Re Sean Jason Sonnet
[2011] VSC 114
•30 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1443 of 2005
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| and | |
| IN THE MATTER of an Application for bail by SEAN JASON SONNET | |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2011 | |
DATE OF JUDGMENT: | 30 March 2011 | |
CASE MAY BE CITED AS: | Re Sean Jason Sonnet | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 114 | |
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CRIMINAL LAW – Application for bail – Conspiracy to Murder – Re-trial after successful appeal - Show cause – Four and half years in custody as a remand prisoner.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G. Meredith | Marich Legal Pty Ltd |
| For the Defendant | Mr B. Kissane | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Sean Jason Sonnet (“the applicant”). The applicant was charged with conspiracy to murder Mario Condello, pursuant to s 321(1) of the Crimes Act1958. Section 4(4)(c) of the Bail Act 1977 requires in this situation that the applicant show cause as to why his detention in custody is not justified, in order for me to grant him bail.
The applicant was arrested and charged on 9 June 2004. The Crown alleges that he and his accomplice Gregg Hilderbrandt were, at that time, on the verge of putting their agreement with Carl Williams and Michael Thorneycroft to murder Mario Condello into effect, although if anyone was shot on that day it would not have been Condello because he was not in the vicinity of East Brighton as they allegedly believed he was. The evidence indicates that the police were listening to their conversations and watching their movements and, as a result, Sonnet and Hildebrandt were arrested by the Victorian Police Special Operations Group shortly before anyone risked being mistakenly shot.
The applicant was originally charged with Conspiracy to Murder Mario Condello, Theft, Prohibited Possession of a Firearm and Possession of Ammunition and was remanded in custody. A bail application was made to this Court in June 2005 before Bongiorno J but his Honour refused the application. I have not had the benefit of reading those reasons. Committal proceedings were also held in 2005. The applicant’s trial was held in this Court before King J between 13 August 2007 and 26 September 2007. The applicant gave evidence on his trial admitting that it was his voice that could be heard on the various electronic devices but suggesting that his participation was a sham, and that he lacked any intention to actually commit the murder that he was alleged to have agreed to commit. He was found guilty by the jury.
King J sentenced the applicant on 29 May 2008 to 20 years imprisonment on the count of conspiracy to murder, two years on the count of theft of a vehicle, two years and six months on the firearms charges, and 20 penalty units on the possession of firearm cartridges. All sentences were to be served concurrently with a total effective sentence of 20 years with a minimum term before eligibility to apply for parole of 16 years.
The applicant then applied to the Court of Appeal for leave to appeal against his conviction and sentence. His application was heard by the Court of Appeal on 21 September 2010 and judgment of the Court was delivered on 1 December 2010. Their Honours allowed the appeal and ordered a re-trial. That order was made on the basis that the trial judge had permitted the prosecution to put the depositions of the accomplice witness, Michael Thorneycroft, before the jury. Thorneycroft had died of a drug overdose before the trial. In particular, he had made a record of interview with police which was not disclosed to the applicant or his counsel until shortly before the commencement of the trial before King J in 2007. The Court of Appeal concluded that the Thorneycroft depositions should not have been admitted and, as a result, the applicant had lost a “realistic chance of acquittal”.[1]
[1]Sonnet v The Queen [2010] VSCA 315 per Nettle & Harper JJA and T. Forrest AJA at 42.
On 17 March 2011 the Crown sought to persuade me to alter the effect of the judgment of the Court of Appeal. Mr Kissane submitted that my mandate to do so flowed from the fact that the re-trial, which I am to preside over, will be conducted in accordance with the Evidence Act 2008 rather than the Evidence Act 1958. The result, he argued, was that the rules governing the admission of evidence such as the Thorneycroft depositions have changed and that I would therefore be entitled to rule as King J had done at the trial in 2007, to allow the prosecution to tender the Thorneycroft depositions at the applicant’s re-trial. On 22 March 2011, I published a ruling rejecting that application.[2] The consequence of that has been that the prosecution case has had to change because, as I understand it, without the Thorneycroft depositions there is no evidence that can be placed before the jury establishing who the target of the alleged conspiracy actually was. As a result, on 23 March 2011 the prosecutor sought to file a new indictment alleging that the applicant conspired with Michael Thorneycroft, Carl Anthony Williams and Gregg Hilderbrandt to murder a person unknown.[3]
[2]R v Sonnet [2011] VSC 97.
[3]The sole charge on Indictment No. C0403986.3, conspiracy to murder pursuant to section 321I of the Crimes Act 1958.
I am informed by Mr Meredith of counsel who appeared for the applicant in this matter that although he will not be trial counsel for the applicant’s re-trial, he understands that two significant issues will arise to be determined before the trial commences. They are, first, whether or not the prosecution should be permitted to file the indictment that they have. The indictment has been filed subject to hearing argument about whether that filing over should be allowed. Second, there is an issue as to the admissibility of the evidence the applicant gave on his first trial. I have heard no argument about either matter and express no view about the outcome of those issues.
The applicant’s re-trial is presently expected to commence in October of this year.
Application for bail - submissions
In support of the application for bail, the applicant relies on the following matters which are outlined in the affidavit of the solicitor for the applicant, Emma Turnbull:
· The very substantial time that has passed since the initial arrest of the applicant in June 2004, most of which has not been spent serving any sentence;
· The harsh conditions in which that time in custody has been spent, in maximum security, a substantial period of which has been in solitary confinement;
· The applicant has the support of his family and it is proposed that if he were released he would reside with his mother […redacted…] although his mother did not give evidence on the application;
· Although his prior criminal history is substantial his history of compliance with bail conditions is good; and
· With the death of the alleged target of the conspiracy, Mario Condello, and the deaths of Carl Williams and Michael Thorneycroft, it is argued that there are no witnesses, other than police, who would be likely targets for any interference from the applicant. That does not seem to be in contention.
In opposition to bail, the following matters are relied upon, based on the affidavit of the solicitor for the respondent, Katrina Richter, and the evidence of Detective Acting Sergeant Tilley:
· There is an unacceptable risk that the applicant would commit offences, including offences involving firearms and violent offences, whilst on bail and would fail to answer his bail;
· In 2005, the applicant threatened an accomplice who made a statement incriminating the applicant in a charge of trafficking heroin;
· In 2008, the applicant was involved in an assault on a prison officer at Barwon Prison though no charges were laid against him;
· There have been several incidents in prison which indicate that management of the applicant has been difficult and has involved numerous confrontations with prison officers and other prisoners;
· The applicant has a violent and extensive criminal history;
· Notwithstanding my exclusion of the Thorneycroft evidence from the applicant’s re-trial and the consequent change in the Crown case, the Crown case remains strong and is clearly a case of an agreement to murder, supported by evidence of preparations to the point of the applicant being found armed with a loaded and cocked firearm upon his arrest; and
· The applicant’s history demonstrates that he has little regard for the processes of the Court or for any conditions that might be imposed on him, should I see fit to grant his application for bail.
Personal circumstances
The applicant is now aged 41 years. When last at liberty he was 35. He is said to have some ability and experience as a carpenter, though I understand that he has not completed any formal training. In 1995 he was diagnosed with Hepatitis C but remains untreated due to the high security nature of his imprisonment. The applicant’s Prisoner Health Summary seems to indicate that by August 2009 he was wanting to obtain psychological assistance for impulsivity, anger and interpersonal issues but had not been able to do so. Earlier in 2007 he was said to be improving in his mood dysregulation and anger issues with self regulation. It appears that only a short time ago on 9 March 2011, the applicant asked to be moved to a harsher and more isolated environment in Barwon prison which may have been so that he could avoid conflict and which may also demonstrate an improved level of insight.
There is no question but that the applicant has a very substantial history of criminal activity which appears to date back to 1984. Those prior convictions concern offences of serious violence including armed robbery, intentionally causing injury, firearms offences, assaults, thefts and drug offences. The most recent offences for violence occurred in 2008. He has one conviction for a bail offence which was a failure to answer bail at the Oakleigh Magistrates Court in January 1989. Otherwise, I must assume that where bail has been granted he has complied with the conditions.
As I indicated to counsel during the application, I am an adherent to the reasoning of Maxwell P in Asmar.[4] His Honour held that in an application of the kind that I am now concerned with, once an applicant for bail shows cause that his or her detention is not justified, that is the end of the enquiry. There is no second step with the onus on the respondent to establish that he is an unacceptable risk. Where s 4(4) of the Bail Act 1977 applies, the applicant for bail bears the onus throughout of showing that his or her detention in custody is not justified. Whilst the question of whether the process is a one or two stage process has not yet been the subject of consideration by the Court of Appeal, I respectfully agree with his Honour’s approach.
[4]Asmar Bail Application [2005] VSC 487 (29 November 2005) per Maxwell P, sitting as a single judge in the trial division.
Pursuant to s 4(2)(d)(i) of the Bail Act 1977 I must consider whether there is an unacceptable risk that the applicant would fail to surrender himself into custody to answer his bail, commit an offence whilst on bail, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice.
The applicant has been in custody since June 2004. His history does not identify a tendency not to comply with bail condition or failures to answer his bail. There is some risk that he will commit an offence whilst on bail if he were released and perhaps that he would endanger the safety of members of the public. However, such a risk can, I believe, be made acceptable by the imposition of conditions and if he fails to comply with them his bail will almost certainly be revoked. The potential witnesses of most significance – Carl Williams and Michael Thorneycroft – are dead. The essence of the case against the applicant appears to be based on listening device evidence, telephone intercepts and other electronic evidence. I suspect the prospect of an interference with witnesses is, in all reality, minimal.
In making this assessment I must also consider a number of other factors. They include the nature and seriousness of the offence, the character and antecedents of the applicant, the history of previous grants of bail and the strength of the evidence against the accused.[5]
[5]Section 4(3) of the Bail Act 1977.
Analysis
As I have said, under the Bail Act, the applicant is required to show cause why his detention in custody is not justified. He is not charged with murder and is not required to establish exceptional circumstances.
No clear explanation has been put me for the delay, particularly the three years and three months between the applicant being found guilty by a jury in September 2007, and the Court of Appeal overturning that verdict in December 2010. However, the unfortunate chronology in this case demonstrates that by the time the applicant was sentenced in May 2008, apart from the charge of conspiracy for which he is now to stand trial again, he had already served the other total effective sentences of two years and six months by the end of 2006 and that from then until now his time in custody must be properly regarded as remand detention. As I earlier noted, it is intended that this re-trial will occur in October 2011 and if that happens, his time in custody other than serving sentences will be approximately four years and 10 months.
In the relatively short time I have been a member of this Court, I have presided over a number of bail applications where delay was relied on in order to establish exceptional circumstances, and I have read other cases where that issue was raised. Whilst usually the delay is prospective, this nonetheless remains a case where the process has failed. This is not a case where the requirement to demonstrate exceptional circumstances applies. He is required to show cause as to why his further detention in custody is not justified. If the applicant were required to establish exceptional circumstances, I would unhesitatingly conclude that he had done so on the basis of this most regrettable chronology.
A period of almost five years in custody other than for the purpose of serving a sentence means that for that period this man has been disconnected with the community, his family, and any resource that might be usefully applied to dealing with the medical and psychological conditions from which he suffers. In addition, for the entire period of his custody he has been detained at Barwon high security prison, the majority of which time has been spent in the Acacia Unit.
As I have earlier said, the applicant has been in custody for a very significant period of time. That time has been spent in very onerous conditions, perhaps because of his own behaviour and, for at least part of that time, on his own request. I am not attracted by the suggestion that, under the pressure of being in custody in Barwon Prison, his conduct necessarily dictates how he will behave if released.
In balancing the factors that I am required to consider I am simply not able to countenance any further extension of the delay which afflicted this case and which has resulted in the applicant being in custody for a period of four and a half years, on remand. Whilst I consider that there are some risks in the release of the applicant on bail, on the basis of the material before me I consider those risks can be made to be acceptable.
As Maxwell P said in Asmar:[6]
It was not disputed that, if bail were refused, Asmar would be in custody awaiting trial for something in the range of 14-16 months. That is, on any view, a very substantial period of pre-trial detention. One would surely require compelling evidence before deciding to deny a person his freedom for such a period purely on the basis of what he might do if released on bail.
[6]Asmar [2005] VSC 487 (29 November 2005) at [27].
When considering that this applicant has been in custody for almost seven years, that four and a half years of that time has not been because he was serving a sentence and that there still remains at least six months more of pre-trial detention before his trial will start if he were retained in custody, the evidence on which a refusal of bail would be based would have to be overwhelming. It is not. On behalf of the Crown, Mr Kissane argues that even in its re–cast form, the Crown case remains a strong case. That may be so but the changes mean, as I understand it, that there may be no basis on which the victim of the alleged conspiracy may be identified and the motivation for the applicant being involved in the agreement and any benefit he was to receive for it may not be able to be established. That said, I do not proceed on the basis at this stage that the Crown case is weak.
To the extent that the Crown relies on the history of the accused, the assertion is that he is a difficult prisoner to manage and was said to have been difficult to manage during the course of his trial. As I have already indicated, I am not persuaded that those matters would be sufficient to refuse bail. I also note that the threats that the Crown has submitted were made against the applicant to his mother, or any threats that may have been made in relation to the applicant, are not relevant to my decision as to whether to grant bail under the Bail Act. In my opinion, given the somewhat non-specific nature of the material on which the Crown relies and given the history of this matter, I am persuaded that the applicant has shown cause that his continued detention in custody is not justified.
I therefore propose to release the applicant on bail on the following conditions:
That Sean Jason Sonnet be admitted to bail on his own undertaking conditioned in the proper form for his appearance as required by law at his trial at the Supreme Court of Victoria, as and when required and on such day as he shall be notified, with one surety of $20,000 and upon the following special conditions:
(1)That he reside at the same address at […redacted…] in the State of Victoria until further order of a Court, and not leave or be absent from those premises each day between the hours of 7:00 pm and 7:00 am during which hours he remain inside the premises at that address;
(2)That any proposed change of the applicant’s residence be notified to the informant and not occur until it has been approved by this Court;
(3)That the applicant report to the Officer in Charge of the […redacted…] Police Station each day, between the hours of 8:00 am and 5:00 pm;
(4)That the applicant not contact directly or indirectly any witness for the prosecution except for the informant or his nominee;
(5)That the applicant not apply for any passport during the period of bail;
(6)That until further order the applicant not attend any points of interstate or international departure;
(7)That until further order the applicant not leave the State of Victoria without the prior approval of this Court;
(8)That the applicant not be in possession of or acquire by any means any firearm, knife, machete or other weapon within the meaning of the Control of Weapons Act1990;
(9)That the applicant not be in possession of or acquire, sell or dispose of in any way, any substances within the meaning of a drug prohibited by the operation of the Drugs Poisons and Controlled Substances Act 1981;
(10)That under the supervision of the informant on 48 hours written notice, and by reference to this Court if necessary, conditions 1 and 3 above may be varied or waived to permit the applicant to obtain necessary medical, psychological or psychiatric treatment.
(11)Liberty to apply to this Court will be reserved to both parties.
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