Re Stratton
[2021] VSC 415
•8 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0155
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by Glenn STRATTON |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 July 2021 |
DATE OF JUDGMENT: | 8 July 2021 |
CASE MAY BE CITED AS: | Re Stratton |
MEDIUM NEUTRAL CITATION: | [2021] VSC 415 |
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CRIMINAL LAW – Application for bail – Charge of murder – Fatal gunshot wound to head – Deceased was applicant’s father – Deceased terminally ill – Advanced Care Directive signed by deceased – Deceased sought avenues for voluntary assisted dying – Applicant must demonstrate exceptional circumstances justifying grant of bail – Limited prior criminal history – Exceptional circumstances satisfied – Unacceptable risk not found – Bail Act 1977 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gardner | Lakey Legal |
| For the Respondent | Ms H Baxter | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Glenn Stratton (‘the applicant’) was charged on 24 May 2021 with murder arising from the death of his father, Colin Stratton (‘the deceased’), on the same date by gunshot wound to the head.
By notice filed on 17 June 2021, the applicant applies for bail in this court, having not previously made an application for bail.[1] He has been on remand since 24 May 2021. This is his first time in custody.
[1]Section 13(2) of the Bail Act 1977 (‘the Act’) provides that only the Supreme Court, or a court on committing the person for trial, may grant bail to a person accused of murder.
Murder is a Schedule 1 offence within the meaning of the Bail Act 1977 (‘the Act’), and as such, the applicant must be refused bail unless he satisfies the court that exceptional circumstances exist that justify the grant of bail.[2]
[2]The Act ss 4AA(1), 4A(1A), 4A(2).
The matter is next listed on 13 October 2021 at the Bendigo Magistrates’ Court for committal mention.
The alleged offending
The deceased was 81 years of age at the time of his death. The applicant resided with the deceased in Castlemaine, together with other extended family members. The deceased was diagnosed with bowel cancer in October 2019 and had undergone medical treatment, the disease was aggressive, and by the date of his death was regarded as terminal. In the weeks leading up to his death, the deceased’s health had been declining and he was experiencing increased pain.
The deceased had signed an Advanced Care Directive in the presence of a medical practitioner, indicating that he wanted to be able to die on his own terms, and did not want any palliative care. The deceased’s family were aware of his intentions.
On 24 May 2021 at around 8:50am, the deceased attended an appointment with a local doctor for the purpose of requesting what he described as the ‘pill’ to be used for voluntary euthanasia. He indicated an intention to use the ‘pill’ that day. The doctor advised the deceased that she could not prescribe this medication. The deceased was insistent about wanting to end his life on that day, citing that his ‘body has given up’. It appears that the necessary formal process associated with the assisted dying scheme had not yet been entered into by the deceased at the date of his death.
The deceased told the doctor if she could not assist in what he was requesting, that he would go home and shoot himself in the head. The doctor then called the applicant, who drove with his sister to the medical clinic and met with the doctor and the deceased, during which they attempted to make a plan in relation to assisted dying, however the deceased walked out of the clinic, saying that he was ‘sick of talking’.
The applicant followed and drove the deceased home. On the way, the applicant tried to convince the deceased not to commit suicide, however the deceased could not be persuaded otherwise, saying ‘Let’s do this … it’s happening today, I’ve had enough’.
Upon arriving at home, the deceased sat in his favourite chair on the back veranda in the shade and instructed the applicant to get a .22 calibre full-length rifle from the shed and load it, which the applicant did. There was a round sitting on the nearby bench, where the deceased told the applicant it would be. The applicant pleaded with the deceased not to follow through, to which the deceased replied, ‘I need your help, I can’t do this by myself’.
It is alleged that the deceased picked up the rifle and pointed it to his own head, but could not reach the trigger. The deceased then put the butt of the rifle into the applicant’s hand, while he held the barrel to his own forehead, and started counting down. The applicant told the deceased he loved him, with the deceased responding, ‘likewise’. When the deceased reached the count of one, he closed his eyes, and the applicant allegedly pulled the trigger, discharging a single round into the deceased’s forehead.
The applicant then hugged the deceased, called emergency services, telling the operator that he had just witnessed his father commit suicide. The police attended the scene. The applicant told the police that ‘he must have pulled the trigger’, at which point he was arrested. In his interview with the Homicide Squad, the applicant said that his father was in a lot of pain, and that he was begging him to help him with his final wish, and that he wanted to die. The applicant also noted that the deceased had asked for help to end his life earlier in the day at the medical clinic and is alleged to have admitted to shooting the deceased, believing that he did not have any other way of helping the deceased.
A post-mortem examination confirmed the deceased’s cause of death to be a gunshot wound to the head.
The applicant
The applicant is 53 years of age and was born in Castlemaine. He has six children, two of whom reside in Bendigo. The applicant also has two siblings, an older sister in Castlemaine and a younger brother in New South Wales. The applicant’s mother became ill in 2009 following a severe stroke and passed away in 2017. The applicant’s family are aware of the circumstances of this matter, and remain very supportive of the applicant and this bail application.
The applicant is self-employed and performs painting and building services in the local community. He is diagnosed with coeliac disease and hemochromatosis. Both conditions are stable and no immediate treatment is required for either of them.
The applicant has the following criminal history:
(a) in 1985, he was found guilty of wilful damage, which was adjourned subject to a good behaviour bond; and
(b) in 1987, he was found guilty of theft from a motor car, deception and attempted theft by deception, for which he received a fine.
The applicable legislation
Guiding principles
When applying and interpreting the Act, the court is required to take into account the guiding principles set out in s 1B(1) of the Act.[3] This includes, amongst other things, maximising community safety to the greatest extent possible and taking into account the presumption of innocence and right to liberty.[4]
[3]The Act, s 1B(2).
[4]The Act, s 1B(1)(a) and (b).
First step — exceptional circumstances
The applicant is required to demonstrate exceptional circumstances justifying the grant of bail under s 4AA(1) of the Bail Act 1977 (‘the Act’), as he is accused of murder which is a Schedule 1 offence.
It follows that bail must be refused unless the court is satisfied that exceptional circumstances exist that justify the grant of bail.[5] In considering whether exceptional circumstances exist, the court must take into account the surrounding circumstances, including, but not limited to, those in s 3AAA(1) of the Act.[6]
[5]The Act ss 4A(1A) and (2).
[6]The Act s 4A(3).
Meaning of exceptional circumstances
While the phrase ‘exceptional circumstances’ is not defined in the Act, it has long been established that, in order to reach this threshold, the aggregate nature of the matters relied upon by the applicant must take the case out of the ordinary so as to justify admission to bail.[7] As was recently observed by the Court of Appeal in Roberts v The Queen,[8] justification is to be at the heart of a court’s consideration as to whether this test has been satisfied:
The concept of justification is, accordingly, central to the consideration required of the bail decision maker when the ‘exceptional circumstances’ test is engaged. The language of s 4A(1A) is unambiguous: the bail decision maker is prohibited from granting bail unless the applicant can point to circumstances which are exceptional in character and which justify — that is, provide justification for — releasing the person on bail.[9]
[7]See for example Re KE [2021] VSC 175 [50] (Kaye JA); Re Sam [2017] VSC 91 [22] (Beach JA); DPP v Muhaidat [2004] VSC 17 [13] (Kaye J, as he then was).
[8][2021] VSCA 28 (Maxwell P, Niall and Emerton JJA).
[9]Ibid [35].
Their Honour’s stated further:
What appears to underpin the judicial recognition of … different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending ...
It is the perceived need to avert or mitigate such injustice which justifies the grant of bail — provided always that the circumstances can properly be characterised as exceptional ...[10]
[10]Ibid [47]-[48].
In his affidavit in response, the respondent accepts that it would be open to the court to find that exceptional circumstances exist that justify the grant of bail in this matter. In a case of murder that is a significant concession.
Second step — unacceptable risk
If satisfied that exceptional circumstances exist, the court must apply the unacceptable risk test.[11] Bail must be refused if satisfied that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable one.[12]
[11]The Act s 4D(1)(a).
[12]The Act s 4E.
In applying this test, the court must again 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 unacceptable.[13]
[13]The Act s 4E(3).
The respondent does not allege that there is any unacceptable risk posed by the applicant in this matter.
As the alleged offending involves a family violence offence, the court is also required to consider whether, if the applicant was released on bail, there would be risk that he would commit family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a family violence intervention order.[14] There is currently no family violence intervention order, family violence safety notice, or recognised domestic violence order made against the respondent. The respondent’s material does not allege any risk of the applicant committing family violence if he is granted bail.
[14]The Act s 5AAAA(2).
No evidence was called at the hearing of this application, with the matter proceeding on the basis of the filed material, supplemented by oral submissions.
The applicant’s contentions
Limited criminal history and first time in custody
It is submitted that the applicant has a very limited criminal history from when he was aged between 17 and 19. He has never been sentenced to anything beyond a modest fine and successfully completed his undertaking of good behaviour. The applicant has never appeared before the courts for any act of violence. In all the circumstances the applicant’s prior matters should be regarded as having little, if any, relevance to the outcome of this application.
As above, the current period on remand represents the applicant’s first time in custody.
Nature of the alleged offending and strength of the prosecution case
The offence of murder is extremely serious, however, it is submitted that the alleged offending is not a serious example of that offence.
The applicant does not submit that the prosecution case is weak, however submits that it is not fanciful to rule out the possibility of a full acquittal or a verdict of manslaughter, relying on the following observations:
(a) there were no eyewitnesses to the discharge of the firearm, or to who (if anyone) pulled the trigger;
(b) the current state or strength of any forensic evidence. There is as yet no evidence of DNA or fingerprints that advances the case against the applicant;
(c) the applicant initially asserted that the deceased committed suicide;
(d) the prosecution case relies heavily on the applicant’s alleged confession. The admissibility of that evidence may be open to challenge, or in any event, a jury would need to be satisfied that the confession was truthful and reliable;
(e) a jury would need to be satisfied beyond reasonable doubt that the discharge of the firearm was a voluntary, conscious and deliberate act, and rule out the possibility of an accidental discharge;
(f) a jury may be favourably disposed to the applicant given the objective facts of the case. There is a live possibility of the jury exercising its merciful discretion in accordance with s 421 of the Crimes Act 1958 and the common law in Gammage v R (1969) 122 CLR 444 and Packett v R (1937) 58 CLR 190.
Accommodation
The applicant proposes to be bailed to reside at 19 Wimble Street, Castlemaine, where he lived prior to his arrest and has done since 2015. The court was informed that the house was owned by the deceased.
Delay and likely sentence
The applicant relies on potential delay to trial, having regard to the impact of the pandemic on the criminal justice system. The applicant was remanded in custody on 24 May 2021 and the matter is next listed on 13 October 2021 for committal mention. It is submitted that the subsequent committal and pre-trial process may result in a delay of between 18 months and two years before this matter reaches its conclusion.
While an acquittal cannot be ruled out, the imposition of a sentence should the applicant be found guilty of an offence arising from the alleged conduct is likely to provoke mercy having regard to the circumstances of this case. This is submitted to be a relevant consideration militating in favour of bail.
The applicant accepts that, if he is found guilty of murder, he could not argue that his time on remand would outweigh any sentence of immediate imprisonment.
However, it is submitted that a non-custodial disposition could not be ruled out if the applicant were found guilty of manslaughter,[15] in which case, any time on remand may exceed the time required to be served.
[15]In sentencing an offender for manslaughter (which is a category 2 offence), a court must make a custodial order unless, among other reasons that do not appear applicable to this case, there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order: see ss 5(2H)(e), 5(2HC) and 5(2I) of the Sentencing Act 1991.
Lack of unacceptable risk
The applicant relies on the lack of alleged unacceptable risk as a matter going to exceptional circumstances.[16]
[16]Re Gloury-Hyde [2018] VSC 393 [30] (Priest JA). See also Re Charlton [2021] VSC 342 [69] (Tinney J); Re KE [2021] VSC 175 [53] (Kaye JA); Re Cugurno-Pfabe [2020] VSC 687 [54] (Taylor J). Cf Roberts v The Queen [2021] VSCA 28 [62] (Maxwell P, Niall and Emerton JJA).
It is submitted that the applicant does not represent an unacceptable risk in all the circumstances.
The respondent’s contentions
The respondent accepts that, while it is a matter for the court, it would be open to find that exceptional circumstances exist that justify the grant of bail.
Further, the respondent does not allege that there is any unacceptable risk posed by the applicant in this matter.
In response to the affidavit in support filed on behalf of the applicant, the informant notes:
(a) the rifle and other exhibits seized from the deceased’s residence are undergoing forensic examination by the ballistics unit;
(b) it is not expected that there will be considerable delay arising from forensic examinations in this case due to the limited examination of exhibits; and
(c) while it is not asserted that the applicant presents a significant flight risk, he does have some ties to other jurisdictions with four of his children residing in various states across the country and a brother in New South Wales.
The respondent proposes the following bail conditions:
(a) Reside at 19 Wimble Street, Castlemaine, Victoria;
(b) Surrender his passport and not attend any points of international departure; and,
(c) That he report each Wednesday to the Castlemaine Police Station.
Analysis and conclusions
Having considered the written submissions and evidence placed before the Court, I am satisfied that the applicant has met the exceptional circumstances test required, should bail be granted on a charge of murder. The respondent has conceded that whilst the satisfaction of this test is clearly a matter for the Court, this state of satisfaction is open to be made.
Further, as to the necessary consideration of the unacceptable risk — a matter to be established by the respondent — again, it is conceded that the applicant does not amount to an unacceptable risk in all the circumstances that pertain to this case and those that pertain to him.
Whilst the prosecution case cannot be said to be weak, I am satisfied on the state of the evidence currently before the Court that arguments are capable of being advanced on behalf of the applicant at committal or trial that might result in an acquittal, or acquittals, being delivered by a jury, should the matter eventually proceed to trial. It is of some significance that it is not suggested that the applicant had a financial motive for being involved in the death of his father.
There is also the possibility that depending on what view of the evidence is taken by the Director, and what the evidence is capable of establishing, that a lesser charge may be preferred. All this means there is water yet to flow under the bridge.
I am also satisfied that in all the prevailing circumstances there is likely to be a considerable delay before this matter is resolved. As to the seriousness of the allegations, it is important to observe that all cases of murder are to be regarded as serious in their nature; however, there are within that broad description, levels of aggravation and mitigation, meaning that all cases are not the same, and some cases can be treated as having been committed in circumstances of significant aggravation and significant extenuation. These factors can determine outcomes. Depending on the way the evidence falls, the present case may find itself in the latter category and affect the way in which this matter be considered.
I have also taken into account the COVID-19 related submissions that were made before me. In all the circumstances I am satisfied that the facts and circumstances when considered together in combination amount to exceptional circumstances being established for the purposes of this application. Further, and in the absence of argument to the contrary, I am satisfied that the respondent has not established the applicant represents an unacceptable risk, as set out in the Act.
Taking into account all circumstances I am satisfied that bail should be granted to the applicant on the following conditions:
(a) He attend the Bendigo Magistrates’ Court on 13 October 2021 for committal mention and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) Reside at 19 Wimble Street, Castlemaine, Victoria and not change that address without the leave of the Court.
(c) He not leave the state of Victoria.
(d) He report each Wednesday to the Officer in Charge at the Castlemaine Police Station in Castlemaine, or his or her nominee, between the hours of 9am and 5pm beginning Wednesday 14 July 2021.
(e) He surrender his passport within 24 hours to the informant via the Officer in Charge at the Bendigo Police Station and not apply for another.
(f) He not attend any points of international departure.
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