Re Sheen
[2015] VSC 486
•10 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0128
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Mark SHEEN |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2015 |
DATE OF JUDGMENT: | 10 September 2015 |
CASE MAY BE CITED AS: | Re Sheen (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 486 |
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CRIMINAL LAW – Bail – Murder – Whether the applicant has exceptional circumstances why detention not justified – Bail Act 1977, s 13(2) – Exceptional circumstances not established.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms N Kaddeche | Turnbull Lawyers |
HIS HONOUR:
Introduction
Mark Sheen, the applicant, is charged with the murder of Gary Faull on 4 April 2015.
He has made application to this Court for bail.
In my view, the application must be refused.
As I have said, the applicant is charged with murder.[1] Pursuant to s 13(2) of the Bail Act 1977, the Court is required to refuse bail in the case of a person charged with murder unless ‘satisfied that exceptional circumstances exist which justify the making of such an order’.
[1]He is also charged with failing to render assistance after an accident (charge 2); failure to stop after an accident where a person was injured (charge 3); failure to provide name and address after motor vehicle accident where a person was injured (charge 4); possession of a drug of dependence (amphetamine) (charge 5); possession of a prohibited weapon without exemption (knuckledusters) (charge 6); driving whilst disqualified (charge 7).
It is clear that exceptional circumstances justifying the grant of bail may flow from a concatenation of circumstances, none of which alone would justify the making of an order.
In this case, the applicant relies on a combination of factors spelled out in the affidavits of his solicitor, Adrian Lewin, affirmed 27 August 2015 and 5 September 2015, which have been filed in support of his application. In summary, those factors are:
· a weak prosecution case;
· delay in the matter coming to trial;
· the applicant’s youth;
· this is the applicant’s first time in custody;
· the applicant has employment available;
· the applicant has stable accommodation available;
· his criminal history is not a disqualifying factor; and
· any risk may be adequately ameliorated by conditions.
Weak Crown case
Since the applicant places substantial reliance of the assertion that the prosecution case of murder is weak, it is necessary to say something about the main features of the case.
The prosecution case is that at about 5.15pm on Saturday, 4 April 2015, the applicant rode a motorcycle along Howitt Avenue, Corio, at a fast speed. Gary Faull, the deceased, was standing on the nature strip in Howitt Avenue. Mr Faull, who was raking a neighbour’s lawn, had a rake in his hands which he threw out in front of the applicant, striking the front mudguard of the motorcycle.
The applicant travelled a short distance and executed a ‘U’ turn. He accelerated heavily while travelling in the direction of Mr Faull — reaching a speed of between 68 and 73 kilometres per hour over a short distance — before colliding with Mr Faull.
Whilst he stood on the road, Mr Faull was struck with extreme force by the motorcycle, causing him catastrophic injuries to the head and torso, from which he later died.
As a result of the collision the applicant crashed his motorcycle. After coming off his motorcycle, the applicant got up and attempted to start it, before being confronted by witnesses in the street. He then ran from the scene but was pursued and caught by a witness, John Burtt. Mr Burtt walked the applicant back to the scene, holding onto the straps of a backpack the applicant was wearing.
As they were returning to the scene, the applicant telephoned his friend, Matthew Robertson, who shortly later arrived on the scene in a small truck. The applicant then resisted Mr Burtt, shaking free of his backpack. Robertson then drove him from the scene.
The applicant evaded police until he was arrested at an address in Lara on 22 April 2015. When located by police at Lara, the applicant attempted to flee on a stolen high-powered motorcycle, before being physically restrained by police. He was taken to the Geelong Police Station and was interviewed. The applicant admitted being the rider of the motorcycle at the time of the collision. He gave a version of events in relation to how the collision occurred, in effect claiming that it was an unavoidable accident and that the deceased had attempted to punch him off his motorcycle. This version, it must be said, appears to be inconsistent with the physical evidence at the crime scene, and with witness accounts of what occurred.
The respondent submits that the prosecution case is strong. All eye witnesses describe the applicant accelerating towards the deceased at a fast speed, and no eye witness describes a punch being thrown by the deceased. Moreover, the expert opinion of Dr Jenelle Mehegan, who reconstructed the collision, is that the applicant’s motorcycle was travelling at between 68 and 73 kph when it collided with the deceased; the trajectory of the applicant’s motorcycle immediately after the impact with the deceased is not consistent with a rider having steered right to avoid a collision; and the physical evidence is not consistent with the applicant’s account of the collision.
Despite the applicant’s assertions that the Crown case is weak, it seems to me that, having regard to the eye witness accounts, a jury may well be satisfied — based on those accounts — that the applicant deliberately drove his motorcycle into the deceased, either intending to cause him really serious injury, or foreseeing the probability that really serious injury would result from his actions. It may be, of course, that, when tested, the eye witness accounts will not be as strong as appears from the statements. That is not a matter that I can presently judge. It is enough to observe that, as presently informed, I do not assess the prosecution case as weak. In this regard, I note that the opinion of Dr Jenelle Mehegan, an expert in accident reconstruction, as to the manner in which the collision occurred, seems to contradict key aspects of the applicant’s version to police. Her opinion also remains untested, so that I have no reason at this stage not to give it weight.
Delay
The applicant was, as I have mentioned, arrested on 22 April 2015. A committal hearing is listed for 14 December 2015. On the assumption that the applicant is committed, it seems that a trial is unlikely to be reached until the second half of 2016. The result will be that the applicant will be in custody for over a year from arrest to trial.
Significantly, however, the applicant does not submit — nor properly could he — that at this stage the delay appears to be inordinate.
Youth and first time in custody
The applicant was born on 1 August 1993, and so is 22 years of age.
It is submitted on his behalf that his long term exposure to the adult remand system needs to be avoided where possible and ought to be taken into account. The applicant has spent four months in custody and it is his first time in the prison system. It is argued that any time in custody has a salutary effect and acts as a deterrent reducing the risk of re-offending. Further, as a result of the June 2015 prison riots, between 1 July to 27 July 2015 the applicant was exposed to significant restrictions on his movements in custody, in either full lock down or partial lockdown, having a further salutary effect.
The respondent submits, however, that in the circumstances of this case, and paying due regard to the applicant’s prior history, the applicant’s youth is not an ‘overwhelming factor’ justifying a grant of bail. I agree.
Prior history
The applicant has a history of offending, commencing with an appearance before a court in 2004. He has had a number of convictions or findings of guilt since then for offences involving dishonesty; criminal damage; drugs; alcohol; weapons; violence; and many driving violations. He was sentenced to a suspended sentence of imprisonment in February 2014 for dangerous driving whilst being pursued by police.
Further, the applicant has a large number of pending charges, including: careless driving, failing to provide name and address after an accident and unlicensed driving, alleged to have occurred on 13 January 2014; intentionally causing injury and associated offences, alleged to have been committed on 23 May 2014; and theft, possessing a controlled weapons (knife and knuckledusters), unlicensed driving, using an unregistered motor vehicle, and assaulting and resiting police, occurring on 23 March 2015. He has, as the respondent pointed out, previously failed to answer bail.
Self-evidently, the applicant’s history of offending, and the pending charges, militate against the applicant’s contention that there are exceptional circumstances justifying a grant of bail.
Employment
The ‘evidence’ that the applicant will have employment available if bailed was weak. It consisted of assertion from the Bar table, and amounted to no more than a fervent hope that employment would be available to the applicant under the auspices of his foster father.
In any event, the availability of employment would not alone relevantly be an exceptional circumstance.
Accommodation
It was submitted that the applicant will be able to reside with his foster mother, Michelle Conway, although it seems that, at the time of his arrest, the applicant had not resided at his foster family’s home for several years.
The respondent points out that, at the time of his arrest, the applicant had no fixed place of abode. He had managed successfully to evade police for over two weeks following the collision, and has no dependants or family living in the Geelong area.
In my view, in light of these matters, one is justified in enjoying some scepticism about the prospect of the applicant remaining in stable accommodation if released.
Conclusion
As I have said, the applicant must show that there are exceptional circumstances justifying the grant of bail. He has failed to do so.
The applicant principally relied on a weak prosecution case. But, as I have endeavoured to explain, it does not seem weak to me.
Reliance was also placed on the applicant’s youth and the anticipated delay. It is accepted, however, that the delay presently is not ‘inordinate’, so that the applicant’s youth cannot be seen to be a persuasive factor — when coupled with delay — in favour of bail.
The finding that the Crown case is not weak and that the anticipated delay will not be inordinate, is enough to dispose of the application, since, absent those factors being present, the other factors relied upon — alone or in combination — would not be sufficient to establish exceptional circumstances. I certainly do not think that the conditions of any proposed bail as suggested by the applicant, or the provision of the proposed sureties, could affect that position.
I note finally, that the respondent also opposed bail on the grounds that the applicant posed an unacceptable risk that he would fail to surrender himself into custody; would commit further offences whilst on bail; and would endanger the safety and welfare of the public. In light of my conclusion that the applicant has failed to establish exceptional circumstances, I need not consider whether he poses an unacceptable risk in the ways postulated. I would, however, hold some sympathy for the view that the applicant poses an unacceptable risk in each of the ways posited.
Order
The application for bail is refused.
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