Re Vickers
[2009] VSC 202
•20 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1444 of 2009
IN THE MATTER of an application for bail: KYLIE VICKERS
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2009 | |
DATE OF JUDGMENT: | 20 May 2009 (Ex tempore reasons revised 25 May 2009) | |
CASE MAY BE CITED AS: | Re Vickers | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 202 | |
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CRIMINAL LAW – Bail – Summary prosecution of drug and other offences allegedly committed while on bail – Requirement to show cause why detention not justified – Whether unacceptable risk of further offending – Delay before hearing likely to exceed any sentence of imprisonment – Bail granted on special conditions – Bail Act 1977 ss 4(2), (3) and 4, 17(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Ms S Pillai | Office of Public Prosecutions |
| For the Applicant | Mr D Dann | Grigor Lawyers |
HIS HONOUR:
As the hearing of this application has proceeded, it has become increasingly evident to counsel and to the Court that bail ought to be granted, and I do intend to grant bail. In the circumstances I can state my reasons in an abbreviated way.[1]
[1]For the purposes of s 4(4)(d)(i) of the Bail Act 1977, these reasons should be taken as included in the order granting bail.
The applicant was born 21 May 1976 and is currently on remand held at the Dame Phyllis Frost Centre. She has been in custody since her arrest on 1 April 2009. She is charged with the following offences: trafficking amphetamine, trafficking cannabis, possess amphetamine, possess cannabis, deal with property suspected to be proceeds of crime and possess controlled weapon without an exception. They are the main group of charges she is presently facing.
There are two other sets of matters. The first group involves possession of a small quantity of amphetamine together with two charges of using an unregistered vehicle. Then there is a further set of charges of breach of a community-based order with the prospect that, if breach is shown, the applicant will be re-sentenced on the original charges which led to that particular disposition.
I am informed that the applicant proposes to plead not guilty to the possess small quantity of amphetamine and use unregistered vehicle charges for reasons that have been outlined to me. She intends to plead guilty to the breach of the community-based order charges and therefore will face re-sentencing on the charges relevant to that. She intends to plead not guilty to at least some of the main charges, including, in particular, to trafficking amphetamine.
She denies that the substance that was allegedly found in her home was amphetamine; and there are one or two other bases which have been outlined for contesting the charges. However, for reasons I will come to, the relative strengths and weaknesses of the parties’ cases do not loom as large as they might in other cases. The circumstances of some of the charges are such[2], though, that they fall within s.4(4)(a) of the Bail Act 1977. That provision has the effect that the Court would be required to refuse bail unless the applicant showed cause why her detention in custody was not justified.
[2]Namely, that the offences were allegedly committed whilst the applicant was on bail.
In addition, the Court would be required to refuse bail if satisfied that there were an unacceptable risk, if the applicant were released on bail, that any of the four events specified in s.4(2)(d)(i) would occur, namely that the accused would fail to surrender herself into custody in answer to her bail; or commit an offence whilst on bail; or endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to herself or any other person.
As to unacceptable risk, the Crown relied only on the suggestion that there was an unacceptable risk that the applicant, if released on bail, would commit an offence whilst on bail. It also pointed to the reverse onus in relation to the requirement to show cause. I do not need to deal with the debate in the authorities about whether the relevant provisions give rise to a single step approach or a two step approach. That seems to have been resolved substantially on the basis that there is, in any event, a great deal of overlap between the issues which arise under the respective provisions.[3]
[3]DPP v Harika [2001] VSC 487; Re Asmar [2005] VSC 487; R v Paterson [2006] VSC 268; Re Walker[2007] VSC 129 at [3]; Re El-Azar [2007] VSC 487 at [10]-[12]; Re Dobrosavljevic [2009] VSC 170 at [20].
I have had regard to each of the factors mentioned in s 4(3) of the Bail Act in arriving at the view that bail is appropriately granted in this case.
Some of the matters with which the applicant is charged are indictable matters, but all are being prosecuted summarily in the Magistrates’ Court. The charges of trafficking are no doubt the most serious of them and they are indeed serious matters but, as I say, they are being prosecuted summarily and the Crown has now very fairly conceded that, given the inevitable delay before this matter can be heard and determined in the Magistrates’ Court, it is unlikely that the length of any sentence of immediate imprisonment that might be imposed – even if all charges were found proven – would exceed the period of delay. The delay arises mainly because, as the Crown acknowledges, it presently takes about 6-9 months for the forensic laboratory to process samples of substances alleged to be illegal drugs. (In the present case the relevant samples were only lodged two weeks ago.) Indeed the applicant suggests that the testing delay is even longer than 6-9 months and that there will then be a further wait for a hearing date.
The period during which the applicant would be held in custody pending the hearing as compared with the probable sentence was regarded as a significant matter by Bongiorno J in R v Gray[4] and also by me in Re Walker.[5] Delay generally was also significant for King J in R v Hildebrandt[6].
[4][2008] VSC 4.
[5][2007] VSC 129.
[6][2006] VSC 198.
I accept the thrust of the submissions made by Mr Dann, in his excellent presentation of the applicant’s case to the effect that there are five things in particular that combine to show cause that the applicant’s continued detention in custody is not justified and that any risk of re-offending is reduced to a level beneath the unacceptable.
Summarising those matters, the first is the time that the applicant would be in custody (to which I have already referred) and the fact that the applicant has not previously been in custody for any length of time. One could expect that the applicant’s experience of custody since 1 April 2009 would, or at least might, have a salutary effect in terms of dissuading her from any further offending.
Second, there is the matter of detoxification that was identified in the reports that are contained in the material. The applicant has, during her time in custody, apparently detoxed at least to an extent and, again, that gives cause for at least hoping, perhaps expecting, that there will be less risk of further offending if she is released on bail.
Third, the applicant’s “on and off” partner, Mr Mercieca, about whom the informant holds significant concerns, is now remanded in custody and, to that extent, is removed from potentially exercising the inappropriate influence that the informant believes he has exercised in the past over the applicant. Mr Mercieca is described by the informant - and this was not challenged by the applicant - as a significant drug dealer in the Frankston area. He has not made any application for bail. He was arrested on the same day (1 April) as the applicant and it seems there is no immediate prospect of his being released. On the other hand, as the informant said in his evidence, this matter is a little two-edged. Although Mr Mercieca may be physically removed from the scene, if he is in fact in the business of drug dealing and does have significant influence over the applicant one might fear that he would endeavour, by one means or another, to cause her to carry on the business during the period in which he is unable to do so himself, and that is a matter that I have worried about. However that concern is now met, at least in substantial part, by certain conditions that have been canvassed with counsel and agreed to by the applicant, namely conditions that she have no contact with Mr Mercieca and also no contact with another person who was identified by the informant as potentially an intermediary between herself and Mr Mercieca, namely a Mr Anderson.
Now the fourth thing is the CREDIT bail program conducted by the Magistrates’ Court. I have had explained to me in the material and from the Bar table the nature of that program. It is designed to provide counselling and support and assistance to persons on bail who have committed drug offences or are alleged to have committed drug offences. The applicant has been assessed as suitable for that program, including by way of a recent confirmatory letter from the relevant officer. It is true that the applicant has been through that program before and it did not seem in the end to lead to a diminution of her offending - perhaps quite the reverse - but it nonetheless is a source of some supervision and contact and support and can be expected to at least have some beneficial effect in respect of the applicant’s future conduct, particularly in combination with the fact that she has now experienced relatively lengthy custody for the first time and must know that if she were to fail to comply with the directions of the CREDIT bail program officers she would probably be straight back into custody and there would then be next to no chance of any further grant of bail before these matters were finally heard and determined in the Magistrates Court; and that is altogether apart from what she might incur by way of custody if she were to commit any further offence in the meantime.
Finally, the fifth matter is the set of special conditions which have just been discussed in Court. Omitting certain identificatory details, the proposed conditions are:
1.That she reside at her home address.
2.That she report to the Officer in Charge of the Police Station at Frankston or his nominee between the hours of 9:00 a.m. and 5:00 pm each Monday, Wednesday and Friday.
3.That she not contact prosecution witnesses except the informant.
4.That she not contact Mr Mercieca or Mr Anderson.
5.That she abstain from drug use.
6.That she attend the CREDIT bail program and obey all lawful directions of the CREDIT bail support program.
7.That she forthwith surrender to the informant any passports which she may hold and not apply for another passport.
8.That she not attend any point of international departure.
9.That she not leave the State of Victoria except for the purpose of contacting her son and then only after giving not less than 24 hours notice to the Officer in Charge of the Police Station at Frankston of the time of her departure and of the intended time of her return to her residence.
Those special conditions seem to meet the purpose of seeking to reduce the risk of re-offending to a level below the unacceptable. The conditions will be set out in the order in due course.
The only other authority I would mention in passing is the decision of Eames, J in DPP v Ghiller[7], in particular a passage that was picked up and referred to with approval by the President in Re Asmar.[8] Eames J said[9]:
“Even when an applicant for bail must show cause, that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail, the primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail. A bail application is not concerned with determining the issues which the jury must decide nor is it concerned with punishing a person in advance of that adjudication by a jury.”
I have taken into account that salutary reminder.
[7][2000] VSC 435.
[8][2005] VSC 487 at [15] and [25].
[9][2000] VASC 435 at [43].
It seems to me that, in all of the circumstances, and given the very fair and proper way in which the informant assisted the Court in relation to his concerns about the matter and his obvious view that there is at least a basis for hope that if bail were granted an improvement in the applicant’s attitude to the law might take place, and given the very fair submissions from the Crown in relation to the period that might be imposed by way of any immediate custodial sentence, and the absence of any vigorous general opposition by the Crown in the light of the material that was progressively put forward on behalf of the applicant, it seems to me that this is an appropriate case in which bail should be granted, subject to the conditions to which I have referred.
For the purposes of s 17(1) of the Bail Act, the applicant’s counsel has conferred specifically with the applicant about the proposed special conditions. He assures me, and I am satisfied, that the applicant understands the nature and extent of the conditions of her bail and the consequences of failure to comply with them.
Bail is granted accordingly.
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