Re Pulefolau
[2022] VSC 266
•19 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0101
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by JAMES PULEFOLAU |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 May 2022 |
DATE OF JUDGMENT: | 19 May 2022 |
CASE MAY BE CITED AS: | Re Pulefolau |
MEDIUM NEUTRAL CITATION: | [2022] VSC 266 |
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CRIMINAL LAW — Application for bail — Applicant charged with multiple weapons, violence, theft, drugs and driving offences — Strength of prosecution cases – Delay – Exceptional circumstances not found— Unacceptable risk — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Veronika Drago | Leanne Warren |
| For the Respondent | James Kibel | Victoria Police |
HIS HONOUR:
Introduction
By application dated 22 April 2022 James Pulefolau (the ‘applicant’), seeks an order for a grant of bail in respect of the four matters outlined below.
On 30 November 2017, the applicant was charged on summons by Senior Constable Williams (‘the Williams matters’) with offences alleged to have occurred on 24 September 2017, as follows:
·recklessly causing injury; and
·unlawful assault.
On 14 June 2020, the applicant was charged on summons by Senior Constable Jane Neil (‘the Neil matters’) with offences alleged to have occurred on 14 June 2020, as follows:
·unlicensed driving;
·driving while exceeding PCA; and
·driving while exceeding PCA within three hours of driving.
On 25 February 2021, the applicant was charged and bailed by Senior Constable Luke Haas (‘the Haas matters’) with offences alleged to have occurred on that day, as follows:
·possessing drug of dependence, namely methylamphetamine;
·handling stolen goods, namely a firearms licence;
·possessing a controlled weapon;
·unlicensed driving;
·driving an unregistered motor vehicle;
·affixing false registration plates; and
·committing an indictable offence while on bail.
On 23 March 2022, the applicant was arrested and charged by Senior Constable Breanna Krause (‘the Krause matters’) with offences alleged to have occurred on 13 and 23 March 2022, as follows:
·affray;
·theft of vehicle keys, an Adidas bag and money of an unknown value;
·intentionally causing injury;
·recklessly causing injury;
·being armed with a firearm with criminal intent;
·possess a handgun without a licence (two charges);
·possessing an unregistered handgun;
·possessing a firearm without a licence and store said firearm in an insecure manner;
·possessing cartridge ammunition without a licence;
·possessing a prohibited weapon without exemption, namely a machete;
·possessing a Schedule 4 poison without authorisation or licence;
·possessing a drug of dependence, namely methylamphetamine;
·possessing a drug of dependence, namely cannabis;
·possessing a drug of dependence, namely cocaine;
·retention of stolen goods, namely a Medicare card;
·failing to provide to police with the passcode to his mobile phone;
·committing an indictable offence whilst on bail (three charges); and
·contravention of a conduct condition of bail (two charges).
At the time of committing the Krause matters, the applicant was on bail for the Williams, Neil and Haas matters, having been bailed in relation to the Williams and Neil matters following the execution of warrants issued when the applicant failed to appear in the summons matters, and as above, the applicant having been arrested and bailed in respect of the Haas matters.
There is one co-accused in the Krause matters, Trevor Sofele. The co-accused is charged with affray, theft, intentionally causing injury, recklessly causing injury, threatening to inflict serious injury, being armed with criminal intent, being a prohibited person in possession of a firearm, and committing an indictable offence on bail. He has no criminal history. On 31 March 2022, the co-accused was refused bail in Werribee Magistrates’ Court because he failed to show exceptional circumstances and would be an unacceptable risk of endangering the safety and welfare of any person. On 7 April 2022, the co-accused was again refused bail because he had failed to show exceptional circumstances.
The application
The application is supported by the affidavit of Ashlea Addamo, solicitor, dated 22 April 2022, attaching a series of exhibits, some of which will be referred to below. The applicant also relies on two letters signed by the applicant’s brother, Charlie Troy Pulefolau dated 5 April 2020 and the applicant’s current partner, Marina Christoforou, dated 30 March 2022, as well as a CISP Report dated 10 May 2022. The applicant filed a 10-page written submission, supplemented by oral submissions on the hearing of the application, as well as calling the evidence from the applicant’s brother, Charlie Pulefolau.
In response to the application, the respondent filed an affidavit sworn by Peter Murphy, legal practitioner from the Victoria Police Legal Practice Group, dated 5 May 2022, also attaching a series of exhibits, including a report prepared and authored by Senior Constable Breanna Krause dated 3 May 2022. The respondent relied on the filed written material as well as oral submissions on the application.
The parties agreed that the exceptional circumstances test applies to this application, and accordingly it proceeded on that basis, without objection.
Procedural history
On 23 March 2022, the applicant was arrested, charged and remanded in custody on the Krause matters. On 24 March 2022, he indicated to the Werribee Magistrates’ Court that an application for bail would be made by him. The application was adjourned to 7 April 2022 to allow for an assessment to be conducted by the Court Integrated Services Program (‘CISP’), however he was not able be assessed due to his frequent custodial movements. Between 23 March 2022 and 7 April 2022, the applicant was housed at Werribee Police Station, Broadmeadows Police Station, Melbourne Assessment Prison, Ravenhall Correctional Centre and Marngoneet Correctional Centre.
On 29 March 2022, the applicant’s bail was extended in the Haas and Williams matters to 28 July 2022. The conditions of bail in the Haas matters were that the applicant reside at 2 Teatree Place, Seabrook, not drive a motor vehicle unless licensed, and notify the informant of any change of address. The applicant was on bail on his own undertaking in the Williams matter, with a surety of $1000. That surety is Marina Christoforou, the applicant’s partner.
On 7 April 2022, the applicant was refused bail at Werribee Magistrates’ Court in the Krause matter on the basis that he failed to show exceptional circumstances to justify the grant of bail. Bail was revoked in the Haas, Neil and Williams matters on this date.
The Krause matters are listed at Werribee Magistrates’ Court on 31 May 2022 for mention, and the Haas, Neil and Williams matters are listed at the same court on 28 July 2022 for mention.
The alleged offending
The Williams matters
On 24 September 2017, it is alleged that the applicant and the victim, Kayreis Garley, were drinking at the house of a mutual friend. The applicant and victim were workmates. At about midnight, they had an argument following a series of arm wrestles. The applicant became aggressive, grabbed the victim and punched him to the face. The victim sustained swelling to his lip and minor cuts to the inside of his mouth and his knee.
On 12 October 2017, the applicant was arrested and interviewed where he made full admissions. He was released and subsequently charged on summons.
The Neil matters
At about 5:50am on 14 June 2020, the applicant was stopped in Werribee while driving a Kia sports wagon. Police checks revealed he was unlicensed. He was breath tested and found to have alcohol present in his breath. He accompanied police to the Werribee Police Station where he underwent a breath test. The reading was 0.113. The applicant was interviewed and made full admissions.
The Haas matters
At 3:40am on 25 February 2021, police responded to a call regarding a silver sedan with a siren attempting to pull cars over in the area. They observed the applicant sitting in the driver’s seat of a silver BMW sedan. The applicant initially claimed he had not been driving the vehicle and was just hanging out in the street, but the applicant and the vehicle matched the description police had been given.
While speaking to the applicant, police observed a large dagger on the floor in the rear of the BMW. The vehicle was searched and police located a small bag of methylamphetamine. The applicant was arrested and a further search located a Victorian firearms licence which was found to be stolen during a burglary on 7 January 2021. It was also found that the vehicle’s registration plates were false, that its actual registration expired in October 2020, and that the applicant’s drivers licence had expired in August 2019.
The applicant admitted to driving the unregistered vehicle bearing incorrect plates while being unlicensed. He denied knowing about the knife and claimed that the drugs and stolen licence were not his.
The Krause matters
Between 8:00am and 9:00am on Sunday 13 March 2022, the applicant entered the gaming area at the Phoenix Hotel Point Cook. Unprovoked, and acting together with the co-accused they repeatedly punched Atieli Pakalani in the face. The victim fell to the ground and both the applicant and Sofele continued to punch and kick him to the head and body. The victim managed to get to his feet and run to the outdoor carpark. During the assault the victim’s black Adidas bum bag fell on the ground and the applicant and Sofele picked it up before also going outside to the carpark. There were numerous patrons who witnessed the incident and it was captured on CCTV.
In the carpark, the victim picked up a garden stake to defend himself. Sofele told the applicant to, “get the gun and shoot him”. The applicant went to the vehicle they had arrived in, reached inside and allegedly retrieved a firearm, these events being captured on CCTV. The victim heard the comment made and ran back inside the hotel. The applicant and Sofele then left the hotel in Sofele’s car.
As a result of the assault the victim sustained bruising and swelling to his face and body and a chipped tooth. Inside the bum bag taken by the applicant and Sofele were the keys to the victim’s vehicle, a Westpac bank card and $270 cash.
On 23 March 2022, the applicant was arrested at his home. He was wearing a black cap. It is alleged the applicant was wearing this item in at the hotel, as seen in the CCTV footage. Police located and seized a sawn-off shot gun in the applicant’s bedroom, a very substantial amount of shotgun and rifle ammunition, various types of illegal drugs, an extendable baton and a machete. On the applicant’s partner’s mobile phone police later located pictures of the victim’s stolen bank card. During a search of his vehicle, police found further ammunition and a Medicare card in the name of Robin McGarvie. Furthermore, the applicant refused to provide the PIN code to his mobile telephone.
The applicant was arrested and provided a no comment interview.
Evidence on the application
The informant in the Krause matters, Senior Constable Breanna Krause gave evidence on the application. The relevant CCTV footage was played to the Court, with the informant explaining some aspects of what occurred in the car park at the hotel, including some of the movements of the applicant. The informant expressed the opinion that a firearm could be seen in the front seat area of the motor vehicle, and that both the co-accused and the applicant could be seen handling it at different times. During the hearing of the evidence Counsel for the respondent submitted that the prosecution case is put on the basis of the applicant and the co-accused acted in concert, having arrived at the venue together and then within a short time proceeding to enter the venue and assault the victim. The respondent submitted that it could be inferred that the applicant had knowledge of the firearm and the vehicle, that there was an acknowledgement of the behaviour the two men had carried out, with an inference to be drawn that there was a preconceived plan in regard to the behaviour that had occurred.
Cross-examined, the informant maintained her opinion that the firearm later located at the applicant’s home matched the firearm seen on the CCTV footage, stating that the image of the firearm seen in the car bore “an incredible likeness” to the firearm found in the applicant’s home. In particular, it was noted that both were sawn-off, double-barrelled shotguns, and that both appeared to have a similar ejection port. The informant accepted, however, that the relevant motor vehicle did not belong to the accused.
The informant also acknowledged that she did not conduct the search and was not present in the bedroom when the firearm was found at the applicant’s home. However she was present in the house at the time it was found, and saw it on the floor of the bedroom once it had been taken from the bag and placed on a drop–sheet on the floor. The informant said she expected there would be body worn camera footage of the search, and that in due course a statement would be made by the person that found the weapon. The informant confirmed that there has been a request for fingerprints and DNA testing and that the forensic examination is pending, without there being a certain date for the result. The informant confirmed that the full brief on the matter has not yet been compiled, and that not all material has been disclosed.
The applicant’s uncle, Charlie Tory Pulefolau, gave evidence on the application confirming that the applicant would be able to live with him in the event that bail was granted, and that he and his wife and four children would also live in the house. He explained that he and his wife worked opposite shifts, so would be able to maintain supervision of the applicant. Mr Pulefolau confirmed that he would be willing to contact police if he became aware of the applicant not complying with any of his bail conditions. In cross examination, and questions asked by the Court, Mr Pulefolau said he was unaware that the applicant later reported to a CISP interviewer significant issues with abusing alcohol and drugs over the last four to five years, that he had never seen him affected by drugs, and had no knowledge of drug use by the applicant.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[1]
[1]The Act, s 1B(2).
The applicant has been charged in the Krause matters with Schedule 2 offences of committing offences against the Act[2] whilst on bail for another Schedule 2 offence, namely allegedly committing the indictable offences charged by informant Haas while then on bail for other indictable offences in the Williams matters.[3] Furthermore, he is alleged to have committed the Krause offences while on bail with the first three sets of offending. As a consequence, bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[4] In determining whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[5]
[2]The Act, sch 2 item 30. He was also charged with another Schedule 2 offences of affray during the course of which the applicant is alleged to have threatened the use of a firearm (item 23).
[3]The Act, sch 2 item 1. The applicant failed to appear in the Williams matter on 1 February 2021 and a warrant of arrest was issued. This warrant was executed on 19 February 2021 and the applicant was bailed on his own undertaking. The Haas matter is alleged to have occurred on 25 February 2021.
[4]The Act, ss 4AA(2)(c)(i), 4A(1A)-(2).
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must then move to the unacceptable risk test.[6] The Court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[7] In determining whether a risk is unacceptable, the Court must again have regard to 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.[8]
[6]Ibid ss 4A(4), 4D(1).
[7]Ibid ss 4D(2)-(3), 4E.
[8]Ibid s 4E(3).
The applicant’s personal circumstances
The applicant is 33 years old. He was born in New Zealand where he spent the majority of his formative years. He has five children aged between 9 and 13, who reside with his former partner in New Zealand. The applicant left school at around age 15 and has held meaningful employment throughout his adult life, however prior to his remand, he was not employed as he had been caring for and assisting his partner Marina Christoforou and her children. This relationship began about 12 months ago. His partner has recently been diagnosed with stomach cancer. The applicant commenced abusing substances, including alcohol, after the breakdown of his previous relationship.
Criminal history
The applicant has no criminal history.
The applicant’s contentions
The applicant relies on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Strength of the prosecution case
The applicant will contest the charges in the Krause matter and submits that there are a number of triable issues, including disputing the presence of a firearm in the car of the co-accused, submitting that the CCTV footage is unclear and is not capable of establishing that there was a firearm in the car, and if there was, that the applicant ever held it. It was submitted that even when the CCTV footage was played on a small screen, the presence of a firearm in the front of the vehicle simply cannot be seen. It was submitted that the vision does not depict the applicant being present when the co-accused was allegedly rearranging or locating the firearm in the front of the car, there is no evidence showing that the applicant was present when that occurred, and the evidence was not sufficient to establish that he even knew there may have been a firearm in the car. Counsel noted that the brief against the applicant was in a preliminary stage, and that the Court was obliged to deal with the evidence as it stood at the time of the application, and not what the evidence might be in the future.
Further, it is submitted that the complainant’s account of the alleged events is unreliable. Further, that there is no evidence to support the allegation of an injury to the complainant. The applicant also points out that there is presently no forensic evidence in relation to items seized during the execution of the search warrant on 23 March 2022, including any results of testing of shotgun, ammunition, and drugs for fingerprints or DNA.
Delay and likely sentence
The applicant submits that there are numbers of matters in dispute across most of the briefs of evidence. In particular the Krause matters will be contested, and this leads to uncertainty as to when a contested hearing can be listed for hearing, as there will need to be a contest mention, at which a later contested hearing will be fixed. The applicant points to well-known significant backlogs in the hearing of cases caused by the pandemic. Further, the applicant points to the delays in forensic examinations, and that there is no certain date when the results of those examinations might be obtained. It is submitted that the applicant faces a delay which may result in the matters not being resolved until 2023.
At the date of the application being filed the applicant had spent 29 days on remand. The applicant submits that he is at real risk of spending more time on remand than the likely sentence to be imposed on the Krause matters if he is found guilty of these alleged offences. The applicant accepts that the allegations in the Krause matters are serious in nature due to the alleged possession and use of a firearm, however points to the applicant’s lack of criminal history, his role as a carer for his partner, the delay he will experience in these matters being heard, and the availability of alternative sentencing options to a sentence of imprisonment. The applicant submits that there is not a risk in relation to the other three sets of offending resulting in the applicant serving a term of imprisonment. Thus, the prospect of imprisonment relates only to the allegations in the Krause matters, and even then in the face of no mandatory term of imprisonment attaching to the serious offence alleged, a community corrections order would be a sentence within range.
COVID-19 and onerous conditions in custody
The applicant notes that he has never been in custody before, and that this has had a deterrent effect on him. He points to his current conditions of incarceration, and submits that his time of remand has been more onerous due to COVID-19, including spending 14 days in quarantine isolation, prohibitions on in-person visits and limited access to programs. It is also submitted that his frequent custody movements since his remand have made it difficult for him to obtain personal and legal phone calls, as well as an inability to be assessed by CISP.
Family support and stable accommodation
The applicant submits that he has strong support from his partner and family. It is proposed that the applicant will reside at an address in Point Cook with his uncle Charlie Troy Pulefolau, as well as his uncle’s wife and children. The applicant’s uncle is prepared to assist the applicant in adhering to all bail conditions and personally escort him to any appointments required. It is submitted that this circumstance represents a protective factor. During cross-examination, the informant confirmed that she had done suitability checks of the uncle’s address and although there were no issues with the residence, she did not at that stage have full details of other occupants who may be living at that address.
The applicant’s partner, Marina Christoforou, remains supportive of the applicant. She has stomach cancer and says she is heavily dependent on the applicant to assist in caring for her and her children.
Further, the applicant’s uncle is prepared to provide a surety of $25,000, which he confirmed in oral evidence.
Availability of treatment or bail support services
The applicant has been assessed by CISP for case management relating to drug use and supervision in the report provided to the Court, dated 10 May 2022. The report recommends the applicant for CISP brief intervention case management by the CROP team. This would involve the applicant receiving one month post-release phone support through CROP, which will allow for follow-up of referrals and supports to be arranged. According to the assessor the applicant self-reported an extensive history of problematic alcohol consumption and a 4½ year history of polysubstance use, including the use of ice, cocaine, and GHB, with the abuse of alcohol as being the most problematic issue. He reported that his abuse of alcohol brought on anger and lack of control, the more he drank the angrier he would become. The applicant did not report a previous formal diagnosis regarding his mental health, but felt that some mental health support in the community would be beneficial, believing that he has unresolved past issues that need to be addressed. The applicant indicated he would attend his local practitioner to obtain a mental health treatment plan, and referral to enable ongoing psychological support in the community.
It is noted that the applicant was initially referred to CISP on 24 March 2022 but an assessment could not be conducted because of his frequent custodial movements. The applicant has not previously been involved with any drug and alcohol treatment and submits that it remains the case in custody that those on remand have limited access to courses and treatment.
Unacceptable risk
In addressing issues relating to unacceptable risk, the applicant particularly points to his lack of prior convictions, and submits that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to reporting, residence, not to associate with victims, not to consume alcohol or use a drug of dependence, and surety.
The applicant acknowledges his previous failures to attend court, but points to his lack of previous legal representation, and the way in which proceedings were conducted during the course of the pandemic, as mitigating the effect of these failures.
Surrounding circumstances
In light of the requirement to take into account surrounding circumstances, the applicant acknowledges the seriousness of the offending in the Krause matters, but contrasts the difficulties the prosecution will have in proving the case against him; his lack of prior criminal history, that he has no proven history of non-compliance with court orders, whilst acknowledging his failures to answer on bail; that at the time of the alleged offending he was on bail for another offence; or subject to previous court orders; his personal circumstances; the availability of CISP assistance; and that in the event of being found guilty of the offences with which he is charged, there is no guarantee that he would receive a sentence longer than the period he faces on remand.
The respondent’s contentions
The application is opposed on the basis the applicant has not satisfied the court as to the existence of exceptional circumstances that justify the grant of bail. The respondent further submits that the applicant is an unacceptable risk of endangering the safety or welfare of any person, committing an offence while on bail, and failing to surrender into custody in accordance with the conditions of bail.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Strength of the prosecution case
In relation to the alleged presence and possession of a firearm in the front area of the vehicle in the hotel carpark, the respondent submits that there is strong evidence to prove the applicant was in possession of a firearm on 13 March 2022.
The respondent relies on CCTV footage to support the firearm charge in the Krause matter. It is alleged that the object held by the applicant at 4.01-4.02 of the footage is a firearm. Additional evidence is also relied on, namely a statement by the victim where he heard the co-accused instruct the applicant to get a gun out of his car, enhancements to the CCTV footage that depict the applicant retrieving an item from the driver’s side foot well of the vehicle, that the barrel of a firearm can be seen, with the firearm being placed back into the vehicle, and that a firearm matching the description was later seized from the wardrobe in the applicant’s bedroom.
It is submitted that the applicant’s contention that there is no evidence to support the allegation of an injury is incorrect. The respondent points to six photographs taken immediately after the assault which shows the victim with bleeding, bruising and swelling on his head and neck and a chipped tooth.
The respondent accepts that there are outstanding forensic examinations to be undertaken on the firearm seized from the applicant’s address.
Delay
The respondent accepts that there will be a delay in the resolution of these matters, but maintains that it is possible that the matters will be concluded later in 2022, and should not run into 2023. The respondent refers to a priority system in respect of the forensic science investigations, and maintains that any delay could be significantly reduced in respect of this matter.
With respect to an eventual sentence to be imposed, it was submitted that the offending demonstrated in the Krause matters was serious, and aggravated, involving the possession of a firearm and ammunition, and in affray at a licensed venue, justifying a punitive sentence to be imposed. It was submitted that a sentence of imprisonment was open and would be the most likely outcome in respect of the allegations concerning the Krause matters.
Availability of bail support or treatment
The respondent submits that the matters set out in the CISP report raised some concerns. The respondent notes the findings in respect of alcohol abuse, and drug abuse, but submits that there is no nexus in relation to the alleged offending before the Court. Specifically, it was submitted there was no allegation that the applicant was substance affected at the time of committing the alleged Krause matters. It was submitted that there was nothing within the report that would tend to reduce the risk of reoffending because there was no established nexus between illicit substance or alcohol abuse and what occurred at the hotel.
Criminal history
It is conceded that the applicant has no criminal history.
Family violence intervention order in force
The applicant does not have any current family violence intervention orders.
Family support and stable accommodation
The respondent submits that police have not been able to undertake a suitability assessment of the proposed address should the applicant receive a grant of bail because the details of the occupants the applicant had not been disclosed before the hearing of the application.
The respondent further submits that the applicant does not specify how he will assist in the care of his partner in a way that other friends or family cannot, particularly where the proposed bail conditions do not have them residing together. Further, the respondent submitted that it was unrealistic to expect a family member to assume an obligation to report a loved one to police for a bail breach, particularly in circumstances where the uncle may lose a surety of $25,000.
Complainant’s views on bail
The victim in the Krause matter is fearful of the applicant. The assault was entirely unprovoked and volatile. The victim is concerned that if the applicant were granted bail he would not hesitate to assault him again.
Unacceptable risk
Endangering the safety and welfare of any person
With respect to the Krause matters it is submitted that the applicant has been charged with a violent assault that occurred in a public setting at the Phoenix Hotel, and that he had no regard for the welfare and safety of the victim or members of the public present. Further, he has pending charges for assault for which he was on bail, and despite this has continued to demonstrate a propensity for violence. The respondent has serious concerns regarding the accused’s escalation in offending to possessing firearms, and that he has demonstrated a willingness to possess, carry and display a firearm, and at the time of his arrest was storing a firearm and drugs at an address shared with young children.
Committing an offence whilst on bail
The applicant has been charged with committing indictable offences whilst on bail.
Failing to surrender into custody in accordance with the conditions of bail
It is pointed out that the applicant had three previous bench warrants issued for his arrest which were current at the time the Krause offending was committed.
Analysis
The applicable test
As a consequence of being charged with the offences detailed above, bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[9] In determining whether exceptional circumstances exist, the Court must take into account all of the relevant surrounding circumstances, including those set out in s 3AAA of the Act.[10]
[9]The Act, ss 4AA(2)(c)(i), 4A(1A)-(2).
[10]Ibid s 4A(3).
With respect to the exceptional circumstances test, in Re Strachan[11] Lasry J observed:
[11][2021] VSC 538.
The Act does not define what is meant by ‘exceptional circumstances’. However, its meaning has been the subject of much judicial consideration, and the established principles have previously been summarised by me and other judges of this Court to the following effect:
(a) The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
(b) Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
(c) Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[12]
[12]Ibid, [27].
In determining this application I will apply the test as set out by Lasry J, as above.
If satisfied that exceptional circumstances exist justifying a grant of bail, a grant of bail must still be refused if the respondent satisfies the Court that there is a risk of a kind set out in s 4E(1)(a) of the Act and that such risk is unacceptable.[13] In considering this, 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.[14]
[13]The Act, ss 4D(1)(a) and 4E.
[14]Ibid s 4E(3).
Consideration
Strength of the prosecution case
The hearing of this application focussed primarily on examining the Krause matters. Doubtless this was due to the serious nature of these allegations and their significance to the determination of the exceptional circumstances test. That observed, it should not be overlooked that the applicant faces three other sets of allegations across which he has made a number of admissions, noting that he currently disputes some aspects of the Haas matters, including his knowledge of the presence of a weapon and drugs in the relevant motor vehicle. With respect to the Krause matters, the applicant disputes aspects of the allegations concerning the firearm, and the ammunition and later located at his home. Images recorded on CCTV of the events occurring in the carpark of the hotel were shown to the Court, and arguments were advanced as to what might be concluded from the actions of the co-accused and applicant in the front area of the motor vehicle. The Court was invited to review the images on a smaller screen and that has occurred. Despite submissions on behalf of the applicant to the contrary, having seen the vision, in my opinion it would be open for a fact-finder to conclude that there was a firearm in the front seat area of the car, and that the co-accused can be seen handling it. However, the applicant does not appear to have been observable on the CCTV vision at that point.
The conclusion that a firearm was in the vehicle is also capable of being supported by evidence from the victim, who hears the co-accused say to the applicant to, ‘get the gun and shoot him’. Having reviewed the footage, in my opinion it is less certain that it would be open for a fact finder to be satisfied that the applicant handled the weapon in the manner suggested by the informant. The prosecution case is that when he was arrested some days later, the applicant was found in possession of the same firearm. Whether a fact-finder is satisfied it was the same firearm will remain to be seen on an evaluation of all the evidence, considered together. Expert and forensic evidence may be capable of illuminating this question if and when it is obtained.
It is not the role of this Court, in this type of application, to try the case as that will be a matter for the eventual fact-finder. My role is to come to a broad conclusion as to the strengths and weaknesses of the case against the applicant.
Overall, I am of the opinion that the case against the applicant in respect of his alleged knowledge and handling of a firearm in the car is less strong than the case alleging his possession of it, or another similar firearm, on 23 March 2022 when a sawn-off shotgun was allegedly located in a bag in the bedroom of the house he occupied. Nevertheless, the case for the applicant’s knowledge of the gun being in the car is an arguable one in light of the victim’s actual words he said were uttered by the co-accused. If found to have been said, the words, along with other evidence, may be capable of establishing the applicant had knowledge of its presence before the words were said. During the search a significant amount of ammunition and drugs were located in his bedroom on the same occasion. In my opinion, this aspect of the prosecution case also appears to be strong.
I am also of the opinion that the case against the applicant in respect of the assault on the victim is strong. This assault occurred in a public venue, was apparently recorded on CCTV vision and in front of witnesses, taking place in company with the co-accused. It is alleged to have been unprovoked, and arguably constituted a serious assault involving punching to the ground and kicking the victim to the head, albeit that the resultant physical damage occasioned to the victim turned out to be not at a serious level of gravity.
Finally, it should be noted that the Krause matters involve allegations of offences committed on two separate dates, as well as involving a variety of different types of offending across the two occasions of alleged offending.
Turning to other allegations, it must also not be overlooked that with respect to the Haas matters the applicant is alleged to have been found in a motor vehicle with a controlled weapon, drugs in his immediate possession, and stolen property. At the time of this alleged offending he is alleged to have committed these indictable offences while already on bail. In my opinion the Haas matters cannot be said to be weak in light of the applicant’s sole occupation of the motor car at the time he was arrested.
Delay
The Krause matters are listed at Werribee Magistrates’ Court on 31 May 2022 for mention, and the Haas, Neil and Williams matters are listed at the same court on 28 July 2022, also for mention. It is conceded by the respondent that there will be a significant delay in the resolution of the applicant’s matters, especially as the brief is not yet in a complete form. As a result, it may be that the delay will result in these matters not being finalised until late in 2022, or possibly into 2023.
It should be noted that during the hearing of the application the respondent conceded that by themselves, the Haas, Neil and Williams matters would not likely result in a sentence of imprisonment being imposed on the applicant for those matters. In my opinion this concession was reasonably made but of course does not take into account the eventual impact of the Krause matters, should the applicant be found to have committed the affray, assault and firearm offences. In my opinion a sentence of imprisonment will clearly be open to be passed on the applicant in respect of some of the Krause matters.
Of course much will depend on what offending the applicant is finally convicted of having committed. However, at present, I am mindful of the allegations that he has been in possession of two different types of weapons, one being a sawn-off shotgun found along with a large amount of ammunition, as well as possession of a large bladed weapon on a different occasion. Furthermore, it appears reasonably open for a fact-finder to be satisfied that the applicant was involved in an assault in company with a co-offender, in a public place in front of many witnesses. The nature of the alleged assault was serious, and brazenly carried out in front of what the applicant would reasonably know was a CCTV-protected gaming room in a hotel. Furthermore, I am of the opinion that the evidence suggests there was an element of planning by the two assailants in confronting the victim who was known to the applicant, and being likely that he knew where his victim would be before going to the hotel. In these circumstances it would be reasonable to conclude that the alleged assault was not likely to have been spontaneous. If a fact-finder concludes that the events at the hotel were carried out when a firearm had been taken to the hotel and handled in the motor car before the assault, and after, this would tend to add to the seriousness of the surrounding circumstances.
Being mindful of the delays that will occur in the resolution of these matters, in all the circumstances, I am not satisfied the delay is inordinate or out of the normal, noting the clear potential for a sentence of imprisonment to be eventually passed on the applicant.
Family support and personal issues
I have taken into account the offer to the applicant of a residence and a surety, as well as the unfortunate illness of the applicant’s partner. Having heard and watched the evidence of the applicant’s uncle, I am left in doubt about his ability to monitor the applicant as proposed. The health predicament of the applicant’s partner is a matter I have particularly taken into account in all the circumstances.
I have also had regard to the fact the applicant has no criminal history, and that this is his first time in custody. I have also taken into account the recommendation of CISP as to the support that is proposed to be offered to the applicant should he be released on bail. With respect to this assessment I have noted that the applicant self-reported his drug and alcohol abuse issues, however there is little, if any, independent evidence supporting the history of abuse he asserts. In this regard I note that on evidence before me, the applicant’s uncle appeared quite unaware of any suggestion that the applicant had been suffering from substance issues in the years leading up to the events he has been charged with. Furthermore, in my opinion there is a lack of credible evidence suggesting that his alleged offending across the four sets of charges have occurred in the context of any realistic connection to the substance abuse he has asserted. Furthermore, from what has been placed before this Court, there is no evidence suggesting the applicant was drug or alcohol affected at the time of any of his alleged offending, or in the period leading up to the Krause matters alleged to have been committed.
Conclusions
Taking all matters into account and balancing all the necessary considerations, as well as the surrounding circumstances, I am not satisfied the applicant has established that the exceptional circumstances test as described above has been met by the applicant. In my opinion, the circumstances relied upon by the applicant do not take the case out of the normal so as to justify the admission of the applicant to bail. I add that if I have come to a wrong conclusion about this, I would have nevertheless concluded that the respondent has satisfied me that the applicant is an unacceptable risk of endangering the safety or welfare of any person, committing further offending while on bail, or failing to appear for the hearing of his charges.
In this respect the applicant has shown a past disregard for the requirement to appear at hearings on summons charges, has failed to appear on a previous grant of bail, and furthermore, is alleged to have committed indictable offences while on a series of previous grants of bail. He is alleged to have committed a serious assault, as described above, and alleged to have possessed a very serious form of firearm, while on bail for an offence which of itself involved an allegation of being in possession of a controlled bladed weapon.
In all the circumstances I am not satisfied that a series of conditions could sufficiently ameliorate the risk to a degree where the risk of further offending, failure to appear, or danger to the safety and welfare of any person, can be made acceptable. It is particularly troubling that the applicant’s offending behaviour appears to have escalated over the past three years, and is now attended by offences alleging a more serious level of personal violence, in a public setting, as well as the possession of significant weapons on different dates, and in different circumstances.
Accordingly, the application for bail will be dismissed.