Re Self
[2005] VSC 108
•22 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1404 of 2005
| IN THE MATTER of the Bail Act 1977 |
| And |
| IN THE MATTER of an application for Bail by LUKE AARON SELF |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 22 March 2005 | |
DATE OF RULING: | 22 March 2005 | |
CASE MAY BE CITED AS: | Re Self | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 108 | |
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Criminal law – application for bail – show cause situation - whether unacceptable risk of interference with witnesses – whether unacceptable risk of further offending – applicant subjected to attack whilst on remand - application granted subject to bail conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Randazzo S.C. | Victoria Legal Aid |
| For the Crown | Mr R Scheid | Solicitor to the Office of Public Prosecutions |
HER HONOUR:
The applicant, Luke Aaron Self, was arrested on 21 December 2004. He has been charged in respect of assault with intent to rape, unlawful assault, wilfully damaging property, possess controlled weapon, threat to kill and indecent assault.
Two previous bail applications made to magistrates on 21 December 2004 and 27 January 2005 respectively have been refused. On both occasions the magistrates were satisfied that cause was shown, but were of the opinion that Mr Self posed an unacceptable risk of re-offending or interfering with witnesses.
The present application was filed on 1 March 2005. It first came on before me on 10 March. On that date it was adjourned part-heard to enable the applicant to put further material before the court.
The application is opposed by the Crown on the grounds that there is an unacceptable risk of interference with witnesses and an unacceptable risk of further offending whilst on bail.
Mr Self is currently on remand at Port Phillip Prison. At the committal mention in the Magistrates' Court on 17 March 2005 his committal hearing date was set for 23 May 2005.
It is not disputed that this is a show cause situation and that the onus is on Mr Self to show that despite the nature of the charge, bail should be granted. The onus is obviously on the Crown to establish that Mr Self presents an unacceptable risk of re-offending or interfering with witnesses. I turn to the facts of the current application.
Mr Self is currently 24 years old. He has been employed by the Australasian Courier Group since March 2004. His employer has some awareness of his current situation and has agreed to keep his job open, currently until 31 March 2005. The employer has indicated in a letter dated 21 March 2005 that the job will be kept open until that date, but the position will be re-assessed after that.
Mr Self is also fortunate to have strong family support. His parents and his family hold responsible positions in the community, have visited him regularly in prison, and have indicated their support and their intention to have regular and ongoing contact with him. The current situation is that in relation to surety his parents have offered a charge over their home as security for the agreed surety of $50,000.
Mr Self has also had a regular residential address since 1 October last year. I have seen the 12 month lease on that property in Kensington. I note that his parents have been paying the rent on his behalf whilst he has been in custody, to ensure that the premises are available for him to return to.
A psychiatric report dated 1 March 2005 was filed on behalf of Mr Self. In that report, the psychologist referred to visiting him on 2 and 3 January 2005 - that is before the second bail application - and to conversations the psychologist has had with family and friends. He describes Mr Self as open, articulate and capable of examining propositions, with no evidence of psychological illness or impairment.
He refers to a number of traumatic situations over the past eight years, including the sudden death of Mr Self's brother, his being assaulted in a road rage incident, and being threatened with knives on two occasions. These events have, in the psychologist's opinion, led to depression and anxiety and he has been traumatised by the events. Some of these events and the circumstances surrounding them have been confirmed by evidence given in court by Mr Self's father.
The psychologist also says that Mr Self's equanimity has deteriorated considerably and that, in his opinion, Mr Self is not at risk of re-offending, failing to attend or contacting witnesses. Unfortunately, the psychologist does not give reasons for expressing those particular conclusions.
For more than two months Mr Self has been placed in the sex offenders unit at Port Phillip Prison. He is one of only a handful of young men in that unit. Whilst I appreciate that prison authorities have often difficult decisions to make about the placement of prisoners, given his age, the nature and circumstances of the current charges and his previous history, Mr Self's placement in the sex offenders unit with older, seasoned sex offenders is a less than ideal situation.
I accept Mr Self’s evidence that whilst in the unit he has been groped, licked and the subject of other inappropriate advances by older prisoners, and that he has not formed any friendships and alliances. Indeed the conditions of his confinement may be thought to be harsh in the circumstances.
I also accept Mr Self's evidence that about one month ago, since his last bail application, he was the subject of a violent attack by two other prisoners in his cell. He told the court that the two prisoners had threatened him previously, and that on the occasion in question they were waiting for him in his cell. They punched and kicked him repeatedly in turn while the other one kept watch. I accept that he did nothing to report the attack to medical or prison authorities out of the fear, firstly, that they would do nothing, and secondly, that his attackers had threatened to 'stiff' him if he 'lagged on them'.
One of the factors relevant to a bail application is the strength of the prosecution case. On its face, the Crown case is not a weak one. Apparently Mr Self intends to plead guilty to some of the charges in relation to the police, but to contest other charges relating to Ms Lee. As I said earlier, the committal hearing itself will be in some two months' time and the magistrate will be in a better position to assess the strength of the evidence on that occasion.
The nature and number of the charges are such that, if he is convicted of some of the more serious charges, there is a reasonable likelihood he may be sentenced to a term of imprisonment. The cases say that that alone provides some incentive not to appear. However, in his favour, Mr Self has no history of failing to attend court hearings, and the Crown has not suggested there is any risk in this regard.
In relation to the circumstances of his former partner, Jessica Lee, I note that Ms Lee has obtained an intervention order dated 21 December 2004, which prevents Mr Self from, amongst other things, contacting or approaching her. I note that Mr Self has said via his lawyers that he intends to comply with the conditions of that intervention order. Further, he intends to seek an intervention order against her. However, the current intervention order is obviously only a piece of paper, and I must assess for myself whether there is an unacceptable risk that Mr Self will interfere with Ms Lee, notwithstanding that order.
Whilst some of the current charges may be explained, although not excused, in part by the fact of the recent relationship break-down with Ms Lee, this is not Mr Self's first brush with the law. He has been convicted on three previous occasions, and sentenced without conviction on two other occasions, in the past five years. Three of these have been for violence, including assaulting or resisting police. Alcohol and peer pressures seem to have played a role in at least some of these incidents. I also note he has not previously been sentenced to a term of imprisonment; indeed he has never been in custody before.
I have considered the facts surrounding each of his previous convictions. In doing so, I can only have regard to the matters that have been placed before the court in the form of the police summary of charges. I do not propose to go into those in any detail, save to note that they indicate that Mr Self has clearly in the past demonstrated problems with anger management, setting appropriate boundaries, carrying grudges and acting out of resentment.
It is clear that he has not taken serious steps to resolve his anger management issues after the previous offences, notwithstanding that on one occasion his sentence specifically required him to undertake counselling in relation to alcohol and violence issues.
I also note that his own psychologist describes the relationship between Mr Self and his former partner as volatile and difficult and says that Luke is vulnerable in certain situations. He tends to ruminate excessively. However, in Mr Self's favour, I note that he has no history of violence towards women and there is no allegation of assault on Ms Lee other than the disputed incident the subject of the current charges.
The evidence, including his record of interview, also demonstrates serious and ongoing antagonism towards the police.
All that said, I have no doubt, based in part on the evidence of his father, and on my own observation of Luke Self in the witness box and the dock, that spending the past three months in custody has been a very difficult and sobering experience for Mr Self, which has caused him to reflect on where his life could be heading if he does not start taking some responsibility for managing his problems with alcohol, with controlling his anger and resolving his antagonism toward the police. I also accept that he wishes to have nothing further to do with Jessica Lee. I have no doubt that his family fully intend to support him in his efforts to address these problems.
In all the circumstances I am satisfied that the applicant has shown cause. I believe that any risks of re-offending or interfering with witnesses are not unacceptable and can be managed by the imposition of appropriate bail conditions. I also have no doubt that Mr Self fully understands that if he breaches any of the terms and conditions of bail, in particular if he re-offends or attempts to interfere with witnesses, he is likely to find himself back in custody.
The court orders that the said Luke Aaron Self be admitted to bail on his own undertaking with one surety in the sum of $50,000, conditioned in the proper form for his appearance for a committal at the Melbourne Magistrates’ Court on 23 May 2005, or as directed by law and upon the following special conditions:
(1)He reside at his specified residential address in the State of Victoria.
(2)That he give the informant 48 hours’ notice of any proposed change of address.
(3)That he be present at the specified residential address between the hours of 11 pm to 6 am seven days per week.
(4)That he report every Monday to the Flemington Police Station between the hours of 6 am and 9 pm.
(5)That he not contact directly or indirectly any witness for the prosecution, save and except the informant or her nominee.
(6)That he attend Anglicare on a weekly basis to receive and engage in counselling for drug and alcohol, anger management and grief and loss issues, and abide by all of the lawful directions of Anglicare.
(7)That he attend Robert Allen, Bail Support Worker, Bail Support Program Office, 4th Floor, Melbourne Magistrates’ Court immediately upon release and thereafter fortnightly or more frequently as directed by that office.
(8)That he surrender any passport which he may hold to the informant within 24 hours of being admitted to bail and not apply for another passport.
(9)That he not attend any point of international departure during the period of bail.
(10)That he abide by the conditions of the intervention order taken out by Jessica Lee and dated 21 December 2004.
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