Re Stewart
[2022] VSC 245
•20 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0104
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by KYLE STEWART |
---
JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2022 |
DATE OF JUDGMENT: | 20 May 2022 |
CASE MAY BE CITED AS: | Re Stewart |
MEDIUM NEUTRAL CITATION: | [2022] VSC 245 |
---
CRIMINAL LAW – Bail – Applicant charged with Schedule 1 drug offence – Need to show exceptional circumstances justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Availability of residential drug treatment, electronic monitoring and a surety – Bail refused – Bail Act 1977, s 3AAA, s 4, s 4AA, s 4 A, s 4D, s 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Tovey | Fayman Lawyers |
| For the Respondent | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
Kyle Stewart (‘the applicant’), aged 27 years,[1] seeks bail from this Court. He has, among others, been charged with a Schedule 1 offence under the Bail Act 1977 (‘the Act’) — trafficking in a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug[2] — and as a result acknowledges that he bears the onus of showing that exceptional circumstances exist justifying the grant of bail.
[1]His date of birth is 6 March 1995.
[2]See sch 1, cl 6(b).
The respondent opposes bail, contending that the applicant poses an unacceptable risk in the ways contemplated by the provisions of s 4E(1) of the Act.
I have concluded that bail should be refused. My reasons follow.
The charges and relevant history
In the circumstances that I will later refer to, the applicant was charged on 25 February 2021 with:
· possessing a firearm in breach of a firearm prohibition order[3] (three charges — charges 1, 2 and 3);
[3]Firearms Act 1996, s 112B.
· being a prohibited person in possession of a firearm[4] (three charges — charges 4, 5 and 6);
[4]Firearms Act 1996, s 5(1).
· possessing a traffickable quantity of firearms[5] (one charge — charge 7);
[5]Firearms Act 1996, s 7C(1).
· trafficking a commercial quantity of a drug of dependence, methylamphetamine[6] (one charge — charge 8);[7]
[6]Dugs, Poisons and Controlled Substances Act 1981, s 71AA.
[7]See [6] below.
· negligently dealing with the proceeds of crime[8] (three charges — charges 9, 10 and 11);
[8]Crimes Act 1958, s 194(4).
· dealing with property reasonably suspected of being the proceeds of crime[9] (three charges — charges 12, 13 and 14);
[9]Crimes Act 1958, s 195.
· unlicensed driving[10] (one charge — charge 20);
[10]Road Safety Act 1986, s 18(1)(a).
· receiving stolen goods[11] (one charge — charge 23);
· commit and indictable offence whilst on bail[12] ( charges — charges 15, 16, 17, 18, 19); and
· contravening a conduct condition of bail[13] (two charges — charges 21 and 22).
[11]Crimes Act 1958, s 88(1).
[12]Bail Act 1977, s 30B.
[13]Bail Act 1977, s 30A(1).
Upon being charged, the applicant was remanded in custody. Since then, a number of things have transpired, including the following:
· a filing hearing was listed in the Melbourne Magistrates’ Court on 26 February 2021, but the applicant did not apply for bail;
· a committal mention was listed for 17 May 2021, but was adjourned administratively to enable the applicant’s legal practitioner to peruse the brief and obtain instructions;
· at a committal mention on 2 July 2021, a committal hearing was listed for 17 August 2021;
· the committal did not proceed on 17 August 2021, however, since DNA analysis was not available at that time, the committal thus being adjourned to 20 October 2021, and a bail application being listed for 3 September 2021;
· on 3 September 2021, the applicant withdrew the proposed bail application;
· on 14 October 2021, the applicant renewed his bail application in the Magistrates’ Court, the magistrate adjourning the matter to 27 October 2021 for decision;
· in the meantime, on 20 October 2021, the committal hearing was administratively adjourned due to the unavailability of prosecution witnesses, the committal being given a new date, 17 December 2021;
· on 27 October 2021, the magistrate refused bail, finding that although the applicant had demonstrated the existence of exceptional circumstances, he relevantly posed an unacceptable risk;
· following a committal hearing on 17 December 2021, the applicant was committed for trial in the County Court — an initial directions hearing being fixed for 25 January 2022 — but the applicant did not apply for bail;
· the applicant’s previous legal practitioners ceased to act between the committal hearing and the initial directions hearing;
· the initial directions hearing proceeded in the County Court on 25 January 2022 — the applicant’s current legal practitioners commenced acting for him on this date — and was adjourned so as the parties could engage in resolution discussions;
· on 11 February 2022, a judge in the County Court refused the applicant bail, finding that although exceptional circumstances existed, the applicant posed an unacceptable risk;
· on 16 March 2022, a further directions hearing was administratively adjourned to facilitate resolution discussions;
· on 2 May 2022, a further directions hearing proceeded, and timetabling for trial documents was set; and
· a further directions hearing is fixed for 29 June 2022.
Against the background that he has twice previously been refused bail — once by a magistrate and once by a judge of the County Court — the applicant now seeks bail from this Court. As I have indicated, bail is opposed by the respondent.
The statutory regime
Turning to the provisions of the Act governing the resolution of this application, s 4 makes plain that the applicant is entitled to bail unless the Act requires the Court to refuse bail. In turn, s 4AA(1) of the Act provides that the ‘exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence’; and s 4A(1A) provides that this Court ‘must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail’. Hence, since trafficking in a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug is a Schedule 1 offence, the applicant must be refused bail unless he can satisfy the Court that exceptional circumstances exist that justify the grant of bail.
The Act does not define exceptional circumstances. It has been described as an elusive concept.[14] As Beach JA observed in Ceylan,[15] however, it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[16] Of relevance to the present case, one matter that has often been regarded as important in this context is the absence of factors pointing to the applicant presenting an unacceptable risk in any of the ways contemplated by the Act.
[14]In DPP v Cozzi (2005) 12 VR 211, 214 [18] (‘Cozzi’), Coldrey J described it as ‘an illusive one’.
[15]Re Ceylan [2018] VSC 361, [46].
[16]See also Cozzi, 215–16 [22]–[25].
Further guidance concerning exceptional circumstances for the purposes of the Act may be derived from what Beach JA said in Re Sam:[17]
The Bail Act does not define what are exceptional circumstances. It is trite that, in order to be exceptional, the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail, notwithstanding the very serious nature of the charge against her.[18] Exceptional circumstances may, in an appropriate case, consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.[19]
[17]Re Sam [2017] VSC 91, [22] (citations as in original).
[18]Re John McDonald [2010] VSC 217 [10] (Kaye J, as his Honour then was).
[19]Ibid.
And in a later case, Re Diab, Beach JA said:[20]
It is well established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[21] Beale J, citing Kaye J in DPP v Muhaidat,[22] referred to the question of exceptional circumstances in the following terms:[23]
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[24]
[20]Re Diab (2020) 282 A Crim R 462, [36] (citations as in original) (‘Re Diab’).
[21]Re Reker [2019] VSC 81.
[22]Re Muhaidat [2004] VSC 17.
[23]Re Reker [2019] VSC 81 at [39].
[24]Re Muhaidat [2004] VSC 17 at [13]–[14].
Section 4A and s 4D of the Act require the Court to adopt a two-step approach. As a first step, the Court must consider the exceptional circumstances test, and then, as a second step, move to the unacceptable risk test. At both stages, the Court must take into account all the circumstances that are relevant to the matter, including the surrounding circumstances in s 3AAA of the Act. Further, the Court is required to interpret and apply the Act having regard to the matters set out in s 1B.
Section 3AAA of the Act sets out surrounding circumstances, so that (so far as relevant) the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(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;
…
(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;
…
And s 1B provides:
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
As I have indicated, the applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances.[25] If the Court is satisfied that the applicant has shown exceptional circumstances sufficient to grant bail, then the Court must turn to the unacceptable risk test, found in s 4E(1). That test requires the Court to refuse bail if the ‘prosecutor’ satisfies the Court[26] 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.
[25]Section 4A(2) of the Act.
[26]Subsection 4E(2).
As mentioned, in considering whether a relevant risk is unacceptable, s 4E(3) requires the Court once more to take into account the ‘surrounding circumstances’, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
The evidentiary and other material
Both the applicant and the respondent filed affidavits, the contents of which I have taken into account. In support of his case, the applicant relied on three affidavits: first, an affidavit affirmed by his solicitor, Jordana Fayman, on 26 April 2022; secondly, an affidavit affirmed on 26 April 2022 by Philipp Schluter, Business Development Manager for Attenti Australia Pty Ltd (‘Attenti’), suppliers of electronic monitoring devices; and, thirdly, an affidavit affirmed on 22 April 2022 by the applicant’s grandmother and proposed surety, Corinne Andrews, offering a surety of $30,000.
The respondent relied on an affidavit affirmed on 13 May 2022 by Ned Zvekic, the solicitor with the Office of Public Prosecutions having the carriage of the applicant’s case.
I also received — and have taken account of — viva voce evidence from three witnesses: Aaron Gilhooley, operations manager of The Cottage, a residential treatment facility in Shepparton; Philipp Schluter, from Attenti; and the informant, Detective Senior Constable Amanda Bennett. Save for the references below, it is unnecessary to set any of it out in detail.
Counsel for the applicant and for the respondent each relied on written submissions, supplemented by oral submissions.
The alleged offending
At the time of the alleged offences, 24 and 25 February 2021, the applicant was subject to two counts of bail for other alleged offending, and was due to appear at the Magistrates’ Court on 20 May 2021. He was also subject to a firearm prohibition order,[27] served on 13 September 2018 (and current for 10 years from that date), and was being sought by police in relation to an incident on 17 November 2020 in which it was alleged the applicant discarded a firearm after a high-speed motor vehicle collision.[28]
[27]See Firearms Act 1996, s 112D.
[28]See [30] et seq below.
The applicant has in recent years had an intimate relationship with ‘AG’. It is alleged that on 23 February 2021 the applicant threatened violence to AG — including smashing the window of a car she was driving — as a result of which police obtained an interim family violence intervention order naming AG and her parents as affected family members.
Two days later, on 25 February 2021, Detectives knocked on the door of AG’s residence in Point Cook. One detective sighted the applicant’s face through the front-door window, and AG called out, ‘Who is it?’. Nobody came to the front door and Detectives heard the sound of metal clanking from inside the house.
Detectives forced entry to the premises and found the applicant and AG in the living room. The applicant was arrested and found in possession of keys to a motor vehicle parked in the driveway. Police searched the premises and found a loaded silver .22 Beretta handgun in the oven; a body bag on the ground in the kitchen containing items including $1,430 cash and multiple zip lock bags containing methylamphetamine, weighing a total of 280.40 grams; and a shoe box containing 242.9 grams of a white granular substance, believed to be ‘cutter’, in a bedroom. AG denied previously seeing the gun in the oven or the bag containing drugs.
In the car in the driveway, police located various items, including a sawn-off semi-automatic .22 rifle in a black bag in the boot; and, in the front passenger foot well, a brown bag containing 165.2 grams of methylamphetamine, $150,350 cash and a homemade handgun with a single round of .22 ammunition.
I need not describe the other alleged offending. The evidence that I have summarised tends to establish that the applicant had possession of three firearms — the Beretta pistol, the sawn-off .22 semi-automatic rifle and the homemade handgun (two of which were loaded) — a quantity in excess of 400 grams of methylamphetamine (together with the accoutrements of trafficking) and a large sum of cash, including $150,350 which was found in close proximity to 165.2 grams of methylamphetamine and a handgun.
The offences for which the applicant was on bail at the time of the alleged offending
As I have mentioned,[29] at the time of the instant offending the applicant was subject to two counts of bail, the first relating to charges laid by Senior Constable Thomas Scott (‘the Scott charges’), and the second relating to charges laid by First Constable Hayden Chalmers (‘the Chalmers charges’).
[29]At [20] above.
The offences leading to the Scott charges — which included reckless conduct endangering serious injury, theft of a motor vehicle, fraudulently using registration plate, driving whilst disqualified and failing to give his name and address — were committed on 21 February 2020 and resulted in the applicant’s arrest on 29 February 2020. He was released on bail by the Magistrates’ Court on 21 July 2020, to appear at that court on 20 May 2021. The Scott charges were finalised in the Magistrates’ Court on 23 June 2021, and resulted in the applicant being sentenced to four months’ imprisonment and a fine.
The offences leading to the Chalmers charges — which included theft of a motor vehicle, driving whilst disqualified, using vehicle with plates not issued by corporation, failing to render assistance after accident, refusing to undergo preliminary oral fluid test and possessing a drug of dependence (GHB) — were committed on 28 and 29 February 2020 and resulted in the applicant’s arrest on 29 February 2020. As he was on the Scott charges, the applicant was released on bail by the Magistrates’ Court on 21 July 2020, to appear at that court on 20 May 2021. The Chalmers charges were also finalised in the Magistrates’ Court on 23 June 2021, and resulted in the applicant being sentenced to six months’ imprisonment and a fine.
Both the Scott charges and the Chalmers charges involved the applicant driving stolen motor vehicles in a dangerous fashion on public roads, and involved collisions with vehicles driven by innocent motorists.
A subsequent matter
Senior Constable Melanie McNamara laid charges (‘the McNamara charges’) against the applicant on 25 February 2021 — that is, the same day as the present charges —including being a prohibited person in possession of a firearm in contravention of a firearm prohibition order, contravene conduct conditions of bail, committing an indictable offence whilst on bail, unlicenced driving, fail to give name and address after a collision and entering an intersection against a red traffic signal. The charges involved conduct on 17 November 2020 whereby the applicant entered an intersection against a red signal and collided with another vehicle, and, whist fleeing the scene, threw a firearm into long grass.
The McNamara charges which were dealt with in the Magistrates’ Court on 20 January 2022. The applicant was sentenced to seven months’ imprisonment for being a prohibited person in possession of a firearm in contravention of a firearm prohibition order, and an aggregate of 14 days’ imprisonment on the other charges.
The applicant’s other criminal history
The applicant’s criminal history commences in the Children’s Court in April 2011, when he was convicted of multiple offences, including armed robbery, robbery, recklessly causing injury, affray, assault and other offences. He was placed on a youth attendance order, which he subsequently breached. In November of that year, he was convicted in the Children’s Court of offences including armed robbery and intentionally causing injury, and was ordered to be detained in a youth justice centre. In March of the following year, 2012, he was released on a youth supervision order by the Children’s Court on charges of armed robbery and recklessly causing injury. Later that year, he was released on an undertaking for criminal damage; and in March 2013 was placed on probation for dishonesty and driving offences.
The following year, in August 2014, the applicant was dealt with in the Magistrates’ Court for theft, unlicensed driving, exceeding the prescribed concentration of alcohol and other driving offences, and was released on a 12 month community correction order (‘CCO’), which he later breached.
In February of the following year, 2015, the applicant was sentenced to a 15 month CCO for driving whilst disqualified, and other offences.
A year later, in February 2016, the applicant was sentenced in the Magistrates’ Court to pay a fine for dishonestly retaining stolen goods and failing to answer bail.
On 7 August 2018, the applicant was dealt with in the Magistrates’ Court for breach of the CCO imposed in February 2015. He was also sentenced to 16 months’ imprisonment to be served by way of a drug treatment order for a host of offences, including being a prohibited person in possession of a firearm (three charges), possessing a controlled weapon, handling stolen goods, dealing with the proceeds of crime, theft, obtaining property by deception, failing to answer bail, committing an indictable offence whilst on bail and other offences. He subsequently breached that drug treatment order, and, on 19 February 2019, was sentenced to serve the unexpired portion of three months’ imprisonment.
On 17 June 2019, in the Magistrates’ Court, the applicant was sentenced to nine months’ imprisonment for offences including reckless conduct endangering life, failing to stop on police direction, theft of a motor vehicle, unlicensed driving, going equipped to steal, receiving stolen goods, dealing with the proceeds of crime, possessing methylamphetamine, driving offences and possessing a controlled weapon.
Two years later, in June 2021, the applicant was sentenced in the Magistrates’ Court to eight months’ imprisonment for offences including reckless conduct endangering life, dangerous driving, driving whilst disqualified, and other offences. These include the Scott and Chalmers charges earlier referred to.[30]
[30]At [26] et seq.
On 20 January 2022, the applicant was sentenced in the Magistrates’ Court to seven months’ imprisonment for being a prohibited person in possession of a firearm, contravening a conduct condition of bail, committing an indictable offence whilst on bail and other offences. These are the McNamara charges referred to above.[31]
[31]At [31].
From the foregoing summary, it may be seen that the applicant has been convicted four times of being a prohibited person in possession of a firearm (three times on 7 August 2018 and once on 20 January 2022). Two of those charges were laid by Detective Senior Constable Gary Watson, and relate to the applicant’s possession on 20 February 2017 of a loaded Beretta handgun and a pump action .22 rifle, both with serial numbers ground off. Another of those charges, laid by First Constable Natalee Ryan, related to the applicant’s possession of a sawn-off shotgun on 21 August 2017.
It is also of note that the applicant has been dealt with multiple times for bail offences.
Orders under the Family Violence Protection Act 2008
The applicant is subject to a family violence intervention order protecting AG and her parents (which does not expire until 31 December 2060). Apart from the charges for which he currently seeks bail, he has been charged on summons with 51 charges of contravening a family violence protection order[32] between 19 December 2021 and 8 February 2022, and one charge of persistent contravention of a family violence intervention order. These charges relate to telephone calls made from custody by the applicant to AG.[33]
[32]Family Violence Protection Act 2008, s 123(2).
[33]Family Violence Protection Act 2008, s 125A(1).
The applicant’s submissions
In summary, the applicant relied on a combination of factors in an endeavour to establish that exceptional circumstances exist which justify the grant of bail, including the:
· delay in the matter coming to trial;
· issues to be tried in this case, including a strong defence;
· availability of residential rehabilitation through The Cottage;
· availability of electronic monitoring;
· impact of the COVID-19 pandemic;
· availability of a substantial surety; and
· applicant’s family support.
Furthermore, counsel for the applicant contended that the material produced by the respondent could not satisfy the Court to the appropriate standard that the applicant presents an unacceptable risk that he will fail to appear on bail. Stringent conditions would be sufficient, counsel submitted, to make the risks presented by the applicant acceptable. The suggested conditions included:
· a surety in the amount of $30,000;
· participation by the applicant in The Cottage residential treatment program as directed, and otherwise follow all lawful instructions and directions of The Cottage staff;
· residence by the applicant at The Cottage, with a condition that he not leave the premises unless in the company of a staff member;
· the applicant’s compliance with various requirements while at The Cottage, including that he:
i. undergo such urine drug screens as directed;
ii. receive only such visitors as are approved by The Cottage;
iii. abide by any other rule or requirement of The Cottage.
· the applicant not have a mobile telephone without the permission of The Cottage staff, and if permitted to have a mobile telephone, have no more than one mobile telephone, the number of which is to be supplied to the Informant within 24 hours of obtaining same;
· any mobile telephone service be subscribed in the applicant’s name and with his current address;
· the applicant not use a drug of dependence or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner;
· the applicant surrender any valid passport to the Informant and not apply for or possess any other passport or travel document;
· the applicant not attend any point of international departure;
· the applicant not leave Victoria; and
· the applicant not contact or approach any witness for the prosecution other than the Informant.
Counsel for the applicant submitted that, whilst the applicant has a significant criminal history, that history largely arises from his longstanding issues with drug addiction and the associated lifestyle. In light of that longstanding drug problem, it is important that he has available to him intensive, in-patient residential drug rehabilitation at The Cottage in Shepparton. Further, the applicant is prepared to be monitored by a GPS device from Attenti, which has the ability to notify police if the applicant leaves The Cottage or attends within any area of exclusion ordered by the Court. Counsel submitted that, having regard to a constellation of factors including delay; the availability of residential drug treatment; monitoring by Attenti; a surety; and the impact of the pandemic on custodial conditions; exceptional circumstances justifying a grant of bail have been established. Further, accepting that the seriousness of the allegations and the applicant’s prior criminal history give rise to risks in granting bail, counsel submitted that none of the risks alleged are so grave that they cannot be made acceptable by the stringent conditions of bail proposed.
The respondent’s submissions
The respondent’s counsel realistically acknowledged that the exceptional circumstances threshold has twice previously been found to have been met in the applicant’s case, but took issue with the claim that the delay is ‘inordinate’. In that respect, counsel pointed out that although the applicant had been in custody since 25 February 2021 — some 448 days — by virtue of sentences imposed in June 2021 and January 2022,[34] his detention on the current matters is in reality just under four months.
[34]See [38] and [39] above.
Counsel for the respondent submitted that, assuming that the unacceptable risk threshold is met, the applicant poses an unacceptable risk in all of the ways contemplated by s 4E(1) of the Act.[35]
[35]See [14] above.
With respect to unacceptable risk, the respondent’s counsel submitted that the applicant has a long history of prior offending. Counsel submitted that, even if the Court accepted the proposition that that offending has arisen largely from the applicant’s longstanding drug addiction (and associated lifestyle), it is abundantly clear the applicant has previously been offered assistance for his substance abuse issues through court orders — including CCOs and drug treatment orders — and bail conditions. None of these interventions have, however, been successful. The applicant has also failed to comply with a firearm prohibition order served in September 2018. These matters inform a determination of, first, whether the applicant is likely to engage in the treatment conditions proposed in this application; and, secondly, whether the proposed interventions are likely to operate to reduce the risk posed by the applicant to an acceptable level.
Counsel drew attention to the fact that the applicant’s prior criminal history includes:
· a 12 month CCO imposed on 15 August 2014, which included a drug treatment condition, this order having been contravened;
· a 15 month CCO imposed on 23 February 2015 (in place, it appears, of the CCO above), which also included a drug treatment condition, this order having been contravened (and dealt with on 7 August 2018); and
· a 16 month drug treatment order imposed on 7 August 2018, this order being cancelled on 19 February 2019 (with the result that the applicant was required to serve the unexpired portion of three months’ imprisonment).
The respondent’s counsel submitted further that it is apparent from the applicant’s criminal history, and the extant allegations, that his offending includes, in addition to drug offending, driving, violence and firearm offences, which must inform the Court’s assessment of unacceptable risk.
Counsel for the respondent also drew attention to the applicant’s history of remand, which demonstrates the applicant has amassed a substantial criminal record despite being at freedom for relatively short periods over the past few years. Hence the applicant was:
· first in adult custody on 10 March 2017, and released on 15 March 2017;
· next in custody approximately five months later, on 24 August 2017, being released almost a year later, on 7 August 2018;
· in custody once more approximately five months later, on 1 January 2019, being again released almost a year later, on 22 December 2019; and
· again in custody less than three months later, on 2 March 2020, being released on bail approximately four months later, on 21 July 2020.
As to the distinct risks contemplated by s 4E(1), the respondent’s counsel submitted the applicant is an unacceptable risk of failing to answer bail given that (as the evidence suggests) the applicant has been subject to 31 previous warrants for his arrest — most of which relate to bench warrants on his failure to attend court in answer to bail — and has regularly breached bail, including bail that had a surety condition attached.
Counsel contended that the applicant also poses an unacceptable risk of committing an offence while on bail. As to that, the applicant has a number of prior convictions for committing an indictable offence while on bail, or for contravening a conduct condition of bail. Counsel drew attention to the Scott, Chalmers and McNamara charges referred to above.[36]
[36]See [26]–[31].
So far as endangering the safety and welfare of any person was concerned, the respondent’s counsel relied on the applicant’s prior criminal history — including the exhibited summaries describing his commission of relevant offences — which speaks for itself.
Finally, counsel for the respondent submitted that the applicant’s risk of interfering with witnesses or otherwise obstructing the course of justice is demonstrated by the applicant’s persistent breach of the family violence intervention order protecting AG, which includes contacting her from custody dozens of times over several months.
Discussion
Given the absence of any serious dispute by the respondent, and having regard principally to the anticipated delay in bringing the applicant’s charges to trial, I am prepared to find that the applicant has established the existence of exceptional circumstances that would justify the grant of bail.
Notwithstanding the finding that exceptional circumstances exist, however, I consider that bail must be refused, since the respondent has persuaded me that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety and welfare of persons; commit an offence while on bail; interfere with witnesses; or fail to surrender himself into custody. In reaching the conclusion that the applicant poses an unacceptable risk in these ways, I have taken into account all relevant circumstances, including those found in s 3AAA of the Act.
In my view — and as best one can judge from this distance — the prosecution case appears to be strong. The applicant’s counsel mooted that the legality of the search of AG’s premises will be ‘a significant issue for pre-trial argument’. Without attempting definitively to decide the issue, I can see a compelling argument being made for the lawfulness of the search, not only under the provisions of the Family Violence Protection Act 2008, but also under ss 459 and 459A of the Crimes Act 1958 (and, possibly, under provisions of the Firearms Act 1996, such as ss 112Q and 149).
Further — and self-evidently — should the applicant be convicted of trafficking in a commercial quantity of methylamphetamine, and of the further offences of being a prohibited person in possession of a firearm, it is virtually inevitable that he will be sentenced to a substantial term of imprisonment, far exceeding the time he will spend on remand (even factoring in to that assessment the ameliorating influence on sentence of considerations relating to the COVID-19 pandemic).
Importantly, I consider that there is a very substantial risk that the applicant will commit further offences if released on bail. He has done so multiple times in the past. Indeed, the current offending is alleged to have been committed whilst the applicant was on bail. That demonstrated propensity to breach bail orders bears not only on the risk that he will commit further offences on bail, but also provides one with little optimism that he will surrender himself and answer his bail when required.
Allied to that, I am of the view that there is a palpable risk that the applicant will, if released on bail, endanger the safety and welfare of people in the community. He has demonstrated a disturbing proclivity to possess firearms — more than one Beretta pistol, a handmade handgun, a sawn-off semi-automatic rifle and a sawn-off shotgun — his possession of which cannot have been related to other than nefarious purposes.
Moreover, I consider that there is a substantial risk that if released on bail the applicant will interfere with a witness, if only AG. Hence, the available evidence suggests that, notwithstanding the existence of a family violence intervention order, the applicant has flouted that order by contacting AG, who, it must be recognised, may be an important witness concerning the possession of the Beretta and the drugs in her premises.[37]
[37]See also Bail Act 1977, s 3AAA(1)(f).
In reaching these conclusions, I have not ignored the evidence of Mr Gilhooley as to the regime existing at The Cottage, or that of Mr Schluter concerning the stringency of the monitoring provided by Attenti. Given, however, his history of breaching drug treatment orders and CCOs having therapeutic conditions — and making due allowance for the fact that the program offered by The Cottage is far more intensive than anything that the applicant has been offered in the past — I have no confidence that the applicant would not find the lure of his entrenched lifestyle too attractive to resist, and as a result simply walk away from The Cottage and remove the anticipated monitoring device. As to that, I do not consider that the applicant would be much deterred from absconding by the existence of a surety provided by his grandmother. He has breached bail in the past despite the provision of a surety (albeit of a lesser sum than now proposed).
Conclusion
The application for bail will be refused.
-----
0
6
0