Re Richardson

[2013] VSC 367

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0104 of 2013

IN THE MATTER of the Bail Act 1977

v

IN THE MATTER of an Application for Bail by JAMES MICHAEL RICHARDSON

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2013
DATE OF RULING:	18 July 2013
CASE MAY BE CITED AS:	Re Richardson
MEDIUM NEUTRAL CITATION:	[2013] VSC 367

---

CRIMINAL LAW – Application for bail – Possession of unregistered firearms – Possession of drug of dependence – Trafficking drug of dependence – Show Cause – Indictable offence while on bail for Indictable Offence – Delay – Bail granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M. L. Hartnett
For the Accused	Mr D. Brown

HIS HONOUR:

1. On 20 March 2013, the applicant was charged with 11 offences involving his use of a category E long arm firearm, a rifle.  In short, it is alleged that the applicant, whilst intoxicated, fired into what he may have thought was vacant bushland but which, in fact, was a designated camping area.

1. It is further alleged that the category E firearm was not registered, nor was the applicant licensed to own such a firearm.  The firearm is said to be unnumbered.  Ten of the charges relate to this incident and the circumstances that surround it; six of the charges are indictable but capable of summary trial.  The other charge relates to possession of a small quantity of crystal methylamphetamine. 

1. The applicant was bailed on his own undertaking from the Narre Warren police station and, as I understand it, the matter is listed for contest mention at the Dandenong Magistrates’ Court on 27 August 2013.  This bail remains in place.

1. On 20 May 2013, police executed a search warrant on the applicant's Endeavour Hills house.  Police seized the following items:

(a)       A sawn-off, side by side, ‘Mugila Eibar’ shotgun;

(b)      A .22 calibre pump action rifle;

(c)       An army model M-1911 A1-67 auto-loading, .45 calibre pistol;

(d)      2 x .22 calibre pen pistols;

(e)       An imitation silver coloured semi-automatic pistol, body only;

(f)       An imitation black and silver ‘Gap’ 9mm semi automatic pistol;

(g)      An imitation black and silver coloured ‘Denix’ revolver;

(h)      The stocks of 2 long-arms and the barrels;

(i)       A large quantity of ammunition;

(j)        A home made ‘Taser’;

(k)      A knuckle-duster;

(l)       35 Ecstasy tablets;

(m)     Amphetamine in 9 separate ‘deal’ bags having a total weight of 25 grams;and

(n)      A quantity of empty deal bags, electronic scales and documents pertaining to drug trafficking.

1. The prosecution allege that the accused was not authorized under the Firearms Act to possess or carry firearms as at 20 May 2013.  All the firearms found were unregistered, bar the 22 pump‑action rifle which had been stolen between two and three weeks earlier from a Wonthaggi rural property. 

1. Approximately 1454 grams of iodine was seized.  Iodine is listed as a precursor chemical under schedule one of the Drugs, Poisons and Controlled Substances Regulations 2007 (Vic). The trafficable quantity for amphetamines is three grams as set out in Part 3, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The amount of amphetamines that was seized was 25 grams.

1. As a consequence, the applicant was charged with 23 offences, including seven indictable offences, all of which are capable of being heard summarily.  These offences are:

(a)       Possess a category A or B longarm that was not registered x 2;

(b)      Possess a general category handgun that was not registered x 6;

(c)       Traffic drug of dependence x 4;

(d)      Possess drug of dependence x 4;

(e)       Deal with property suspected of being proceeds of crime;

(f)       Possess prohibited weapon x 2;

(g)      Possess cartridge ammunition without a licence;

(h)      Possess substance, equipment or material for trafficking;

(i)       Possess prescribed precursor chemical; and

(j)        Shorten barrel of a longarm.

I shall refer to these offences as the second set of charges.

1. The applicant was refused bail on the second set of charges, initially when unrepresented, and subsequently when represented.  There are no reasons for refusal in the notice of order that day at the Dandenong Magistrates’ Court.  The second set of charges are listed for contest mention at the Dandenong Magistrates’ Court, also on 27 August 2013. 

1. On 26 June 2013, the applicant was charged with burglary, theft, dealing with property being the proceeds of crime and receiving stolen goods.  These charges stemmed from the discovery that the earlier mentioned pump‑action .22 rifle had been stolen from the rural Wonthaggi property relatively shortly before being found in the applicant's possession.  They are all indictable but capable of being heard summarily.  I shall refer to these as the third set of charges.  These charges are also listed for contest mention at the Dandenong Magistrates' Court on 27 August 2013. 

1. The applicant carries a burden of demonstrating why his detention in custody is not justified. This burden arises because (a), he was at large awaiting trial for indictable offences when the indictable offences within the second and third set of charges are alleged to have been committed (s 4(4)(c)); and (b), he is charged with offences of trafficking a drug of dependence contrary to s 71AC of the Drugs, Poisons and ControlledSubstances Act 1981 (s 4(4)(ca) Bail Act 1977). 

1. I should observe this application for bail proceeds in part from the magistrate’s refusal to grant bail on the second set of charges and, as such, is an appeal from that refusal.  The third set of charges has not been considered by a magistrate, as I understand it, and this part of the application is made to this court in its inherent jurisdiction.  The applicant is required to show cause in the manner I have explained in relation to both the second and third sets of charges. 

1. In substance, the applicant relies on the following combination of facts and circumstances to discharge the burden incumbent upon him.

Delay

1. The applicant has been in custody now for approximately eight weeks.  He will have been in custody for over three months by the date of the contest mention.  At least some of the charges will be defended if a settlement cannot be reached.  Currently ballistics tests, fingerprint analysis and drug analysis are either being carried out or are to be carried out.  It is anticipated that these tests will be complete by approximately mid to late November 2013.  From a practical perspective, prima facie, there is a prospect of negotiations resolving the issues between the applicant and the prosecution. 

1. Mr Shears, in his second affidavit filed in support of this application, observed that these negotiations could not really be pursued until the results of this testing was known.  I accept this and Mr Brown, who appears for the prosecution in this application, accepts this also.

1. I consider that there is little prospect of the matters being heard this year, even as a negotiated plea.  There is some prospect of it but I don't think it is a particularly great one.  Should there be a contest, it is common ground, I think, that this hearing will not occur until well into 2014, perhaps March or thereabouts.

1. It follows that the applicant, at the earliest, will have been in custody for six or seven months before this matter is dealt with and it may be that he may otherwise have remained in custody until March, which is ten months after his arrest and charge on the offences on which he seeks bail.

Risk if bail granted

1. The applicant has no history on bail and effectively no prior convictions.  He is now 28 years old. 

1. The applicant would be released to live in a stable household with also the opportunity of employment.  The applicant's mother, Ineke Richardson, gave evidence before me this morning and has indicated a preparedness to have the applicant live in the family home with the applicant's younger siblings.  She indicated to me that the applicant would be required to obey house rules and, should the applicant relapse into drug taking, she will indicate that fact to the police post haste.  Often in these courts we hear similar undertakings made and sometimes judges hearing these applications take them with a grain of salt.  After all, it is asking a lot of a parent to re-involve the police in their offspring's already complicated life.  Notwithstanding that, I was impressed by the evidence of Mrs Richardson and I take her at her word, that if the applicant does give the slightest sign of relapsing into drug use, she will contact the police.  It follows from what I have said that the applicant has strong, if qualified, family support. 

1. The applicant was a user and certainly addicted to methylamphetamine or crystal ice prior to his incarceration.  The applicant has now spent approximately 60 days drug free whilst in custody.  He has been favourably assessed for the CREDIT/Bail Support Program. 

1. Mr Cummins, psychologist, has seen the applicant in a forensic capacity on a number of occasions.  He indicated in his report and in evidence before me that it was his view that the applicant had an amphetamine dependence disorder which substantially impacted upon his daily life.  Mr Cummins indicated to me that he believed the applicant was of above average intelligence and had an insight into his drug addiction and the ways in which that addiction could be dealt with. 

1. It is finally submitted on behalf of the applicant, at least in the affidavits, that he is not a flight risk or a risk of endangering the public or witnesses in the case. 

Opposition to the application

1. In opposition to this application, Mr Brown, who appears for the prosecution, pointed to the show cause burden that I have explained earlier in these reasons.  Whilst in the affidavit filed in opposition to bail it was contended that the applicant was an unacceptable risk of committing further offences whilst on bail and of endangering the safety and welfare of the public, this was not pressed with vigour by Mr Brown in opposing this application.

1. I should say that I approach this matter in the manner explained by Maxwell P in the matter of Re Fred Joseph Asmar.[1]  I undertake a one‑step process, that step being to determine whether the applicant has shown the necessary cause.  The question as to whether the applicant is an unacceptable risk of some sort is important to the determination of this question but it is not a separate or discrete matter.  Rather, it is subsumed within this single step.  If the applicant has shown cause, the prosecution will necessarily have failed in satisfying me that the applicant is an unacceptable risk if granted bail.  It follows that if I am satisfied the applicant has shown cause, the prosecution will have failed to satisfy me that the applicant is an unacceptable risk of ‑

(a)committing an offence whilst on bail or

(b)endangering the safety or welfare of members of the public.

[1][2005] VSC 487

1. The question of risk is always a vexed one when coming to consider applications such as these.  There is a risk that attaches to every grant of bail.  The question is whether that risk is unacceptable within the meaning of the Bail Act.  I take the view that the risk in this case, whilst it exists, can be conditioned to be acceptable.  I am troubled by the aspect of delay.  In the absence of the results of the ballistic and forensic tests, I am unable to make any proper assessment of the seriousness of the applicant's offending.  There is, I think, some prospect that should the matters not be dealt with until 2014 that the applicant would have spent more time in custody than ultimately his offending calls for in the event that he is convicted of some or all of the offences on which he seeks bail.  That is a tentative view only because of the as yet unknown results of the tests that I have referred to.

1. As I have said, I am troubled by the aspects of risk that the prosecution rely upon, but I have reached the conclusion that with conditions that I propose to discuss with counsel shortly, that risk can be mitigated to an acceptable extent.  Mr Cummins has indicated a preparedness to supervise urine tests, perhaps twice weekly to commence with, and thereafter weekly, which would give some comfort that the applicant remains drug free.  The applicant remaining drug free is, of course, the key to any assessment of risk.  Mr Cummins has also indicated that he is prepared to treat the applicant therapeutically for the earlier mentioned addiction.  I will incorporate into conditions both of those aspects of Mr Cummins' treatment and supervision of the applicant.

1. As I have observed, the applicant has been assessed as suitable for a CREDIT bail program.  I propose to include in the conditions that the applicant attend the Dandenong Magistrates’ Court within 48 hours and report to the CREDIT program and obey their lawful directions.  I also propose to make a condition that the applicant live with his mother, Ineke Richardson, at [ADDRESS] in Victoria. 

1. I grant the applicant bail on his own undertaking and upon the following conditions:

1.That the said James Michael Richardson reside with his mother at [ADDRESS] in the State of Victoria;

2.The said James Michael Richardson report each Monday, Wednesday and Friday to Endeavour Hills police station between the hours of 7.00am and 7.00pm;

3.The said James Michael Richardson with 24 hours of release surrender any passport or other valid travel document and not apply for any further travel document;

4.The said James Michael Richardson comply with the CREDIT/Bail Support Program as directed.

5.The said James Michael Richardson undergo psychological treatment as directed by Mr Jeffrey Cummins of 550 Lonsdale St Melbourne.

6. The said James Michael Richardson undergo urine testing as directed by Mr Cummins.