Re Richardson
[2020] VSC 289
•22 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0103
| IN THE MATTER OF THE Bail Act 1977 (Vic) | |
| and | |
| IN THE MATTER OF AN APPLICATION FOR BAIL BY JARROD RICHARDSON | |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2020 |
DATE OF JUDGMENT: | 22 May 2020 |
CASE MAY BE CITED AS: | Re Richardson |
MEDIUM NEUTRAL CITATION: | [2020] VSC 289 |
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CRIMINAL LAW – Application for Bail – Accused charged with 19 offences including intentionally causing injury, assault with a weapon, aggravated burglary, stalking, attempting to pervert the course of justice and harassing a witness – Accused has significant criminal history – Whether accused can demonstrate a compelling reason that justifies the grant of bail – Whether accused is an unacceptable risk – Delay and impact of COVID-19 pandemic – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Willard | Michael J Gleeson & Associates |
| For the Respondent | Mr N Hutton | Office of Public Prosecutions |
HER HONOUR:
Introduction
Jarrod Richardson applies for bail.
He has been in custody since 27 June 2019, when he was arrested and charged by two different informants in respect of two suites of alleged offending, comprising 19 charges in total.
Detective Senior Constable Paul Woods preferred 17 charges relating to the period 1 March and 26 June 2019. They are:
· Intentionally causing serious injury;
· Recklessly causing injury;
· Theft (9 charges);
· Assault with a weapon;
· Robbery;
· Aggravated burglary – person present;
· Extortion with threat to kill;
· Burglary;
· Stalking.
Detective Senior Constable Ian Brown preferred 2 charges alleged to have been committed on 13 May 2019. They are:
· Attempting to pervert the course of justice; and
· Harassing a witness.
The applicant has applied for and been refused bail in the Magistrates’ Court three times: on 28 October 2019, 30 January 2020 and 20 April 2020. On each occasion the applicant has been found to be an unacceptable risk of (at least) the majority of the factors delineated in s 4E(1)(a) of the Bail Act 1977 (Vic) (Act). On the first and last occasion, a magistrate was not persuaded that the applicant had demonstrated a compelling reason justifying the grant of bail.
The committal hearing of the charges has been twice delayed. On 16 December 2019 the matter was relisted for 18 May 2020 as, for reasons unknown, no magistrate was available to hear the committal. On the latter date, the matter was adjourned to 7 December 2020 due to the operational restrictions of the Magistrates’ Court in the wake of the COVID-19 pandemic.
General Bail Principles
The applicant falls within the ‘shows compelling reason’ category.[1] He bears the burden of satisfying the Court as to the existence of a compelling reason that justifies the grant of bail. In considering whether a compelling reason exists, I must take into account all of the ‘surrounding circumstances’ as defined in s 3AAA of the Act. For the applicant to show compelling reason, a synthesis or balancing of all relevant matters must compel the conclusion that his detention in custody is not justified. It is not necessary for him to show a reason which is irresistible or exceptional.[2]
[1]The Act, ss 4AA(3) and 4C(1A). Aggravated burglary and stalking are both Schedule 2 offences under the Act. With respect to stalking, I note that the applicant was convicted of intentionally causing injury on 6 April 2017 at the Ringwood Magistrates’ Court – see clause 8(a) of Schedule 2.
[2]Re Ceylan [2018] VSC 361, [46]-[47].
If I am satisfied that a compelling reason exists, I must then consider whether, again having regard to the surrounding circumstances, that the prosecution has established that there is an unacceptable risk that, if released on bail, the applicant would do any of the s 4E(1)(a) matters. That is, whether he would endanger the safety or welfare of any person; commit an offence; interfere with a witness or otherwise obstruct the course of justice; or fail to surrender into custody.
And, when interpreting the Act, I must have regard to the guiding principles established in s 1B(1).
Alleged Offending
Informant Woods
For a period of one or two months in 2018 the applicant lived at the Mitcham residence of Mr Myles Kummrow, who is the alleged victim of the offending. The applicant was then gaoled on 7 September 2018 (in relation to unrelated offending). During his time in custody he apparently developed a belief that Mr Kummrow had stolen his property. The applicant was released from custody on 19 February 2019.
On a date between 1 and 22 March 2019 the applicant attended Mr Kummrow’s house at about 1am. Upon being invited inside, he accused Mr Kummrow of stealing his property. It is the prosecution case that the applicant then struck Mr Kummrow to the head with a laptop and punched him once to the face before taking $1,100 from Mr Kummrow’s wallet.
Mr Kummrow suffered a cut to the top of his head and bruising to his face. He did not report the incident to police immediately due to fear of repercussion and in the belief that the applicant would not bother him again.
At about midday on 23 March 2019, the applicant again attended Mr Kummrow’s house. The prosecution alleges that he became aggressive towards Mr Kummrow, demanding that he hand over his mobile phone and adjust CCTV cameras at his residence to face a different direction. Mr Kummrow complied. The applicant then used the phone to call an unknown person, stating ‘he’s here, come now’.
Mr Kummrow ran from his house and took refuge behind a neighbour’s rubbish bins. He told that neighbour that someone had been chasing him and was still in his house. As Mr Kummrow and the neighbour together approached Mr Kummrow’s house, they saw the applicant approach them in a highly agitated state. Mr Kummrow retreated and the applicant again re-entered his house.
Police attended shortly thereafter but the applicant could not be located. Mr Kummrow told police that he did not wish to make a statement due to fear of retribution.
At about 8.30pm on 28 March 2019 Mr Kummrow was on the roof of his house with a friend, Ms Miller. They were flying a drone. From the roof they both observed the applicant walk through Mr Kummrow’s front gate. CCTV footage from the house depicts the applicant rummaging through drawers and cupboards. The prosecution allege that the applicant stole a mobile phone, a jump starter car kit, $15 cash and a backpack.
Mr Kummrow notified police. Both he and Ms Miller provided statements.
At about 6 am on 30 March 2019 Mr Kummrow received a number of calls from a private number on his mobile telephone handset. He left them unanswered. Mr Kummrow then received a text message from a payphone. It read ‘if you don’t answer the private number this morning I will email all data to Rachel and your family for a start. All this and me can go away’.
Mr Kummrow then answered his phone when it rang. The caller was the applicant. He agreed to meet the applicant in the carpark of McDonald’s in Croydon. The prosecution case is that at that meeting the applicant demanded that Mr Kummrow meet him again that evening to produce $5,000 and one litre of the drug GHB [gamma hydroxybutyrate] and stated that if he did not, the applicant would go to his house with a sawn off shotgun. The meeting was captured by CCTV footage.
Mr Kummrow returned home and contacted police. Later that evening, after failing to meet the applicant again, he began to receive calls from a private telephone number which he left unanswered. Later still Mr Kummrow heard a loud banging noise at his front door. He observed the applicant via the CCTV system and hid in his bedroom.
The prosecution allege that the applicant then walked around the outside of the house, peering in windows and calling out to Mr Kummrow to be let inside. He also disconnected the CCTV at the front door and led Mr Kummrow’s dog out of the front gate in what the prosecution say was an attempt to lure Mr Kummrow outside. Mr Kummrow remained inside until the applicant left, at which time he also left and slept in his car because of his fear that the applicant would return.
Mr Kummrow returned to his house the following morning. He found the front door had been kicked in and the entire house had been ransacked. The digital video recording unit for his CCTV was missing. Police attended and located blood on the front door lock. Later analysis confirmed that a DNA sample taken from the blood was a match for the DNA of the applicant.
On 6 April 2019 the applicant again attended Mr Kummrow’s house and spoke to him over the fence. The prosecution case is that the applicant told Mr Kummrow that he was now willing to take $2,000 rather than $5,000 and that if he got the money he would return Mr Kummrow’s property and leave him alone.
Following this exchange, Mr Kummrow did not stay in his house for about a month due to fear that the applicant would return and harm him.
The prosecution case with respect to this alleged offending is drawn primarily, but not exclusively, from three statements of Mr Kummrow dated 28 March 2019, 29 March 2019 and 17 July 2019.
Informant Brown
In May 2019 the applicant’s half-brother, Mr Corey Price, was staying in the home of Ms Danielle Payne and her family in Healesville. The applicant and Ms Payne are known to each other, having grown up in the same area.
On 6 May 2019 following a phone call from her partner, Ms Payne confronted Mr Price with an allegation that he had used a needle in front of her children. The confrontation took place in her home. She told him to pack his things and leave the house by the end of the day.
The prosecution case is that Mr Price then punched three holes in a wall before grabbing Ms Payne by the throat and repeatedly punching her to the head. He then threw her to the ground. Ms Payne tried to stand and, as she did so, Mr Price kicked her to the face, head and back, causing her to fall to the ground again. Ms Payne suffered pain and bleeding from the mouth. Before he left the house, Mr Price produced a Stanley knife and said to Ms Payne words to the effect of ‘don’t call the cops, you fucking dog’.
Ms Payne reported the incident to police. At the time of the report police observed her to have a split lip, bruising and a ripped T shirt stained with blood.
Shortly thereafter, police were contacted by a witness who had observed a man in Healesville with a claw hammer hanging out of his pants. The man was described as being in a highly agitated stated and was overheard saying to someone that he had ‘just bashed her’.
Police attended the scene and arrested Mr Price, who was found in possession of a Stanley knife and claw hammer. When interviewed, Mr Price denied the allegations and said that he had been defending himself against Ms Payne. Mr Price was charged and remanded in custody.
On 7 May 2019 Mr Price telephoned his mother from custody and asked her to organise the applicant to visit Ms Payne so that she would ‘not come to court’.
On 14 May 2019 it is alleged that the applicant visited Ms Payne’s home. She was not in, but the applicant spoke to her partner. This visit was followed by a number of text messages between Ms Payne’s partner and her and also between her and the applicant.
Ms Payne and her cousin then met with the applicant at the Crown Hotel in Lilydale before, at the request of the applicant, moving to a ‘dark area’ of a nearby road. It is the prosecution case that at that area the applicant banged his fist on the window sill of Ms Payne’s car while demanding that she retract her statement against Mr Price. The applicant gave Ms Payne $50 cash and two points of ice.
On 15 May 2019 during a recorded telephone call between Mr Price and the applicant, the applicant said that he had spoken with Ms Payne and stated ‘I’ll get it sorted out. It’s getting organised.’
Between 15 May and 1 June 2019 the applicant attempted to speak to speak to Ms Payne by telephone three times. On 8 June 2019 he sent her a text message requesting that she call him. Ms Payne did not answer.
On 13 June 2019 the applicant attended Ms Payne’s home and asked her why she had not retracted her statement against Mr Price. He suggested that they could go to a pharmacist together for her to sign a statutory declaration that he would compose for her. The applicant threatened to make the lives of Ms Payne and her partner a ‘fucking hell’ if she did not listen to him. He then picked up Ms Payne’s car keys and threatened to take her car to show her that he ‘means business’.
The following day Ms Payne attended the Healesville Police Station and said that she wanted to retract her statement against Mr Price. When police enquired as to the reason, she said that she was receiving pressure from the applicant to do so. After receiving advice, Ms Payne relocated her family in an attempt to thwart the applicant contacting her.
Arrest
On 27 June 2019 the applicant presented at Maroondah Hospital with a stab wound to the side of the chest, a broken nose and fractures to his cheek and eye socket. The circumstances of these injuries is unknown and not presently relevant. But given their nature, police were called and ascertained that the applicant had given the hospital a false name. He was arrested and remanded in custody in respect of both the informant Woods and informant Brown matters.
Submissions
The Applicant
The applicant relies on a combination of factors to establish a compelling reason why a grant of bail is justified.
Foremost among them is delay. The applicant has now been in custody nearly 11 months. His committal has been twice adjourned and will now not take place until December 2020. He cannot expect his trial to be listed before late 2021 or early 2022. The resulting delay of two and a half years is described as ‘unusual, inordinate and alone constitute[ing] a compelling reason’.[3] The applicant relies upon Mokbel v DPP (No 2).[4] The applicant submits that he has a right to be tried without unreasonable delay and, further, is entitled to rely upon the presumption of innocence.
[3]Affidavit of Thibaut Clamart affirmed 7 May 2020, [37] (‘Affidavit in Support’).
[4][2002] VSC 312 (‘Mokbel’).
The applicant did not submit that the anticipated delay would exceed the minimum likely term of imprisonment in the event that he was convicted.
But, the applicant did submit that the strength of both prosecution cases is weak. The informants were cross-examined on the application. The credibility and reliability of Mr Kummrow and Ms Payne were questioned. Mr Kummrow was termed ‘a known drug user and drug dealer’[5] and various discrepancies in his police statements were highlighted. The applicant submitted that the allegations of each complainant largely lack corroboration and the CCTV footage with respect to the Woods matters is equivocal. The fact that various witnesses have declined to make statements was noted.
[5]Affidavit in Support, [31 (a)].
The applicant also relies upon his personal circumstances. As a young child he suffered physical violence by his father. He has struggled with drug use and suicidal ideation. At the age of 17 he stabbed himself in response to feelings of rejection by his then girlfriend’s mother. He is now 40 years of age. He has four children with three different partners. The eldest is now aged 22 years and the youngest, with his current partner, is aged two years.
The applicant’s mental health is a further factor. A psychological report of Mr Jeffrey Cummins dated 23 January 2020 is relied upon. Mr Cummins diagnoses the applicant as having a major depressive disorder of moderate severity. Mr Cummins also ‘tentatively’ diagnoses the applicant with ‘a Trauma-and-Stressor-Related Disorder in the form of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct’ and further states that he ‘may’ attract the diagnosis of Post-Traumatic Stress Disorder. The applicant presents as being of low average intelligence or slightly below average intelligence. He reports frequent ruminative negative thinking, chronically low self-esteem and feelings of hopelessness.
The applicant also submits that the COVID-19 precautionary measures adopted in the custodial environment have had an onerous impact upon him. He has been unable to receive personal visits from his mother and partner and unable to continue with rehabilitative programs. In this regard, the applicant relied upon observations of Croucher J in Thomas v Kitching.[6] Particularly, it was submitted that given his major depressive order and possible post-traumatic stress disorder, the applicant’s present custodial conditions ‘could have a catastrophic impact on his mental health and wellbeing’.[7]
[6][2020] VSC 206, [5] (‘Thomas v Kitching’).
[7]Affidavit in Support, [43].
The applicant submits that his successful participation in various custodial rehabilitative programs prior to the COVID-19 restrictions evidences a desire to live well in the community. The programs he has undertaken have included those relating to anger management, distress management, methamphetamine use and community transition. A co-ordinator of the ‘Inside Out Prison Exchange Program’, in which the applicant has been a participant since February 2020, described him as an ‘invaluable’ part of the group.
Finally, the applicant relies upon the supports available to him in the community. He has been recommended by the Court Integrated Services Program (CISP) Remand Outreach Program (CROP) for community referral. That recommendation does not extend to the need for case management due to the applicant’s ‘limited areas of treatment concern and ability to independently access supports’.[8] Arrangements have also been made for the applicant to obtain a Mental Care Health Plan from a general practitioner should he be released on bail.
[8]CROP Report dated 18 May 2020, 1.
In answer to the respondent’s contention that the applicant poses an unacceptable risk of all of the factors delineated in s 4E(1)(a) of the Act, the applicant submits that the 11 months the applicant has now served on remand represents a ‘circuit breaker’. He is currently drug free and has good support available to him in the community. He can reside with his mother in Rosebud. And, further, any risk he poses can be ameliorated by strict conditions.
Affidavit of the Applicant
At 5.46pm on the day after the hearing the applicant’s solicitor, Mr Thibaut Clamart, sent an email to my chambers attaching an affidavit of the applicant. The email stated that he was instructed by the applicant to ‘circulate’ the affidavit. Mr Clamart stated that he did not seek to make further submissions but noted that the Office of Public Prosecutions may ‘wish to comment’. The affidavit does not, on its face, bear the date it was affirmed. It simply notes that it was affirmed before a justice of the peace at Ravenhall Correctional Centre on an unspecified day in May 2020. Thus it is unclear whether the applicant affirmed the affidavit before or after the hearing of the application on 19 May 2020. It is also unclear for how long it has been in the possession of the applicant’s solicitors. Further, the affidavit purports to be made pursuant to s 123C of the Evidence Act 1958.[9]
[9]The procedure for the administration of oaths and affirmations is governed by the Oaths and Affirmations Act 2018.
On 21 May 2020 the prosecution solicitor, Mr Nicholas Cescato, sent an email to my chambers submitting that either the applicant should make himself available for cross-examination or the affidavit should be retracted.
Later the same day, again by email to my chambers, Mr Clamart said that the applicant would not be available for cross-examination and it would be left to the Court’s discretion whether ‘to give any weight, if at all’ to the affidavit.
This is highly irregular. Affidavits are not documents to be circulated via email for a judge to determine how to treat. If the applicant wished to give evidence on the basis of an affidavit, he should have done so at the hearing and submitted to cross-examination on that document by the prosecutor. And, if the applicant’s solicitors sought to reopen the application upon receipt of further evidence (if indeed that was the case), an application to do so should have been made in the proper manner.
I have disregarded the affidavit of the applicant.
The Respondent
The respondent submits that the applicant has failed to demonstrate a compelling reason that justifies the grant of bail.
The respondent submitted that the delay in this matter, particularly the delay between arrest and committal is long, but neither of itself or in combination with other circumstances, shows a compelling reason.
While the custodial environment restrictions consequent upon the COVID-19 pandemic will make the applicant’s time in custody more difficult, it was submitted that there was nothing in the psychological material that shows any particular difficulty specific to him. Further, the prosecution case was said to be far from marginal. It was not a case where the defence would be one of ‘entire innocence’. Given the seriousness of the alleged offending and the extensive criminal history of the applicant, it is highly unlikely that any non-parole period ultimately imposed would be less than the remand period.
The respondent further submits that the applicant is an unacceptable risk of all of the s 4E(1)(a) factors.
The affidavit of the informant Woods states that the applicant has 10 prior convictions for failing to answer bail.[10] Police officers have had difficulty locating the applicant over quite some years. Police hold concerns for the safety and welfare of the complainant in light of the seriousness of the alleged offending and its escalating nature. Detective Woods affirms that the applicant is a recidivist and violent offender. His criminal history shows that he recommences offending behaviour upon release from gaol.
[10]The affidavit of the informant Brown states that the prior convictions for this offence number eight. At the hearing of the application the prosecutor submitted that the true number was seven. An analysis of the criminal history of the applicant, a difficult task given the format, shows the number to be seven.
The affidavit of the informant Brown states that the applicant is a ‘career criminal’[11] with an extensive criminal history. That history demonstrates that he returns to crime upon release from each period of incarceration. The applicant has eight prior convictions for failing to answer bail and seven prior convictions for committing offences whilst on bail. The applicant has breached any court ordered rehabilitation programs and has shown no willingness to undertake rehabilitative steps outside a custodial environment. Detective Brown states that the applicant ‘drives like a maniac’.[12] He has an extensive history of driving at high speed and in a dangerous manner in stolen vehicles bearing cloned plates. He shows total disregard for other road users, including police. Detective Brown states that the applicant will go to great lengths to avoid apprehension, using false names and changing phone numbers and addresses on a regular basis.
[11]Affidavit of Ian Brown affirmed 14 May 2020, [37] (being Exhibit NGC5 to affidavit of Nicholas Cescato sworn 15 May 2020).
[12]Affidavit of Ian Brown affirmed 14 May 2020, [43].
The affidavit also affirms that the applicant has a ‘known history’[13] of interfering with witnesses. Police experience reluctance by witnesses to make statements when they know that the applicant is involved. Detective Brown affirms that the complainant is ‘terrified’[14] of the applicant being granted bail.
[13]Affidavit of Ian Brown affirmed 14 May 2020, [45].
[14]Affidavit of Ian Brown affirmed 14 May 2020, [47].
Each of Detectives Woods and Brown gave evidence at the hearing of the application. Detective Woods was cross-examined as to the weaknesses in the prosecution case and, in particular, about the credibility and reliability of Mr Kummrow. Detective Brown was cross-examined as to the absence of a statement by a relevant witness and also as to suitability of the proposed bail address, namely the address of the applicant’s mother in Rosebud.
Analysis
The applicant has been on remand for nearly 11 months. His committal has been twice adjourned through no fault of him. His committal will take place nearly 18 months after his arrest. While the effect of the COVID-19 pandemic on the ultimate delay to trial necessitates a degree of speculation, the current best case scenario, based upon the Emergency Protocol COVID-19 Relisting of Melbourne Trials published by the County Court[15] is that the earliest any trial could be listed if the applicant remained in custody is Term 4 2021. In other words, the current expectation is that at best there will be a minimum two and a half year remand period prior to trial. And, it may well be more.
[15]6 May 2020.
This is a significant delay and is due (largely) to the measures taken within the criminal justice system to combat the COVID-19 pandemic.[16] Decisions of this Court have established that delays in trials due to COVID-19 may establish compelling reasons.[17] That is especially so where the delay is likely to result in a remand period greater than the likely sentence.[18]
[16]Re Broes [2020] VSC 128, [36] (Lasry J).
[17]Re JK [2020] VSC 160, [18]-[21] (Hollingworth J); Re Guinane [2020] VSC 208, [31], [44] (Tinney J).
[18]Re Broes, [41]; Re Tong [2020] VSC 141, [34] (Tinney J); Thomas v Kitching, [6], [92].
It is common ground between the parties that a delay of the anticipated magnitude in this case, or even somewhat greater, would not exceed the likely non-parole period imposed upon the applicant in the event of findings of guilt.[19] That said, the delay is nonetheless considerable.
[19]For the sake of completeness I note that on 11 May 2020 Mr Price was sentenced to 218 days imprisonment after entering a plea of guilty in the County Court. There is no information before the Court as to what charge or charges were the subject of the plea, nor any information about Mr Price or his criminal history.
And, the onerous nature of custody conditions consequent upon the attempt to prevent the outbreak of COVID-19 within the prison system is another matter to consider. I accept that the inability to receive physical visits from his mother and partner, as well as the suspension of rehabilitative programs for the foreseeable future, will make time in custody more difficult for the applicant. On the basis of the psychological material presented I am unable to infer any further, unique difficulty for the applicant arising from the current restrictive regime as a result of his depressive condition, let alone be satisfied that continued remand would be ‘catastrophic’ on his mental health.
I do not accept the submission of the applicant that the prosecution case is weak. Questions of the reliability and credibility of complainants are almost universally live in allegations of this kind. And I accept that there is evidence independent of each complainant that tends to support their version of events, including other witnesses, CCTV footage (which I have watched), text messages and phone records, DNA evidence and recorded telephone calls.
It is to be remembered that the effects of the current crisis will not demonstrate a compelling reason (or exceptional circumstances) in all cases; they are only one of the surrounding circumstances that must be considered. As Tinney J has stated:
It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[20]
[20]Re Tong, [33]. See also Re El-Refei (No 2) [2020] VSC 164, [17]-[21](Incerti J) ; Re Sepehrnia [2020] VSC 247. [58] (Tinney J).
But in this case, after considering all of the surrounding circumstances, I am persuaded that a best case minimum delay of two and a half years to a trial date coupled with the currently restrictive nature of custodial arrangements does demonstrate a compelling reason that justifies the grant of bail.
I turn then to consider whether the applicant poses an unacceptable risk of any of the s 4E(1)(a) factors.
I take into account the criminal history of the applicant. The Victoria Police LEAP database records that the applicant has been charged a total of 458 times by police. His adult criminal history dates from 1998 and includes, but is not limited to, convictions for aggravated burglary, armed robbery, intentionally causing injury, false imprisonment and trafficking methylamphetamine. He also has an extensive history of driving offences. Additionally, he has seven prior convictions for failing to answer bail, the most recent of which was proven on 16 October 2018, seven convictions for committing an indictable offence whilst on bail and one prior conviction for contravening a condition of bail. He has served several periods of imprisonment.
That criminal history supports the evidence of both informants that time spent by the applicant in custody has been little more than a series of interruptions to his offending behaviour.
While the applicant’s participation in rehabilitative programs in custody (prior to the COVID-19 suspension) is to be commended and encouraged, the likely traction of learnings from those programs must be seen in the context of the lifestyle adopted by the applicant for the entirety of his adult life. In this respect I note that on 23 June 2017 he was sentenced to a two year community correction order (CCO) which included treatment and rehabilitation conditions with respect to drug and alcohol abuse and dependency as well as offending behaviour. The applicant was found to have breached that CCO on 7 September 2018 when he was convicted of theft of a motor vehicle, handle stolen goods, theft, being a prohibited person in possession of a firearm, possession of methylamphetamine, possession of GHB, dishonestly assisting retention of stolen goods and dishonestly receiving stolen goods.
Given the applicant’s history of recommencing criminal activity upon release from custody, I do not consider that the 11 months he has spent on remand is a sufficient ‘circuit breaker’ to found, with any degree of confidence, an expectation that he will not commit further offences if released. His offending has been sustained, violent and dangerous.
And, similarly, his demonstrated history of failing to answer bail and committing further offences on bail tells against any reasonable expectation that he will surrender into custody in accordance with bail conditions. The applicant has, over many years, disregarded the authority of the police and courts. He is adept at making himself difficult to find.
I also accept the unchallenged evidence of Detectives Woods and Brown that police hold specific fears for the safety and welfare of Mr Kummrow and Ms Payne in the event that the applicant was granted bail. At the core of each of the sets of alleged offending is the escalating intimidation of each complainant by the applicant. And, that towards Ms Payne was directed towards having her withdraw a police statement. Further, I accept the unchallenged evidence that the driving history of the applicant gives reasonable cause for concern as to the safety of the public in general.
Further, the applicant is currently the respondent to personal safety orders and has, in the past, been named as the respondent to intervention orders 20 times. The current orders do not raise any issue under s 5AAAA of the Act.
Considering these surrounding circumstances, I am of the view that the applicant is an unacceptable risk of:
(a) endangering the safety and welfare of any person; and
(b) committing further offences whilst on bail; and
(c) interfering with witnesses or otherwise obstructing the course of justice; and
(d) failing to surrender into custody in accordance with the conditions of bail.
And, in my view, there are no conditions of bail, however strict, that can ameliorate that risk to an acceptable level.
Conclusion
It follows that bail must be refused.
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