Re Pusey
[2022] VSC 455
•10 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0138
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an application for bail by Richard Pusey |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July 2022 |
DATE OF JUDGMENT: | 10 August 2022 |
CASE MAY BE CITED AS: | Re Pusey |
MEDIUM NEUTRAL CITATION: | [2022] VSC 455 |
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CRIMINAL LAW – Bail – Applicant charged with use carriage service to offend and bail offences – Whether exceptional circumstances exist that justify the grant of bail – Whether applicant an unacceptable risk of endangering the safety or welfare of any person or committing an offence whilst on bail – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The Applicant appeared in person | |
| For the Respondent | Mr A Albore | Victoria Police |
HER HONOUR:
Introduction
The applicant is charged with using a carriage service to offend (two charges) and committing an indictable offence while on bail (two charges).
The applicant filed a Notice of intention to make an application for bail on 24 May 2022. Over the following weeks various exhibits and approximately 60 subpoenas were filed by the applicant prior to the hearing of the application, not all in proper form. On 8 June 2022, pursuant to r 42.02(2)(a)(ii) of the Supreme Court (General Civil Procedure) Rules 2015, I ordered that the Prothonotary not issue any subpoena filed on behalf of the applicant in this proceeding without leave of the Court.
On 9 June 2022 I granted the applicant leave to issue three of those subpoenas.
The applicant appeared self-represented at the hearing of their[1] application for leave to issue subpoenas and their bail application on 8 July 2022.
[1]The applicant uses they/them pronouns.
On 8 July 2022 I refused bail indicating that I would later publish my reasons for so doing. These are those reasons.
Summary of allegations
Background
On 22 April 2020 the applicant was intercepted on the Eastern Freeway in Kew East while travelling approximately 50km/h above the speed limit. One of the four attending police officers administered routine tests on the applicant whilst they were pulled over in the emergency lane. The applicant then walked away from the intercept location to urinate.
Moments later a truck driving on the freeway swerved into the emergency lane, colliding with the four attending police officers, two police cars and the applicant’s Porsche (‘Eastern Freeway collision’). The applicant returned to the scene, retrieved two mobile phones from their car and commenced taking videos and photos of the four police officers whilst the officers were in deceased or seriously injured and dying states.
Charges 1 and 2
On 29 October 2020 the applicant commenced corresponding with PSC Insurance Brokers about the damage sustained to their car in the Eastern Freeway collision. The applicant was notified that the insurance policy would not be paid out.
On 25 November 2021 the applicant submitted a complaint to the Australian Financial Complaints Authority (‘AFCA’) regarding the failure of the insurance company to pay out their insurance policy. The complaint was submitted via the AFCA’s online web portal. The applicant attached to the complaint images of the deceased and dying police officers taken at the scene of the Eastern Freeway collision (charge 1 – use carriage service to cause offence and charge 2 – commit indictable offence on bail[2]).
[2]On 15 September 2021 the applicant was admitted to bail with respect to charges of stalking (two charges), assault police officer (four charges), discharge missile to cause danger and commit indictable offence while on bail (two charges) (‘informant Izod matters’). The informant Izod matters, alleged to have been committed between October 2019 and September 2020 were withdrawn on 14 April 2022.
Charges 3 and 4
On 7 February 2022 the applicant posted a Google Review in relation to Porsche Centre Melbourne, complaining that they had not been paid out for the damage to their car in the Eastern Freeway collision. The profile picture used by the applicant in the Google Review depicted one of the police officers in a seriously injured and dying state on the roof of the applicant’s damaged car (charge 3 – use carriage service to cause offence and charge 4 – commit indictable offence on bail).
Investigation and arrest
On 10 December 2021 police investigators met with AFCA representatives and obtained the correspondence sent by the applicant.
On 8 February 2022 police executed a search warrant at the applicant’s home. Three mobile phones and an iPad were seized. The applicant refused to provide passwords for these devices. The applicant was arrested, charged and remanded in custody.
On 23 May 2022 the applicant was refused bail in the Sunshine Magistrates’ Court. These matters are next listed for a two-day contested hearing in that court on 9 August 2022.
Applicant’s personal circumstances
In considering the applicant’s personal circumstances, I have had regard to the following material filed by the parties:
(a) A Psychiatric Report by Dr Adam Deacon dated 13 October 2020;
(b) A further Psychiatric Report by Dr Deacon dated 29 March 2021;
(c) A report prepared by the Court Integrated Services Program (‘CISP report’) in respect of the applicant, dated 16 May 2022;
(d) A letter from Dr Allan Bond, the applicant’s GP, dated 23 May 2022;
(e) A letter from Susie Rotch, the applicant’s psychologist, dated 1 June 2022; and
(f) A letter from the applicant’s mother dated 4 June 2022.
The applicant is now 44 years old. Prior to their arrest in April 2020,[3] the applicant lived with their wife, managed a successful property development business and operated a finance business through a colleague.
[3]This is a reference to the applicant’s arrest following the Eastern Freeway collision.
Dr Deacon’s reports detail that the applicant grew up in suburban Melbourne in a relatively stable home environment with limited parental supervision. The applicant had two older brothers who are now both deceased and endured physical discipline at the hands of their father. From a relatively young age the applicant was involved in recalcitrant behaviours and was noted to be defiant towards authority. They moved schools frequently and gained a reputation as a person to avoid rather than befriend.
Against this background, the applicant developed a number of problematic personality traits that persisted throughout their adult life. The applicant reported having a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) in 2008 and in 2016, self-reported cessation of prescribed medication and did not provide additional information to Dr Deacon as to the reason for this. Dr Deacon opines that the applicant has a ‘personality disorder considered to be moderate in severity’ as well as ‘a complex mixture of core antisocial, borderline, narcissistic and paranoid personality subtypes.’ Dr Deacon’s reports identify that the applicant requires sustained and continuous psychiatric and psychological follow-up in the community.
There is some evidence before the Court that the applicant has struggled with obtaining adequate mental health supports and treatment whilst in custody. The report of October 2020 recommends weekly psychological therapy to ‘address underlying personality-based vulnerabilities in the form of mentalisation, social skill development, self-regulation and empathy building.’ The report of March 2021 adds that the applicant presented in a severely depressed state during a consultation and that the applicant was ‘experiencing prison with considerable difficulty.’ That report also concludes that the applicant’s difficulties coping in the community ‘mostly relate to underlying personality-based problems, but his comorbid mood disorder likely compounds a complex presentation.’ At the time of writing these reports, Dr Deacon was in a position to offer the applicant psychiatric care in conjunction with another practitioner. As at May 2022, Dr Deacon notified CISP that prior to the applicant’s arrest for the present offending, he had scheduled an appointment with the applicant but the applicant did not attend. Dr Deacon is no longer able to offer the applicant such care.
The CISP report refers to the applicant’s most recent mental health assessment in May 2022, which indicates a diagnosis of Schizophrenia Unspecific, personal history of unhealthy sleep-wake schedule, drug use and Schizotypal Disorder. The applicant reported to CISP staff that they had ceased taking their prescribed medication (Lithium Carbonate) in September 2021 due to the failure of the prison health service to conduct a regular review of their kidney function and blood results.
The applicant also has a history of substance use as detailed in Dr Deacon’s reports. The applicant reported that their illicit drug use was limited to ‘controlled’ use of substances including ecstasy, cocaine and nitrous oxide to accentuate their social experiences in the setting of pubs, strip clubs and international travel without compromising their functioning. The CISP report concludes that the applicant has no current concerns around drug use or alcohol use.
The applicant has some present community supports. The applicant’s psychologist, Ms Rotch, is willing to consult with them for six fortnightly sessions to provide assistance with re-establishing community supports and to transition into a thorough therapy program. She acknowledges that the latter is very difficult to organise whilst the applicant is in custody.
The applicant’s mother, Mrs Pusey, states that she and her husband have no problems supporting the applicant if bailed. She describes the applicant as an empathic, generous and sensitive person and an extremely hard and productive worker, having been employed since the age of 15. Mrs Pusey refers to the applicant’s difficulties with seeking mental health treatment in custody in relation to grief following the deaths of two of their brothers and PTSD following the Eastern Freeway collision.
The applicant’s friend, Tammy Sleep, offers her residence as a bail address should the applicant be granted bail.
The applicant is not recommended for engagement with CISP as their ‘current needs sit outside the scope of the CISP program.’
Criminal history and outstanding matters
The applicant has a criminal history commencing in the Children’s Court in 1994.
In June 1994 the applicant was convicted in the Children’s Court of possessing a dangerous article and fined $50. On appeal, the County Court set aside the conviction and released the applicant on a 12-month adjourned undertaking.
In November 1994 the applicant was found guilty in the Children’s Court of four charges of burglary, five charges of theft and a single charge of handling stolen goods and released on a 12-month good behaviour bond.
In September 2008 the applicant was found guilty of intentionally cause injury and intentionally damage property and sentenced to eight months’ imprisonment with four months of the sentence suspended for two years. On appeal, the County Court imposed an aggregate nine month sentence of imprisonment, suspended for two years.
In November 2016 the applicant was found guilty of stalking and sentenced to a 12-month community correction order. In August 2017, the applicant was resentenced to a 12-month adjourned undertaking for this offence and the matter dismissed a year later as a result of compliance with the undertaking.
In February 2017 the applicant was found guilty of two charges of contravening a personal safety intervention order (‘PSIO’) and fined $500.
In May 2017 the applicant was found guilty of emit unreasonable noise from residence and fined $500.
In April 2018 the applicant was found guilty of reckless conduct endangering serious injury, threat to damage property, being drunk in a public place and commit indictable offence while on bail and sentenced to three months’ imprisonment.
In May 2018 the applicant was found guilty of intentionally damage property, contravene final PSIO, commit indictable offence while on bail, contravene a conduct condition of bail, two charges of contravene interim PSIO and state false address when requested and fined $750.
In July 2018 the applicant was convicted of using a carriage service to menace and fined $750.
On 28 April 2021 the applicant was convicted and sentenced to 10 months’ imprisonment by the County Court in relation to charges of reckless conduct endangering serious injury and committing an act outraging public decency. The applicant was convicted of speeding, fined $1,000 and had their license suspended for two years. The applicant was also convicted of possessing a drug of dependence and released on a two-year adjourned undertaking with a condition that they continue to undergo treatment with Dr Deacon and provide progress reports prepared by Dr Deacon to the Court every 6 months for the first year of the undertaking. These charges arose out of the Eastern Freeway collision.
On 25 August 2021 the applicant was found guilty of five charges of using a carriage service to menace, unlawful assault, two charges of contravene a conduct condition of bail, theft, criminal damage and intentionally destroy property (‘informant Cameron matters’). The applicant was sentenced to 90 days’ imprisonment for the Commonwealth offences (two charges of using a carriage service to menace), to be released on a two-year recognisance release order after serving 30 days of that sentence. The applicant was sentenced to 90 days’ imprisonment (cumulative of the sentence for the Commonwealth offences) for the remainder of the charges and fined $2,300. This conduct related to transmitting menacing communication to a manager at Westpac bank.
At the time of the alleged offending the applicant was subject to an adjourned undertaking with respect to the drug charge arising out of the Eastern Freeway collision and a recognisance release order for the informant Cameron matters. As noted above, the applicant was also on bail with respect to the later withdrawn informant Izod matters.
The applicant has no family violence risks or history.
Legal considerations
Charges 1 and 3, namely using a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), are Schedule 2 offences, being indictable offences committed whilst the applicant was on bail for the informant Izod matters[4] and serving sentences imposed on 25 August 2021 and 28 April 2021 for other indictable offences.[5] Charges 2 and 4 are Schedule 2 offences, being offences against the Act.[6] Bail must therefore be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.[7] In considering whether exceptional circumstances exist, the Court must take into account the relevant surrounding circumstances in s 3AAA(1) of the Act.
[4]Bail Act 1977 (Vic)) (‘Act’), Schedule 2, item 1(a). As noted above, the charges in the Izod matters have since been withdrawn. I note that there are divergent opinions as to the interpretation and application of the exceptional circumstances test in s 4AA(2) in situations where charges for which an applicant was admitted to bail had since been or were intended to be withdrawn by the time a bail application was heard in this Court. See, for example, Re Mourad [2021] VSC 497 (Coghlan JA) cf Re Hill (Beale J, 16 December 2020) and Re Arnold (T Forrest JA, 15 May 2019). It is not necessary to resolve the issue for the purposes of this application. However, in my view, the plain reading of s 4AA(2)(c)(i) shows that the exceptional circumstances test applies if a person is on bail for a Schedule 2 offence at the time that that person is alleged to have committed the instant offence.
[5]Act, Schedule 2, item 1(d).
[6]Act, Schedule 2, item 30.
[7]Act, ss 4AA(2)(c)(i), 4A(1A) and 4A(2).
The meaning of exceptional circumstances is well known. The circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.
If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one.[8] The Court must again have regard to the surrounding circumstances delineated in s 3AAA(1) when making that determination.[9] Further, the Court must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[10]
[8]Act, s 4E(1).
[9]Act, s 4E(3)(a).
[10]Act, s 4E(3)(b).
The Court must also have regard to the guiding principles set out in s 1B(1) of the Act.
Applicant’s contentions
The applicant relies upon a number of factors which combine to produce exceptional circumstances.
First, they submit that the allegations against them are not serious examples of the offences charged and that the prosecution case is weak and vexatious. An argument was developed which I understood to be that the prosecution could not prove that it was they who committed the offence. It was argued that other persons took photos at the scene of the Eastern Freeway collision and that it could not be established that the photographs sent to AFCA and posted to the Google Review were ones taken by them, as opposed to someone else. The applicant further argued that members of Victoria Police held an animus towards them that resulted in unfair and unlawful harassment.[11]
[11]I note, for the sake of completeness, that the majority of the 60 subpoenas in respect of which the applicant sought leave to issue related to their complaints of unfair and harassing conduct by members of Victoria Police over many years, including years prior to the Eastern Freeway collision, as well as conduct by other authorities. I explained to the applicant, over the two days in which those applications were heard, that the application for bail was not the correct forum to pursue those issues.
Second, the applicant submits that they have complied with previous grants of bail.
Third, the applicant concedes that they were on bail in the informant Izod matters at the time of the alleged offending but notes that the charges in the Izod matters have since been withdrawn. The applicant is not currently subject to charges in any other matter.
Fourth, the applicant submits that they have a good support network, and ‘[have] help’. If bail is granted, it is proposed that the applicant reside with a friend, Tammy Sleep. The applicant also submits that they will have access to treatment and support services if bail is granted, relying on the letter of their psychologist. The applicant was granted leave to issue a subpoena to Ms Sleep to give evidence at the hearing of the application. In the event, they did not call her. Nonetheless I note that both Ms Sleep and the applicant’s mother were present at the hearing of the application.
Fifth, the applicant submits that they have a special vulnerability, namely ‘trying to get through PTSD’. The applicant submits more broadly that their medical needs, both mental and physical, were not being met in custody. They said that blood tests and intramuscular injections had been denied. Although the argument was not expressed clearly, I understood there to be a suggestion that this was, at least in part, a deliberate action on the part of prison authorities. I granted leave to the applicant to subpoena their medical records from Justice Health for the purposes of the application. I have read those records. At the hearing of the application I invited the applicant to direct me to any specific part of the records upon which they relied.
Sixth, the applicant has been in custody since 8 February 2022, and will have spent five months on remand as at the time of this application. The applicant submits that the likely penalty if found guilty is a fine and consequently they are likely to spend more time in custody on remand than any sentence imposed if found guilty.
As to unacceptable risk, the applicant submitted that they would comply with the conditions of the grant of bail.
With respect to the 10 March 2022 recorded phone call between them and Ms Sleep (considered further below), the applicant argued that the distress and frustration in their voice was obvious. That distress and frustration was caused by a ‘rigged and broken system’. They were doing nothing more than ‘venting’ and the threats were not real. The 10 March 2022 telephone call to the Health Complaints Commissioner (‘HCC’) and 11 March 2022 letter (both considered further below) were similar. With respect to the latter, the letter was posted to their own post office box and was akin to a diary in which they worked out their thoughts.
Respondent’s submissions
The respondent submits that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail.
It is argued that the allegations are serious examples of using a carriage service to cause offence. The nature of the images and the shocking circumstances surrounding them make the use of those images inherently offensive.[12] The AFCA staff who viewed the images found them extremely distressing. The applicant has a prior conviction for conduct involving images from the Eastern Freeway collision. And, the use of the images of the dead police officers causes distress to the officers’ families.
[12]Copies of these images were tendered at the hearing.
Further, the respondent submits that the prosecution case is strong. There is evidence capable of establishing that the applicant transmitted and distributed the images relating to each of charges 1 and 3. The applicant had access to the images used in the relevant communications and was involved in a disputed insurance claim which provided the basis for the communications. The applicant’s correct personal details were used in the AFCA communication. Further, the morally repugnant nature of the images and the evidence relating to the reactions of those who viewed the images (including the applicant’s own acknowledgment of suffering trauma when thinking about the Eastern Freeway collision and being reminded of its graphic parts) establish that the applicant was reckless as to the likelihood of a reasonable person finding the images offensive.
The applicant also has criminal convictions for similar offending, namely outraging public decency and using a carriage service to menace. The former involved the applicant filming the deceased and dying police officers at the Eastern Freeway collision, zooming in on their bodies and making comments like ‘that is fucking justice, absolutely amazing.’ The latter involved four emails sent by the applicant to a bank manager at Westpac, containing threats directed at him and his family. That offending did not involve the use of images. A personal safety interim intervention order (‘PSIIO’) in which the bank manager is the protected person was made by the Melbourne Magistrates’ Court on 5 September 2019. The applicant also has several dispositions for bail offences, including for committing indictable offences while on bail and contravening conduct conditions of bail. The respondent also argues that these factors indicate an apparent willingness by the applicant to defy previous court orders and to commit offences whilst on bail.
The respondent also submits that time spent on remand is unlikely to outweigh the ultimate disposition in this matter. The matter was listed for contested hearing on 9 August 2022. At the time of contest, the applicant would have served six months on remand. If found guilty of the present offending, a sentencing court would have to consider, among other factors, the seriousness of the offending, the applicant’s priors and that the offences were committed during the operational period of the applicant’s recognisance release order.
Finally, the respondent submits that there is little evidence regarding treatment or support available to the applicant. On 16 May 2022, the applicant was assessed by CISP and found not suitable for the program on the basis that their identified mental health needs required long-term specialist care falling outside the scope of referral pathways available through CISP. The level of case management required for the applicant’s complex needs was beyond what could be offered through CISP’s case management service. Whilst the applicant’s psychologist has agreed to six fortnightly treatment sessions, that does not constitute the level of support sufficient to meet the applicant’s needs.
As to unacceptable risk, the respondent submits that the applicant is an unacceptable risk of endangering the safety and welfare of any person[13] and committing an offence while on bail.[14]
[13]Act, s 4E(1)(a)(i).
[14]Act, s 4E(1)(a)(ii).
The respondent contends that the applicant has distributed images from the Eastern Freeway collision on multiple occasions without regard to the impact of these images on the general public. The images remain accessible to the applicant through their iCloud storage and the applicant refuses to provide passwords to police to enable the images to be deleted.
With regard to the applicant being an unacceptable risk of endangering the safety and welfare of any person, the respondent also refers to three incidents which occurred during the applicant’s period of custody.
(a) On 10 March 2022, Corrections staff intercepted a telephone call between the applicant and Ms Sleep. The applicant expressed frustration about their situation in custody and made various comments, including:
(i) in relation to a prison officer, “How about I come out the front with a fucking axe when I’m out of [prison] and stand in front of your car.”
(ii) in relation to a Magistrate, “For her health and safety, don’t ever put her in front of me again”, and, “She’s fucked mate... I’m going to write her a letter that [she] should get out of fucking Victoria.”
(b) On 10 March 2022, Corrections Victoria was notified by the HCC that the applicant had attempted to make a complaint about not receiving medication whilst in custody. In the course of doing so, the applicant threatened to harm members of the pharmacy staff there and stated words to the effect of, when released, they would track down the staff and ‘put them all on Workcover’.
(c) On 11 March 2022, a letter was intercepted by Corrections staff that the applicant is said to have attempted to post, reportedly including threats towards prison staff and others.
Finally, the respondent submits that the applicant poses an unacceptable risk of committing offences while on bail. The respondent refers to the applicant’s criminal history in relation to bail offences and notes that the alleged offending occurred only two weeks after the applicant was granted bail in the informant Izod matters and while they were subject to a recognisance release order and adjourned undertaking.
Analysis
The applicant has not demonstrated the existence of exceptional circumstances that justify the grant of bail.
The prosecution case against the applicant is strong. Whatever the nature of their past dealings with Victoria Police and whatever the nature of the attitude of some police members towards them might or might not be, the prosecution is based on objective evidence.
The likely penalty in the event that they are found guilty relative to the period spent on remand is of moment in the application, but does not overcome the other surrounding circumstances.
In particular, the applicant presents with a complicated psychiatric profile and complex treatment needs. I do not doubt that the applicant’s psychiatric and psychological issues are causally linked to their alleged offending behaviour. Whilst I accept that their mother and Ms Sleep are supportive of them, the limited psychological support offered by Ms Rotch is simply inadequate to address the applicant’s requirements. Evidence of an established, community-based, comprehensive and detailed treatment plan would be required before the circumstances could unite to produce something exceptional.
Further, given Ms Sleep’s participation in the 10 March 2022 recorded telephone call – which I have listened to, I have some doubt about her suitability as an influence on the applicant. That said, I accept (as I have already said) that she is, nonetheless, supportive of them and viewed as a support by them.
I note that at the hearing of the application, I formed the view that the applicant’s belief that their medical needs were not being met in custody was genuinely held. From the medical records alone I could discern no support for that belief. However, it seems at least possible that this belief stems from the applicant’s psychiatric/psychological issues. The complexity of the treatment required to address those issues should not be viewed as a hurdle too high to overcome, even in the custodial environment.
Even if I had been of the view that the applicant had demonstrated the existence of exceptional circumstances that justify the grant of bail, I would still refuse bail on the basis that the respondent has demonstrated that the applicant poses an unacceptable risk of endangering the safety or welfare of any person and of committing an offence while on bail.
It is of significant concern that the applicant has access to images they took at the time of the Eastern Freeway collision and refuses to allow Victoria Police access to the location of these images so that they may be destroyed. The images are distressing and the applicant’s willingness to use them when pursuing complaint of commercial behaviour is troubling. I am not satisfied that the applicant would not again resort to disseminating those images when next in conflict with an individual or organisation.
I have considered the applicant’s submission that the contents of the phone calls of 10 March 2022 and the letter of 11 March 2022 was nothing more than ‘venting’ and should not be taken as threatening. I accept that there is discernible in both the recorded call and in the letter a tone of frustration and distress. Indeed the applicant often appeared distressed during the hearing of the application. However, I am not persuaded that there is no legitimate basis for concern. The threats uttered are specific and repeated. For example, the statement made in respect of the Magistrate ‘don’t ever put her in front of me again’ was uttered three times, consecutively. It seems that the applicant often finds themselves in conflict with or in opposition to individuals and entities and their response, evident in their criminal history, is often to resort to conduct amounting to a criminal offence, even when then admitted to bail.
I am of the view that no condition of bail would render the risks presented by the applicant acceptable.
Conclusion
It follows that bail must be refused.