limited to, the matters listed in section 3AAA(1) of the Bail Act, namely:
[18]Ibid, ss 4A(3), 4E(3)(a).
…
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
...
(f)whether there is in force—
(i) a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii)a recognised [domestic violence order] made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
…
(i) the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
In assessing risk, the court must consider whether there are conditions of bail that may be imposed to mitigate the risk.[19] In addition, when considering the release of an accused charged with a family violence offence, the court must consider whether there would be a risk that the accused would commit family violence and whether the risk could be mitigated by the imposition of a condition of bail or the making of a family violence intervention order.[20]
[19]Ibid, s 4E(3)(b).
[20]Ibid, s 5AAAA(2).
D. Submissions
In support of a grant of bail, it was submitted on behalf of Pritchard that exceptional circumstances were established by the combined weight of several factors, namely:
(1)The availability of stable accommodation at Pritchard’s brother’s residence.
(2)The availability of bail support services, namely, the Court Integrated Services Program conducted by the Remand Outreach Program (“the Services Program”). The Services Program involves 1 month of telephone support, which would allow for the follow up of referrals and supports arranged on Pritchard’s behalf.
(3)The delay before the matter is listed for trial.
(4)Pritchard, who is not an Australian citizen, may be liable to be deported from Australia.
(5)Pritchard has found stable and consistent employment in the concreting industry, which may begin immediately upon his release from custody.[21]
[21]In this regard, it is noted that no evidence of an offer of employment was provided to the court.
In relation to the strength of the prosecution case, there was no dispute that Pritchard stabbed Dreghici, however, it was submitted the acts were committed in a drunken state and a state of severe grief, and that Pritchard’s mental condition was such that his conduct was involuntarily. It was submitted that Pritchard needs to “build bridges” with his family, in particular, his brother, his mother, his former partner and his children.
It was also submitted on behalf of Pritchard that it would be possible to sufficiently mitigate any risk associated with a grant of bail by the imposition of the following conditions of bail, namely that Pritchard must:
(1)Reside at the nominated static address, being his brother’s address (“the Residence”).
(2)Comply with a curfew between the hours of 9.00pm and 5.00am (“the Curfew Hours”).
(3)Present himself at the front door of the Residence during the Curfew Hours if and when called upon by a member of Victoria Police to do so.
(4)Report to his local police station on a daily basis.
(5)Attend judicial monitoring as required.
(6)Abide by the lawful conditions of the Services Program.
(7)Not contact any prosecution witness.
(8)Abide by any existing intervention orders.
(9)Surrender his passport.
Further, it was submitted on behalf of Pritchard that participation in the Services Program would help mitigate any risk associated with a grant of bail. The Services Program report dated 8 March 2024 outlined that if Pritchard were granted bail, he would attend a further assessment in relation to substance abuse with an accredited worker, contact his general practitioner for a pharmacotherapy, medical and mental health review, contact Life Supports for appointments and enquiries relating to anger management courses, and would be supported in a referral to gambling support services in his local area.
In response, the prosecution submitted that Pritchard had failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances. However, even if the court were so satisfied, it was submitted that Pritchard presented an unacceptable risk of endangering the safety or welfare of others; committing an offence while on bail; interfering with witnesses; and failing to surrender into custody in accordance with the conditions of bail.
E. Consideration
E.1 Exceptional circumstances
I accept the prosecution’s submission that Pritchard has failed to discharge his burden of satisfying the court as to the existence of exceptional circumstances. The submissions made on Pritchard’s behalf failed to address the relevant authorities or the test necessary to establish exceptional circumstances. In my view, nothing set out above takes this matter “out of the ordinary” in the relevant sense.[22]
[22]See par 16 above.
Turning to some of the surrounding circumstances, including those outlined in section 3AAA of the Bail Act, Pritchard is charged with serious offences, including attempted murder and causing serious injury intentionally. These offences attract heavy maximum penalties. As to the strength of the prosecution case, it appears to be strong in circumstances where there is no dispute between the parties that Pritchard committed the acts alleged. Although his submissions appear to suggest he was in such an intoxicated and grief-stricken state that he was not conscious of his actions, there was no medical evidence filed in support of this submission.
I also note that Pritchard has a criminal history and was on bail at the time that the alleged offending took place. Further, I note that in relation to the suggestion that there has been delay, no submission was put before the court that there would be exceptional delay with respect to the progress of this matter. As the matter has been listed before this court, I can simply say that I am not aware of any such substantive delay being likely to occur.
Furthermore, although the prospect of deportation may be a relevant mitigating factor in sentencing,[23] it carries little weight in this case in the overall assessment of whether exceptional circumstances exist that justify the grant of bail.
[23]Loftus v The Queen [2019] VSCA 24, [79] (Whelan AP and Niall JA).
E.2 Unacceptable risk
Even if I had been satisfied that there were exceptional circumstances justifying the grant of bail, I also accept the prosecution’s submission that Pritchard would pose an unacceptable risk of endangering the safety or welfare of others; committing an offence while on bail; interfering with witnesses; and failing to surrender into custody in accordance with the conditions of bail, if bail were granted. Without being exhaustive, the following matters are of significance:
(1)Pritchard’s criminal history, which includes charges of committing an indictable offence while on bail. I accept the prosecution’s submission that Pritchard has displayed little to no regard for court-imposed bail conditions in respect to previous offending, and that this is demonstrative of his lack of remorse.
(2)The risks associated with Pritchard living at his brother’s residence. I accept the concerns expressed by the informant about the safety of Pritchard’s brother’s wife and children if Pritchard were to live with them permanently. Further, it is cause for concern that during his initial Services Program assessment, Pritchard was unable to provide his brother’s contact details to Service Program staff to enable them to confirm his proposed living arrangements.
(3)Immediately prior to the alleged offending, Pritchard consumed an excessive amount of alcohol while in the company of his brother or within his vicinity.[24] The indifference displayed by Pritchard’s brother to Pritchard’s behaviour immediately prior to the alleged offending suggests his residence is not suitable as Pritchard’s nominated residential address for bail and that Pritchard’s brother is not capable of exercising control or supervision over Pritchard.
(4)Despite the terms of the family violence intervention order currently in place in respect of Dreghici,[25] Pritchard will likely seek to attend Dreghici’s address because that is also where his mother resides. I have been told today that he wishes to try and reconnect with his mother and “build bridges”.
(5)The violent nature of the acts the subject of the alleged offending, about which there is no dispute. I accept the prosecution’s submission that, given the gravity of his conduct, there is an unacceptable risk that Pritchard would endanger the safety of others (both family members and members of the public) if he were released on bail.
[24]See par 8 above.
[25]See par 6 above.
F. Conclusion
For the reasons stated, I am not convinced that exceptional circumstances exist justifying the grant of bail. Further, I am satisfied that Pritchard does pose an unacceptable risk. Accordingly, bail is refused.