Re Rosse
[2019] VSC 352
•28 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0099
| IN THE MATTER of the Bail Act 1977 |
| v |
| IN THE MATTER of an Application for Bail by JOSEPH ROSSE |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2019 |
DATE OF JUDGMENT: | 28 May 2019 |
CASE MAY BE CITED AS: | Re Rosse |
MEDIUM NEUTRAL CITATION: | [2019] VSC 352 |
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CRIMINAL LAW – Application for bail – Young adult applicant – Charges of being a prohibited person possessing a firearm, possessing an unregistered category E handgun, possessing cartridge ammunition without a licence, carrying a loaded firearm in a public place, making a threat to kill, assault with a weapon – Applicant required to show compelling reason – History of drug addiction – Respondent of Family Violence Intervention Order – Extensive criminal history – Time spent in custody – Significant support – Bail granted with conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Fayman Lawyers |
| For the Respondent | Mr S Payne | Victoria Police |
HIS HONOUR:
Introduction
On 16 January 2019, Joseph Rosse (‘the applicant’) was arrested and charged with being a prohibited person possessing a firearm, possessing an unregistered category E handgun, possessing cartridge ammunition without a licence, carrying a loaded firearm in a public place, making a threat to kill, and assault with a weapon (firearm).
The charges relate to an altercation alleged to have occurred on 15 January 2019 between the applicant and three persons who had attended the applicant’s home.
The applicant has been in custody since his arrest. The matter is next listed for a further special mention at the Dandenong Magistrates’ Court on 29 July 2019 and tentatively listed for a contested hearing on 2 September 2019, pending DNA results.
The applicant has no outstanding matters at present. Although he is being investigated in relation to a number of other incidents, he has not been charged with any additional offences.
The applicant appeared at the Dandenong Magistrates’ Court on 19 January 2019 but made no application for bail. On that occasion it was noted that he was ‘withdrawing from drug addiction’. A similar note was made on 13 February 2019 and 5 March 2019 when he again appeared before the same court.
On 19 March 2019, the applicant applied for bail at the Dandenong Magistrates’ Court but was refused. Whilst the applicant had established compelling reasons existed that would justify a grant of bail, the magistrate concluded he posed an unacceptable risk pursuant to s 4E of the Bail Act 1977 (‘the Act’).
By notice dated 24 April 2019, the applicant seeks a grant of bail in this Court.
The alleged offending
On 15 January 2019, a vehicle belonging to Kayla Fiamengo, was stolen from Crib Point. Ms Fiamengo posted on Facebook seeking information relating to the theft and offering a reward for such information. As a result she was informed by an unknown person that her vehicle may be located at the applicant’s address in Hampton Park, in the possession of the applicant’s younger brother.
At approximately 6.00pm that day, Ms Fiamengo attended the applicant’s address with Jonathon Vercoe and Matthew Grigg to make enquiries about the stolen vehicle. When they arrived at the premises, it is alleged Ms Fiamengo and Mr Grigg had a short heated discussion with the applicant’s father, who told them he had no knowledge of the stolen vehicle and was confident his son was not involved.
Ms Fiamengo and Mr Grigg walked back to their vehicle and remained there talking. While the pair were standing at the vehicle, it is alleged that a white Holden sedan, believed to be registered to the applicant, drove into the street at speed and skidded to a stop nearby.
It is the prosecution case that the applicant got out of the vehicle holding a double barrel sawn-off shotgun. He then allegedly ‘broke’ the shotgun and loaded two shells, raised the weapon to Mr Vercoe’s face in its broken state, and said ‘if you want to fuck with my family, I will fuck you up, who do you think you are?’ The applicant’s father then defused the situation, and the applicant returned to his vehicle with the firearm and left.
The following day, police located the applicant at his partner’s address in Cranbourne North, standing near a white Holden Commodore sedan that displayed false registration plates and was in the process of being spray painted silver.
The alleged co-accused, Cruz Klyn, was also present and was arrested pursuant to an outstanding bench warrant. A search of Mr Klyn located methylamphetamine and a set of keys to a Mitsubishi Lancer that was parked on the street in front of the address. A subsequent search of the vehicle located a loaded double barrel sawn-off shotgun in a shopping bag in the backseat passenger foot well. Police believe it to be the firearm involved in the incident on the previous day.
The applicant was arrested and conveyed to Narre Warren Police Station. He provided a no-comment interview and was remanded in custody. The co-accused admitted to ownership of the Mitsubishi Lancer, but denied knowledge of the firearm, stating he had left the vehicle unlocked for ‘a good couple of days’.
The firearm was forensically examined and determined to be capable of being discharged. A DNA sample was taken from the weapon to determine who may have been previously in possession of the firearm.
The applicable legislation
The applicant is charged with the Schedule 2 offence of committing an indictable offence, namely making a threat to kill, in the course of which he is alleged to have used or threatened to use a firearm.[1]
[1]Bail Act 1977 (Vic) sch 2 item 23.
Section 4AA(3) of the Act provides that the ‘compelling reason’ test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence. Pursuant to s 4C(1A) of the Act, the Court must therefore refuse bail unless satisfied a compelling reason exists that justifies the grant of bail.
The applicant bears the burden of satisfying the Court that a compelling reason exists.[2]
[2]Ibid s 4C(2).
Pursuant to s 4C(3) in considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’. Section 3AAA of the Act provides the Court must take into account all the circumstances that are relevant to the matter, including, but not limited to:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused's criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m)whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the Court is satisfied a compelling reason exists that justifies the grant of bail, ss 4C(4) and s 4D(1)(b) of the Act provide the ‘unacceptable risk test’ must be applied.
Pursuant to s 4E(1)(a) of the Act, the Court must refuse bail if satisfied that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In applying the unacceptable risk test, s 4E(3) of the Act provides the Court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so it is not unacceptable.
The applicant
The applicant is 22 years old and has a history of drug addiction. He has a three year old daughter from a previous relationship, and is expecting a child with his current partner in early June 2019. Prior to being on remand, the applicant resided in Hampton Park with his family.
Whilst in custody, the applicant has undertaken a number of general education and vocational courses with Box Hill Institute as well as workshops aimed at developing strategies to adjust and maintain family relationships while in custody.
Risk of family violence
Pursuant to s 5AAAA(1) of the Act, the Court must make inquiries of the prosecutor as to whether there is a Family Violence Intervention Order (FVIO), or any other family violence safety notice or domestic violence orders in force against the applicant. The Court must consider whether there would be a risk that the applicant would commit family violence if released on bail and whether that risk could be mitigated.
The applicant is named as the respondent of a FVIO imposed on 14 April 2015 at the Frankston Magistrates’ Court, which expires on 14 April 2020. The respondent accepts the FVIO does not have any relevant connection to the current application or alleged offending.
Criminal history
The applicant has a criminal history dating back to 2014, which includes convictions for violence, dishonesty, driving and drug offences. Relevantly, his history also discloses convictions or findings of guilt for contravention of a Community Corrections Order in 2015; committing an indictable offence whilst on bail in 2017, 2015, and 2014; failing to answer bail in 2015; and two instances of contravening a conduct condition of bail in 2015. He has served previous terms of imprisonment.
The applicant’s contentions
The applicant contends the following matters are established by evidence and, in combination, demonstrate compelling reason that justifies a grant of bail. It is submitted the applicant is willing to submit to strict conditions of bail.
Weakness of prosecution case
It is submitted that the case against the applicant relies solely on the complainant’s version of events, which is not supported by the statements of other witnesses. It is submitted that in some material aspects, the accounts of other eye-witnesses do not appear to support the account given by the complainant.
Further, the applicant initially contended there is no current forensic evidence linking him to the firearm located in the Mitsubishi Lancer, noting, however, that the results of the DNA analysis were still pending. It is accepted, however, that a preliminary DNA report subsequently provided to the Court at a special mention on 14 May 2019, indicates that the applicant cannot be excluded as a contributor to the DNA profiles found on swabs of the trigger area of the firearm. It was submitted that the DNA results can be described as ‘low readings’. There were no fingerprints on the weapon.
The applicant submits the central issues in dispute are whether the applicant was present during the alleged offending and whether a firearm was produced during the alleged altercation.
Delay
As above, a preliminary DNA report was provided to the Court on 14 May 2019. On that day, the Magistrates’ Court was informed that a DNA statement would be available in approximately three months. The applicant has raised the issue of admissibility of the results and foreshadowed that the suggested low quality of the results raises the possibility that the applicant may engage a DNA expert following service of the full statement. For this reason, the Court adjourned the special mention to 29 July 2019 with a view to having the DNA statement and the applicant’s position regarding DNA evidence clarified by that date. A contested hearing remains listed on 2 September 2019, however, this date may change pending the outcome of the further special mention. It is therefore submitted the applicant is likely to face delay in having this matter finalised.
Likely sentence
The applicant contends that there is a possibility that he will serve more time in custody on remand than would otherwise be imposed if found guilty of the present charges.
Youth and personal circumstances
The applicant is a relatively young adult, being 22 years old. He has a three year old daughter and is expecting the birth of his second child in the coming weeks.
With respect to his drug use, it has been noted in extracts provided by the Dandenong Magistrates’ Court that the applicant’s custody management issues include that he is currently withdrawing from drug addiction. In addition, the applicant has provided drug screen reports dated 19 February 2019, 29 March 2019 and 4 May 2019 which confirm that the applicant has tested negative for relevant substances.
Available accommodation and substance abuse support
The applicant has stable accommodation available to him with a family friend, Joanne Urzua, at her home in Cranbourne East. In addition, Ms Urzua is a qualified mental health and drug and alcohol worker and works as a volunteer community service worker with House of Refuge. In support of the previous bail application, Ms Urzua provided a letter dated 13 March 2019 in which she stated that she has known the applicant for approximately 18 months and was willing to let him stay with her in her family home in order to assist him to ‘turn his life around’ and be a positive role model for his children and partner. Ms Urzua is willing to provide ongoing counselling and support to the applicant if he is granted bail. This was confirmed when she gave evidence before me.
Availability of CISP support
The applicant was previously assessed as suitable for case management by the Court Integrated Services Program (‘CISP’). The most recent CISP assessment report dated 24 May 2019 from the CISP Remand Outreach Program (CROP) stated that support would include referral to comprehensive drug and alcohol assessment, as well as referral for one-on-one counselling to provide strategies for maintaining abstinence, and engagement in a lifestyle assistance program provided through the Salvation Army.
During the hearing, it was confirmed that the applicant was prepared to seek mental health assistance from psychologist Paul Grech, and will be assisted by Ms Urzua to start that engagement. Further, the applicant would attend an assessment in relation to substance abuse issues with an accredited worker. Counsel for the applicant accepted the Court could add a specific condition to a grant of bail, mandating treatment with Mr Grech and requiring that such treatment commence soon.
Availability of employment
If granted bail, full time employment is available to the applicant as an automotive audio and vehicle accessory parts fitter at a mechanic business. The business owner, Shane Lannan, has provided a letter detailing this offer of employment and states he will provide daily transport for the applicant to attend work. The availability of this employment was specifically addressed and confirmed in the course of the hearing before me. Mr Lannan, a qualified mechanic, was present in Court throughout the hearing before me.
Availability of surety
Ms Jacqueline Dow, a friend of the applicant, is prepared to provide a $8,000 surety in the event the applicant is granted bail. Further, it is submitted that the applicant has ties to the jurisdiction that mitigate against his risk of failing to answer bail when required.
Risk
The applicant submits the above matters, in combination with his strong ties to the jurisdiction and lack of criminal history in relation to firearms offences, demonstrate he is not an unacceptable risk and that any risk could be ameliorated by the imposition of strict conditions.
The applicant submits the real tension in the present case is between facilitating meaningful rehabilitation of a young man and protecting the community by ensuring bail is not granted where an offender is an unacceptable risk. This tension, it is argued, can be resolved by strict conditions. The applicant has never previously received a grant of bail with a condition requiring him to engage with treatment. Save for one occasion, previous grants of bail have been made from police stations. Thus it is submitted a grant of bail could have long term benefits, whilst still ensuring short term risks are appropriately managed. Furthermore, it is submitted that an examination of the applicant’s prior criminal history shows he has not previously experienced forms of therapeutic or transitional outcomes ordered by a court. It is submitted that the present application for bail, if successful, provides the applicant with a unique opportunity to begin his rehabilitation before he appears before a court later this year.
The applicant pointed to two instances where Victorian courts have endorsed an approach whereby releasing an individual over a pre-trial period may be used constructively to tackle a person’s drug addiction.[3]
[3]Robinson v The Queen [2015] VSCA 161; Re Gaylor [2019] VSC 46.
The respondent’s contentions
The respondent concedes it is open to the Court to find a compelling reason exists that justifies the grant of bail. I note this concession was made prior to the preliminary DNA report being made available.
The respondent is opposed to a grant of bail on the basis that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, and committing an offence whilst on bail.
The respondent argues the prosecution case is strong, when taken at its highest. Further, it is noted that the informant is in the process of obtaining further statements from witnesses who have expressed an intention to make statements but have yet to do so.
Further, it is argued the delay that will be experienced is not undue in all the circumstances. It is submitted the applicant’s submissions as to a possible sentence being shorter than the period on remand should not carry much weight in this application.
It is also submitted the applicant has an extensive criminal history that includes matters of violence, and that this alleged offending is very serious. The respondent submits that if the applicant is convicted of the offending, a sentence of imprisonment is inevitable.
In support of the contention the applicant is an unacceptable risk, the respondent notes:
(a) the applicant is alleged to have threatened the complainant with a loaded sawn‑off shotgun which was capable of discharge, and that such actions were reckless;
(b) the applicant is prohibited from using or holding a firearm licence as it has been less than 5 years since he was released after serving a term of imprisonment and because he is the respondent in a current FVIO;
(c) the applicant has a violent criminal history, including convictions for assault and robbery, as well as a history of committing indictable offences whilst on bail and failing to comply with conditions of bail; and
(d) the applicant is a drug user who ‘appears to use methyl amphetamine’.
It is submitted that the factors relied upon by the applicant will not mitigate his risk to an acceptable level.
Conclusions
Considering all factors and evidence presented on this application, and the matters required to be taken into account under the Act, I am of the opinion the applicant has demonstrated a compelling reason which justifies a grant of bail, through a combination of factors. These factors have included the circumstances of the alleged offending, the strengths and weaknesses of the prosecution case, the possible delay involved in having the case resolved, the applicant’s personal circumstances including his young age and the imminent birth of his second child, the availability of full-time employment, the guaranteed commitment of Ms Urzua to the applicant’s welfare, the availability of a surety, and the willingness of the applicant to be generally subject to tight conditions on a grant of bail.
It cannot be said that the prosecution case is inherently weak, nor is it to be regarded particularly strong. There appears to me to be at least an arguable case to be put forward by the applicant.
Ms Urzua gave sworn evidence during the hearing of this application. She confirmed under oath that she would use her experience in social work to engage with the applicant, and has invited the applicant to take the unusual step of living at her home with her family. This is a serious offer and is not to be taken lightly. Ms Urzua has undertaken to report breach of any bail conditions to the authorities. She also confirmed she has some considerable experience in the dealing with the types of circumstances presented by the applicant. She appears prepared to take positive steps to ensure that the applicant complies with conditions of a grant of bail.
Furthermore, CISP has assessed the applicant as suitable for comprehensive drug and alcohol assessment. CISP has other opportunities available to the applicant, and I am advised that the psychologist, Mr Grech, is available to attend to the applicant. The evidence before me suggests the applicant has a drug problem which has impacted on him for a considerable part of his life.
A surety is also available to add to conditions that the Court may impose on a grant of bail.
The factors I have identified above are relevant to the assessment of whether a compelling reason justifying a grant of bail has been shown. They are also relevant to the assessment of whether there is an unacceptable risk that the applicant will place others in danger, or commit further offences while on bail.
The applicant enjoys the participation of an unusually large number of individuals and agencies who appear prepared to support him, and to make an effort to encourage his rehabilitation. Genuine engagement with these people and programs can amount to a series of protective pro-social factors that reduce what might otherwise be an unacceptable risk to an acceptable one.
The applicant, through his counsel, has indicated he is prepared to abide by a stringent set of conditions. I note also he is expecting the birth of his second child in the next few weeks and hope that this event may further dissuade him from further offending and to observe a grant of bail until the charges are resolved.
In all the circumstances, I am satisfied that appropriate conditions can sufficiently reduce the risk that exists to an acceptable level. Accordingly, I will grant bail with onerous conditions. Further, I will order the applicant appear before me in two weeks from this date in order to update the Court with his progress on bail. I shall order a further CISP report be prepared for that appearance. On that occasion, I will decide what level of judicial monitoring will be appropriate in the period leading to the applicant’s charges being finally heard and determined in the Magistrates’ Court.
The applicant will be admitted to bail on his own undertaking with one surety in the amount of $8000, and on a series of special conditions, including that:
(a) he reside at Ms Urzua’s address as provided to the Court, and not change that address without leave of the Court;
(b) he remain at Ms Urzua’s address between the hours of 11.00pm and 6.00am each day for the duration of bail;
(c) he report Monday, Wednesday and Friday to the officer in charge of the Cranbourne Police Station, or his or her nominee, between the hours of 6.00am and 11.00pm;
(d) he abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act;
(e) he submit to drug and alcohol testing if required to do so by any member of Victoria Police;
(f) he report to Court Integrated Services Program (CISP) at Dandenong within two working days of this order coming into force;
(g) he undertake a urine drug screen once every two weeks and provide the results to the informant within 24 hours of them becoming available;
(h) he report to Dr Paul Grech within two working days of this order coming into force, and thereafter attend all appointments as directed by Dr Grech; and
(i) he reappear before this Court for judicial monitoring to review his compliance with this order at 9.30am on 11 June 2019, and any further dates this Court appoints during the course of this order.
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