Re Ravenhorst
[2021] VSC 481
•12 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0168
| IN THE MATTER of the Bail Act 1977 |
| - and – |
| IN THE MATTER of an Application for Bail by KARL RAVENHORST |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August 2021 |
DATE OF JUDGMENT: | 12 August 2021 |
CASE MAY BE CITED AS: | Re Ravenhorst |
MEDIUM NEUTRAL CITATION: | [2021] VSC 481 |
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CRIMINAL LAW – Application for bail – Applicant charged with armed robbery and other crimes of violence – Whether applicant has demonstrated exceptional circumstances – Whether applicant poses an unacceptable risk – Bail granted on stringent conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 4, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Nibbs | Office of Public Prosecutions |
| For the Accused | Mr M Page | Leanne Warren & Associates |
HER HONOUR:
By application dated 2 July 2021 Karl Ravenhorst seeks a grant of bail in relation to two suites of charges.
The first set of original charges, for which Detective Senior Constable Anthony Murphy is the informant (‘Murphy matters’), were of armed robbery, theft (two counts) and commit an indictable offence whilst on bail. The second set of original charges, for which Detective Senior Constable Simona Tuica is the informant (‘Tuica matters’), were of armed robbery, theft, false imprisonment, possess controlled weapon without excuse, commit an indictable offence whilst on bail, threat to kill, assault in company, assault with a weapon, unlawful assault, intentionally cause injury, theft of motor vehicle, recklessly cause injury, handle stolen goods (two counts), deal with property suspected to be the proceeds of crime (three counts) and prohibited person possess imitation firearm.
On 14 April 2021 the applicant was committed to stand trial in the County Court on the indictable Murphy matters. The charge of commit indictable offence whilst on bail was transferred to that Court pursuant to s 145 of the Criminal Procedure Act 2009 (‘CPA’). The Director of Public Prosecutions (‘Director’) subsequently filed an indictment alleging a single count of armed robbery against the applicant (and two co-accused).
On 15 April 2021 the applicant was committed to stand trial in the County Court on the indictable Tuica matters. The charges of possess controlled weapon without excuse, commit an indictable offence whilst on bail, assault in company, assault with a weapon, unlawful assault and deal with property suspected of being the proceeds of crime (two counts) were transferred to that Court pursuant to s 145 of the CPA. The Director subsequently filed two indictments. The first alleges counts of common assault, armed robbery and false imprisonment against the accused (and two co-accused). The second alleges a count of handle stolen goods and prohibited person possess imitation firearm against the applicant (and a single count of handle stolen goods against a co-accused).
All matters are currently listed for directions hearing on 1 September 2021.
On 31 May 2021 a judge of the County Court refused the applicant bail. Having found that the applicant had demonstrated exceptional circumstances justifying the grant of bail, Her Honour was satisfied by the respondent that the applicant posed an unacceptable risk of the s 4E(1)(a) Bail Act 1977 (‘Act’) factors.
Summary of Alleged Offending
Murphy Matters
The applicant, together with his co-accused, Nicholas Vine and Ella Carley, were staying in a Melbourne CBD apartment booked in the name of Michael Costa for the period 1 to 7 March 2020. On 6 March 2020, Carley used the online dating site ‘We met’ to chat to Merlin Muaremi. She invited him to the apartment.
Mr Muaremi arrived in the foyer of the building at about 8.30pm. He was met by Carley, who took him to the apartment and let him inside. She then stated that she had to collect a food order downstairs and would return soon.
Immediately after she left, the applicant and Vine appeared. The applicant was in possession of a set of knuckledusters which had a protruding knife. Vine was armed with a kitchen knife. They told Mr Muaremi to empty his wallet and pockets while Vine threatened to stab him. The applicant and Vine stole about $650 in cash and Mr Muaremi’s mobile telephone before letting him go. Mr Muaremi went downstairs and rang 000. Police attended a short time later. Carley was arrested in the foyer of the apartment.
On 7 March 2020 police executed a search warrant at the apartment. Items seized included assorted identity cards, a knife, knuckledusters and two snap-lock bags containing a white crystal substance. The applicant’s DNA was later found on both the knuckledusters and knife.
CCTV footage from the apartment building allegedly depicts the applicant, Carley and Vine coming and going from the apartment in the hours prior to the alleged offending, Carley meeting Mr Muaremi in the foyer immediately before the alleged offending and all three co-accused meeting on level nine of the building immediately afterwards. The tattoos of the applicant are said to match those depicted in the footage.
The applicant was arrested on 21 May 2020. Vine was arrested on 24 May 2020.
Tuica matters
On 13 May 2020 Taner Hikmet went on a date with Carley. Afterwards, Mr Hikmet discovered that she had left her handbag in his car. It contained her driver’s licence, a bankcard in the name of ‘Benjamin Aimsley’ and a bottle holding approximately 60 to 70 ml of clear liquid. Mr Hikmet contacted Carley to return the bag but she did not reply.
On 16 May 2020 Mr Hikmet logged onto the dating website ‘Skout’ and began to chat to someone using the profile name ‘Bagza* SwEt’. They agreed to meet at 8.00pm at 466 Collins Street. Mr Hikmet arrived at about 8.25pm. He was approached by Imogen Verley, who identified herself as Bagza. He followed her inside the neighbouring building at 464 Collins Street and then into the elevator. The applicant and Vine then also entered the elevator. Once inside the elevator the applicant spoke with Mr Hikmet before punching him to the jaw and nose.
When the elevator doors opened on the lower ground floor, the applicant pushed Mr Hikmet to the hallway floor before producing a knife and swinging it towards Mr Hikmet’s face. Vine held another knife to Mr Hikmet’s chest. The applicant said words to the effect of ‘you fucked up, you’ve got something of mine and it belongs to me’. Mr Hikmet said that he did not understand. The applicant replied ‘my bank card’. Mr Hikmet took that to be a reference to the bank card inside Carley’s handbag and said that he was happy to return it. The applicant then threatened to kill him.
Mr Hikmet attempted to flee. He was followed by the applicant, still in possession of the knife. The applicant stated that he would not let Mr Hikmet go until he was paid $1,000. The applicant walked Mr Hikmet to a nearby 7-Eleven Store while Vine and Verley remained behind. Mr Hikmet attempted to withdraw money from an ATM but the transaction was declined due to insufficient funds. The applicant then took Mr Hikmet’s phone and demanded his CBA app PIN. When it was provided, the applicant saw that there was no money in the account. He told Mr Hikmet to arrange a transfer of $1,000. Mr Hikmet contacted his brother and did so. The applicant then withdrew $1,000. He purchased some drinks before returning $100 to Mr Hikmet, stating ‘I feel sorry for you,’ and leaving.
Mr Hikmet handed Carley’s bag into police and reported the incident. The following day he received medical treatment for a fracture to his nose.
On 17 May 2020, police attended 464 Collins Street. They found that the pass used by Verley to gain access to the building had been reported as lost or stolen. Police obtained CCTV footage, which is alleged to depict the applicant, Vine and Verley arriving and departing at various times on 16 May 2020, as well as Verley entering the building with Mr Hikmet at 8.28pm and his alleged assault by the applicant and Vine shortly thereafter. CCTV footage obtained from the 7-Eleven store is alleged to depict the applicant and Mr Hikmet using an ATM.
On 19 May 2020 police observed the applicant drive a silver Audi displaying ‘cloned’ registration plates. On 21 May 2020 police attended a St Kilda residence at which the applicant and the silver Audi were present. Upon seeing police, the applicant attempted to walk away. When spoken to, he initially provided a false name. When his identity was confirmed, the applicant was arrested. Subsequent enquiries revealed that the Audi was reported stolen between 12 and 13 May 2020. Runners allegedly worn by the applicant at the time of the armed robbery on 16 May 2020 were seized from the St Kilda residence.
On 22 May 2020 the Audi was examined. Clothing alleged to match that worn by the applicant on 16 May 2020 along with a black imitation firearm were found. The applicant’s fingerprints were found on the cloned registration plates.
Vine and Verley were both arrested at an Armadale residence on 24 May 2020. Police located photographs of the applicant and the knife said to have been used by him against Mr Hikmet on 16 May 2020 at that residence. CCTV footage from that address depicts the applicant driving to that address in the stolen Audi on 20 May 2020. His fingerprints were also located on a fraudulent set of number plates affixed to a different stolen vehicle at that address.
Legal Considerations
Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[1] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant ‘surrounding circumstances’ including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[1]The applicant is accused of committing Schedule 2 offences (armed robbery and committing an indictable offence whilst on bail – Act, Schedule 2, items 22(a) and 30) while on bail for Schedule 2 offences (committing an indictable offence whilst on bail – Act, Schedule 2, item 30) and while subject to a CCO made in respect of another Schedule 2 offence (trafficking in a drug of dependence – Act, Schedule 2, item 24(b)).
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 shown satisfactorily, 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. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[2]
[2]The Act, s 4E(3).
I am to apply and interpret the Act having regard to the guiding principles delineated in s 1B(1).
Applicant’s personal circumstances
The applicant is 35 years old. He ceased his secondary schooling in year 9 to take up a flooring apprenticeship. Although he failed to complete that apprenticeship, the applicant held employment in the field for a number of years, including in Darwin and Perth. He returned to Melbourne in 2012 and commenced work as a labourer. He continued in that role for about 18 months, until his escalating methylamphetamine use resulted in the termination of his employment.
The applicant ceased drug use whilst serving a sentence of imprisonment imposed in this Court in 2015. He was released in 2017 and successfully completed parole which was conditional on regular drug testing, a curfew and GPS monitoring. The applicant then worked for his father in a nursery before resuming work in flooring. He then recommenced use of methylamphetamine and experienced gambling problems. Since his remand for the instant offences, the applicant has been treated with methadone and has engaged in counselling to address his substance abuse and gambling issues.
Criminal History and outstanding matters
The applicant appeared twice in the Children’s Court for offending that resulted in good behaviour bonds without conviction. His adult criminal history, commencing in 2008, is more extensive and includes convictions for trafficking and possessing drugs of dependence, aggravated burglary, burglary, intentionally causing serious injury and various weapons, driving and dishonesty offences. His history also discloses a number of breach offences, namely contravention of a Community Corrections Order (CCO), breach of an Intensive Correction Order, failing to answer bail and committing an indictable offence whilst on bail.
The CCO was on foot at the time of the offending alleged. Its previous breach was occasioned by an overall ‘pattern of unsatisfactory compliance’ with its conditions.
Additionally, the applicant is currently on summons for offences alleged to have been committed between 15 and 25 April 2020 of theft of a motor vehicle, using a false document (two counts), trafficking in a drug of dependence (methylamphetamine), possessing a drug of dependence (three counts – methylamphetamine, cannabis, gamma-hydroxybutyrate), possessing a prohibited weapon without exemption, dealing with property suspected of being the proceeds of crime and committing an indictable offence whilst on bail (six counts). Those matters are next listed for special mention in the Frankston Magistrates’ Court on 4 October 2021.
Applicant’s materials and contentions
The applicant relies upon the affidavit of Ms Leanne Warren, solicitor, affirmed 1 July 2021, additional material subsequently filed with the Court and written submissions dated 6 August 2021.
He accepts that he must demonstrate exceptional circumstances to justify the grant of bail. Three major factors are argued to combine to do so, namely delay, the strength of the prosecution case and the availability of residential rehabilitation at ‘The Cottage’.
Noting that he was on remand for some 10 months before being committed for trial, that the matters are next listed for a directions hearing on 1 September 2021 and the unlikelihood of trial listings before the end of 2022 or beginning of 2023, the applicant argues that he may be remanded for a longer period than any sentence ultimately imposed in the event he is convicted. Further and separately, the applicant argues that the uncertainty of further ‘lock down’ responses to the COVID-19 pandemic exacerbates that situation and also impacts upon the nature of the custodial environment.
The applicant disputes the charges. He challenges the account of the complainant in the Murphy matters. And he argues that the prosecution case in the Tuica matters is not strong. One indictment turns upon an issue of identification. The other requires the prosecution to prove knowledge of the status of two vehicles and the presence of the firearms.
DSC Murphy gave evidence on the application. Under cross-examination he agreed that at issue in the most serious of the Tuica matters was identification of the applicant and that the case was based largely on the CCTV footage. He agreed that the man in the footage alleged to be the applicant was for most of the time masked. Identity was sought to be proved by the tattoo on the calf of that man. (Both the applicant and the man in the CCTV footage seemingly have the same marking on their left calf.) He said that the prosecution also relied upon shoes and clothing later seized under warrant, albeit that they were found in shared premises.
The applicant has been accepted into ‘The Cottage,’ a 16-week residential program based in Shepparton. Ms Maria Hutchison, an addiction treatment counsellor and CEO of The Cottage, was called to give evidence about the program in addition to the written material filed.
The Cottage is comprised of three residential houses. Its program is based on a therapeutic community model and addresses long term mental illnesses, personality disorders and addiction issues. Residents are required to abstain from alcohol and other drugs for the duration of the program (prescribed medications aside). Sixteen weeks is the minimum time taken to complete the program, which consists of four phases. During the first phase, which lasts four weeks, residents are not permitted to have electronic devices nor to leave the premises. Thereafter the program allows increased freedom and access to telephones. The path through the program is not automatic, but rather dependent upon the progress of each resident.
The facility is staffed 24 hours a day, although the overnight shift is not a ‘stand-up’ shift. It has no perimeter fence. It does have CCTV coverage, except in bedrooms. Residents are required to undergo weekly urinalysis.[3] In the event that staff suspect a resident of using drugs, an ‘instant’ drug test is performed. During the week there is a residence wide curfew between 6pm and 6am. On weekends that curfew lasts between 9pm and 6am. Residents, who share a room with one other, are required to be in their bedroom by 10pm. There is a bed check at 11pm and a wake up at 7am, followed by an 8.30am ‘check in’. Chores, counselling and day/afternoon leave (if permitted) take place until the evening. Twelve-step programs are done after dinner. Each resident is required to pay $5,500 and then $250 per week from Centrelink benefits. When the program is completed, transitional housing is available in the Shepparton area, but is not mandatory.
[3]Ms Hutchison gave oral evidence that residents undergo two urine drugs tests per week. However, in a letter from The Cottage dated 25 March 2021, produced as Exhibit LW-3 in the affidavit in support of the application for bail, it states that residents are subject to one urine drug screen per week.
Ms Hutchison said that in the event that the applicant was bailed to reside at The Cottage, the informant, Shepparton police and the applicant’s solicitors would be informed immediately upon any staff member becoming aware of a breach of bail conditions. She said that in the four years that The Cottage has been operational, it has had over 260 residents and only two absconders.
In addition to these major factors, the applicant also relies upon family support. He has maintained regular contact with his parents whilst on remand. They have provided a letter of support in which they express their confidence in his capacity to engage with The Cottage program to address his gambling and drug addictions. The mother of the applicant’s teenage daughter has also written a letter in support of the applicant undertaking rehabilitation for the sake of his child.
The applicant accepts that he poses a risk of the s 4E(1) Act factors but argues that residing at The Cottage, together with other conditions, would render the risk acceptable.
Respondent’s materials and contentions
The respondent relies upon the affidavit of Megan Heap, solicitor, affirmed 2 August 2021 to oppose bail.
The respondent argued that the applicant has failed to demonstrate the existence of exceptional circumstances that justify the grant of bail. In particular the respondent disputes the characterisation of the strength of the prosecution case by the applicant. While conceding that there is a measure of delay, the respondent did not accept that there is a likelihood that the period of remand will exceed any sentence imposed in the event of conviction, given the seriousness of the charges and the applicant’s criminal history. The respondent also argued that ‘custody matters’ are being listed at short notice in the County Court and it is not clear that the applicant’s trials will not be heard before the end of 2022 or the beginning of 2023.
Those arguments were not forcefully pressed. The major focus of the respondent’s submission was that the applicant posed an unacceptable risk of the s 4E(1) Act factors and that residence at The Cottage, together with other conditions, would not ameliorate that risk.
The respondent argued that the applicant was an unacceptable risk of endangering the safety and welfare of any person because the offending alleged in both the Murphy and Tuica matters was violent. And further, that the use of violence in the Murphy matters was random and motivated by greed. The applicant has a history of violence, including a conviction for intentionally causing serious injury in circumstances of gross violence for which he was sentenced in this Court to five years’ imprisonment with a non-parole period of three years and three months.
The respondent further submits that the applicant has shown disregard for court orders such that he is an unacceptable risk of committing an offence while on bail and failing to surrender into custody in accordance with the conditions of bail. He failed to appear on bail in 2019 and was convicted in 2021 for committing an indictable offence while on bail. Both the Murphy and Tuica matters involve charges of committing an indictable offence while on bail, as do the outstanding matters for which he is currently on summons. Additionally, these matters are alleged to have been committed during the operational period of a CCO. And, DSC Murphy expresses concern that the applicant would continue to offend in order to support his drug habit.
It is submitted that the applicant has a history of seeking vigilante justice such that he poses an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice. It is argued that Mr Hikmet was targeted for failing to return a bag belonging to the co-accused. Both Mr Hikmet and Mr Muaremi are opposed to the grant of bail.
The respondent further argues that given his history, The Cottage does not provide a secure enough environment to render the risks posed by the applicant acceptable in the event that he was bailed to reside there, as he could abscond overnight or during unsupervised leave.
Consideration
I am satisfied that the combination of circumstances relied upon by the applicant demonstrate the existence of exceptional circumstances that justify the grant of bail.
The applicant has been on remand since May 2020. Based on the material published by the County Court prior to the lockdown currently in effect in Melbourne, the earliest date that the applicant’s trials will be listed is at the end of 2022. Given the current lockdown and the reasonable expectation of further periods of lockdown in 2021, it seems more probable that the applicant will be tried in 2023.
Given the applicant’s criminal history, I accept that in the event he is convicted of at least some of the Murphy and Tuica matters he is very likely to receive a not insignificant custodial sentence. Nonetheless, a likely period of remand in excess of two and a half years is also not insignificant. Further, restrictions upon society in response to COVID-19 also affect those in custody and make the experience of remand more onerous.
The applicant’s treatment with methadone commenced in June 2020 and is ongoing. He has used his time in custody to complete numerous courses and attend therapeutic services to address both substance abuse and gambling addiction. There are materials before the Court from both Caraniche and Banyule Community Health. The applicant has attended 18 individual counselling sessions with a psychologist employed by Caraniche. He self-referred for gambling help and as of March 2021 had engaged in 16 sessions with Banyule Community Health. The counsellor writes that the applicant has been open and engaged about counselling for gambling harm, drug use and mental health and would be an ‘excellent candidate’ for further counselling if he remains motivated and engaged. The residential program offered at The Cottage offers the applicant the opportunity to build upon these steps.
In short I am satisfied that the surrounding circumstances, in particular the issues attendant upon the delay to trial and the availability of residential rehabilitation to a man seemingly ready to undertake treatment combine to produce exceptional circumstances that justify the grant of bail.
Turning then to the issue of unacceptable risk, I accept that the applicant does present a risk of the s 4E(1)(a) factors given his history of offending, his past disregard for court orders and his history of drug and gambling addiction. However, I am satisfied that the imposition of stringent bail conditions, including judicial monitoring, will mitigate that risk so it is not unacceptable.
While The Cottage is not a secure, custodial environment, it is monitored as to physical presence, drug use and participation in its programs. In this regard I accept the submission of the applicant that its intensive supervision is the next best thing short of custody. It will afford the applicant the opportunity to address the issues underlying his offending in an immersive program, distance himself from his former associates and lifestyle and gain and implement his capacity for self-reliance and responsibility. If the applicant chooses to leave The Cottage he will not be prevented, but the informant and local police will be notified immediately and he will be liable to arrest for breaching his bail. Similarly the informant and local police will be notified in the event that any other condition of bail is breached.
Conclusion
The applicant is admitted to bail on 13 August 2021 upon his own undertaking, to attend the Melbourne County Court on 1 September 2021, with conditions that he:
1.Upon release from custody pursuant to this order, travel directly to The Cottage, 6-8 Andrews Road, Shepparton in the state of Victoria (‘The Cottage’).
2. Reside at The Cottage until further order of a court.
3.Participate in The Cottage residential program for a minimum of 16 weeks, as directed by Ms Maria Hutchison or her nominee, and follow all lawful instructions and directions of Ms Maria Hutchison or her nominee.
4.Present to the informant/s or their delegate, who may attend at The Cottage from time-to-time to confirm the applicant’s presence at The Cottage.
5.Not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except as prescribed by an appropriately qualified medical practitioner.
6.Not contact Nicholas Vine, Ella Carley or Imogen Verley, directly or indirectly, whether personally, by telephone, email, social media or other means.
7.Not contact or approach any witness for the prosecution, other than the informant/s.
8.Appear before this Court by means of audio-visual link for judicial monitoring to review compliance with bail at 9:00am on Tuesday, 30 August 2021, and any further dates this Court appoints during the course of this order.
9.Attend the County Court of Victoria, either in-person or by means of audio-visual link as determined by that court, on 1 September 2021.
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