Re Spreckley
[2021] VSC 186
•19 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0075
IN THE MATTER of the Bail Act 1977 (Vic)
-and-
IN THE MATTER of an application for bail by Andrew SPRECKLEY
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2020 |
DATE OF JUDGMENT: | 19 April 2021 |
CASE MAY BE CITED AS: | Re Spreckley |
MEDIUM NEUTRAL CITATION: | [2021] VSC 186 |
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CRIMINAL LAW – Application for Bail – Exceptional circumstances made out – Not shown to be an unacceptable risk - Contravening a family violence intervention order – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E Clark | James Dowsley & Associates |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
The applicant had been arrested on 28 February 2020 and charged with breach of a Family Violence Intervention Order (‘FVIO’) and bailed to Broadmeadows Magistrates’ Court on 16 September 2020.
On 29 February 2020 the applicant re-offended by sending a text message in contravention of the FVIO. 1 March 2020, Informant Detective Senior Constable Nadine Starbuck arrested and remanded on the following charges:
·28 charges of contravening a family violence intervention order;
·3 charges of contravening a family violence intervention order whilst knowing that his conduct will probably cause apprehension or fear in the protected person for his or her own safety or that of any other person;
·1 charge of persistently contravening a family violence intervention order;
·1 charge of stalk another person;
·1 charge of using a carriage service to menace; and
·1 charge of contravening a conduct condition of bail.
Further, he is on remand in relation to matters for which he was charged by Informant Detective Senior Constable Michael Davies on 5 April 2020 which are:
·2 charges of contravening a family violence intervention order.
The applicant is next listed to appear before the Broadmeadows Magistrates’ Court on 11 May 2020 for a further mention hearing in relation to the Informant Starbuck matter where the complainant is Narelle Mullenger (NM) for a contested matter. The applicant also on that date will appear in relation to matter of Informant Davies in respect of the complainant, Joel Spreckley (JS), for mention.
On 6 January 2020 he was placed on adjourned undertaking without conviction on a charge of persistence contravention of a FVIO. For some reason that undertaking was only for the period of one month and the charge was dismissed on 5 February 2020.
The Starbuck charges are in date alleged between 29 January and 27 February 2020. The first 5 charges were committal whilst he was on the undertaking and if that fact had been known the charges would not have been dismissed.
The secondary significance of that conduct is that the applicant is alleged to have committed a sch 2 offence under the Bail Act 1977 (The Act’), persistence contravention of a family violence intervention order whilst he was undergoing a sentence for a sch 2 offence, namely the adjourned undertaking therefore pursuant to s 4AA(2)(c)(v) of the Act. I must there refuse bail unless I am satisfied that exceptional circumstances exist that justify the grant of bail.
His prior criminal history includes breach of family violence order and persistent contravention which led to diversion in 2015. And in May 2016 for 12 contraventions of a FVIO he was fined $1,000 without conviction. The AFM in the 2015 and 2016 conduct was his former wife Julie Spreckley (SJ). The other matters dealt with in 2016 occurred before and around the time of the diversion. The matters heard this year related to his children.
It follows that the applicant has been treated very leniently in the legal process. It also demonstrates that he is a slow learner in the sense that he does not appear to have much insight into the consequences of his offending both as it effects the law and his victims.
It appears to be accepted that the applicant suffers from an underlying psychopathic condition or conditions which may offer some explanation for his conduct and in part it may do so.
It does not excuse it. It has been going on for five years and predate at best some of the events which have led to the applicant’s condition.
The only redeeming feature of the applicant’s conduct is that it has not been marked by physical violence. That is not to say that his present victim does not feel threatened by the conduct. I accept that she does and would prefer that the applicant not be released on bail and I have taken her views into account.
Because of amendments made to the Act as a result of the Family Violence Royal Commission I am obliged to have regard to certain matters.
Section 5AAA of the Act
First, I must have regard to such orders as are in place. The applicant is subject to an interim FVIO in favour of Narelle Mulligan (NM), the present complainant and an interim personal safety intervention order for Vanessa Graus (VG). Both of those orders are listed at Broadmeadows Magistrates’ Court on 11 May 2020.
There are two other family violence orders from Julie Spreckley (SJ) and from children, and his mother-in-law. Those orders will remain current until 9 April 2021.
Although the matter with which you were charged on 2 April are on summons, they are still relevant on that the applicant communicated with his son. The alleged breaches are not particularly serious.
It was put on behalf of the applicant that the following matters, taken together, constitute exceptional circumstances. It is proper to proceed on the basis that a collection of matters can constitute exceptional circumstances.
·The applicant had stable accommodation available with his step-father, Mr Geoffrey Proctor and his mother, Ms Louise Spreckley. The accommodation being at 59 Browtop Road, Narre Warren.
·The accommodation proposed is approximately 55 kilometres from the suburb within which the complainant resides.
·The applicant could be supervised by his mother and step-father at their address. The applicant had at the time of the alleged offending been residing alone in a unit in the Essendon area in close proximity to the complainant.
·The applicant’s step-father provided an undertaking to the Court that he would report any contraventions of conditions of bail or of conditions of the intervention order if he became aware of any such contraventions.
·The applicant has a relevant but brief criminal history.
·The applicant’s criminal history in relation to the sentencing hierarchy does not extend beyond the imposition of a financial penalty.
·That a non-custodial sentence would not be outside the appropriate sentencing range and that if a custodial sentence was imposed it was argued it would likely be a relatively brief term of imprisonment in combination with a Community Correction Order (‘CCO’).
·That upon assessment of the likely sentence to be imposed, it is probable that the applicant would have some mitigation available to him through the application of the Verdins[1] principles.
[1](2007) 16 VR 484.
·That delay was a significant factor to be taken into account in circumstances where contested hearings in the Magistrates’ Court are presently not being conducted and future contested hearing dates are not being provide.
·That there is likely to be a significant backlog in respect of contested hearings in the summary stream.
·That contested hearings already vacated would have priority in advance of any contested hearing relating to the matters of the applicant.
·The COVID-19 pandemic should be taken into account.[2]
[2]Reference was made to His Honour Justice Lasry’s decision of R v Broes. (2020) VSC 128.
·The availability of treatment to the applicant through the Court Integrated Services Program (CISP’)of which he was found to be a suitable candidate.[3]
[3]Assessment report produced by Fiona Devlin, Assessment & Referral Practitioner CISP Remand Outreach Program, dated 6 April 2020.
·The applicant’s treating psychiatrist, Dr Remy Glowinski had indicated through a reference letter that he was willing to continue to treat the applicant if the applicant were to be released from custody.[4]
[4]Reference letter from Dr Remy Glowinski, Consultant Psychiatrist, dated 25 March 2020.
·The applicant’s mother had been in contact with a representative of the Heidelberg Repatriation Hospital who had indicated they had capacity for a consultant psychologist to engage with the applicant if he were to be released from custody.
·A surety of $5000.00 was available.
·That whilst the alleged offending was persistent in nature it was conceded by the Informant that there were no allegations of physical violence or threats of physical violence made toward the complainant.
·That there are some reasonably arguable aspects of the Prosecution case.
·The applicant does not have any prior criminal history in relation to bail offences, however the applicant is presently charged with contravening a conduct condition of bail.
·There remains in place an intervention order between the applicant and the complainant, Narelle Mullenger (NM).
·That the applicant is a person of some vulnerability whilst in custody due to previous periods of employment with Victoria Police and with the Department of Human Services in the capacity of a Child Protection worker.
·That whilst the attitude of the complainant is a significant and important factor to be taken into account, that it should not overwhelm the other factors that are relevant to the application.
·Appropriate conditions could be imposed to reduce the risk to an acceptable level.
Although the respondent submitted that the applicant has not shown exceptional circumstances and that the applicant was an unacceptable risk.
It was accepted that there would be a very significant delay because of the restrictions placed on the Courts because of the COVID 19 pandemic.
I am satisfied that the delay might well exceed any sentence that the applicant is likely to receive.
Although the applicant must be getting close to the point where the court would take the view that a custodial sentence is appropriate in relation to his behaviour, given that none of the offending in this case involves actual violence, although the offending is frequently persistent, it is still possible that the applicant may not receive a custodial sentence for this behaviour. I am satisfied that exceptional circumstances have been made out.
That would leave open the question of whether or not the applicant was an unacceptable risk of endangering the public, committing further offences and of interfering with witnesses, and whether or not those matters can be satisfactorily attended to by the imposition of conditions. I am satisfied that the proposed conditions are such that the applicant is not an unacceptable risk.
Further, pursuant to s.5AAA of the Bail Act 1977, I am obliged to have regard to such family violence orders as are in place and I have had regard to those orders. I am satisfied that with the imposition of conditions those matters can be satisfactorily dealt with. I have had regard to the complainant's view in relation to this matter and am satisfied that the proposed conditions are sufficient for her protection as matters stand.
Of course, the applicant would understand that if he is in breach of any of these bail conditions, his bail will be revoked and he will not very easily get bail in these matters in the future.
In relation to the form of the conditions, it is not my practice to make it a condition of bail that a person obey intervention orders. It is not appropriate, in my mind, that a condition of bail would simply call on someone to keep the law. I make it clear, however, by listing such orders in other matters, that those orders are in force and that they bind the applicant.
It is not a concession of any kind that I do not include them as a condition, it is just that I do not think that is the way to go about it. The applicant is bound by the four orders, in fact, that are in place at the moment, although as I understand it, two of the orders come up for consideration on 11 May 2020.
I will add to the matters that I already averted to, that I regard the existence of a surety as being quite significant and the fact that the applicant has now been in custody since 1 March until today’s date, as also being quite significant.
The order of the court will be:
(a) The court is satisfied that exceptional circumstances exists. It has not been shown that the applicant is an unacceptable risk of the reasons announced this day;
(b) The applicant is subject to intervention order in Case No. K13246334 made on 18 March 2020 protecting Narelle Mollinger;
(c) The applicant is subject to an intervention order in Case No. L10761846 made on 7 April 2020, protecting Vanessa Grouse. The applicant is subject to an intervention order in Case No. E12078765 made on 9 October 2017 protecting Julie Hayley and Joel Spreckley.
(d) The applicant is the subject of an intervention order in Case No. B12084724 made on 9 October 2017 protecting Dianne Cameron;
(e) that Andrew Spreckley be admitted to bail on his own undertaking and one surety in the sum of $5000 on the following special conditions:
(i) that he attend the Broadmeadows Magistrates' Court on 11 May 2020 and then surrender himself and must not depart without the leave of the court, and if leave is given, return at the times specified by the court and again surrender himself into custody;
(ii) that he reside at 59 Browtop Road, Narre Warren in Victoria and not change that address without the leave of the court;
(iii) that he present at the place of residence between the hours of 9pm and 6am each day except in an emergency or in the company of Louise Spreckley or Geoffrey Prompter;
(iv) that he present at the front door of the premises during curfew hours if requested to do so by a member of Victoria Police;
(v) that he not go to or remain within the City of Moonee Valley;
(vi) that he not use a public payphone except in an emergency;
(vii) that he complies with the lawful directions of the Court Integrated Support Program, CISP, he contact Ms Fiona Devlin, Case Manager CISP, by telephone on Monday 4 May at 11.30 am;
(viii) that he attend – whether in person or electronically – an appointment with Dr Anna Brett at Narregate Medical and Dental Centre on 4 May 2020 at 10.20 am;
(ix)that he attends - whether in person or electronically – an appointment with Dr Remy Glowinski on 29 May 2020 at 2pm, he continue to engage with treatment with Dr Remy Glowinski, or his nominee;
(x) that he not contact prosecution witnesses other than the informant;
(xi)that he not leave the state of Victoria;
(xii) that he possess and use only one mobile phone and to provide the informant immediately with the phone number, the IMEI number and passcode; and
(xiii) upon request by a police officer to present his mobile phone for inspection if that officer suspects, on reasonable grounds, that he has committed a family violence offence.
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