Re VM
[2021] VSC 874
•23 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0288
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an application for bail by VM |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 December 2021 |
DATE OF JUDGMENT: | 23 December 2021 |
DATE OF REVISED REASONS: | 1 February 2022 |
CASE MAY BE CITED AS: | Re VM |
MEDIUM NEUTRAL CITATION: | [2021] VSC 874 |
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CRIMINAL LAW — Application for bail — Charges of attempted murder, false imprisonment, reckless conduct endangering life, making a threat to kill, using carriage service to menace and other violent offending — Family violence offending — Strength of the prosecution case — Delay — Proposed bail address — First time in custody for a prolonged period — Onerous custodial conditions due to COVID-19 pandemic — Support of Court Integrated Services Program — Exceptional circumstances not established — Bail refused — Bail Act 1977 (Vic) ss 1B, 3AAA, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr John Desmond | Emma Turnbull Lawyers |
| For the Respondent | Ms Angela Moran | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by VM (‘the applicant’). He faces the following 18 charges brought by Senior Constable Vanessa Howell (‘the informant’) which are the subject of the present application:
(a) attempted murder;
(b) making a threat to kill;
(c) using a carriage service to menace;
(d) aggravated burglary;
(e) intentionally causing serious injury;
(f) recklessly causing serious injury;
(g) intentionally causing injury;
(h) recklessly causing injury (two counts);
(i) common assault (two counts);
(j) false imprisonment;
(k) reckless conduct endangering life;
(l) criminal damage (two counts);
(m) unlawful assault (two counts); and
(n) aggravated assault.
The applicant has been remanded in custody since his arrest on 6 February 2021. He was refused bail in the Melbourne Magistrates’ Court on 7 February 2021 on the basis that he failed to show a compelling reason that justified the grant of bail and because he was considered to pose an unacceptable risk within the meaning of the Bail Act 1977 (Vic) (‘the Act’).[1]
[1]The ‘compelling reason’ test was applicable at the time of the bail application on 7 February 2021 as the charge of attempted murder was not filed until 16 June 2021.
By application filed on 18 November 2021, the applicant seeks a grant of bail in this Court.
The applicant was committed to stand trial in this Court on 22 October 2021. The matter is next listed for a further directions hearing before Judicial Registrar Tueno on 24 February 2022.
The alleged offending
The applicant and IE were in a relationship for approximately four years, which came to an end in January 2021. IE ended the relationship with the applicant because of his behaviour towards her, which she reports was controlling and abusive. After their relationship ended, IE moved into the Tullamarine home of a friend, Dimitrios Zervas, who it appears also became a victim of the applicant’s conduct.
Incident on 5 February 2021
It is alleged that on 5 February 2021, the applicant sent a number of text messages to IE in an attempt to reconcile with her. When IE refused, the applicant’s messages became threatening. He continued to send IE messages and called her multiple times asking her to return to him. She told him she needed time to think about it and the applicant responded via text, ‘fine, I’ll let you go’.
Later that evening, it is alleged that IE was taking the rubbish out at Mr Zervas’ home when she heard the screeching tyres of the applicant’s car in the driveway. He exited the vehicle and headed towards IE, causing her to run to the back door of the house in fear. IE made it inside, however, the applicant managed to force his way in behind her before she could close the door. Whether or not he entered the premises is very much in contention and not the subject of direct evidence apart from IE and, to a degree, Mr Zervas.
It is then alleged that Mr Zervas overheard IE’s screams and attempted to remove the applicant from his house but was overpowered by him. The applicant allegedly proceeded to punch Mr Zervas to the head multiple times whilst stating, ‘I know you’re fucking her’. IE tried to intervene, but the applicant hit her, causing her to fall to the floor. The applicant allegedly then kicked IE to the face, forcing her head to hit the tiled floor.
Mr Zervas tried again to prevent the assault by grabbing the applicant’s arm. In response, the applicant punched Mr Zervas to the face multiples time before dragging him outside where he continued to strike him. A neighbour, Anthony Scarano, witnessed the assault and overheard the applicant yell to IE, ‘look what you made me do’. Mr Scarano immediately called ‘000’.
During a break in the assault, Mr Zervas managed to get to his feet and re-entered his home. Although the applicant attempted again to make his way inside, IE and Mr Zervas managed to lock the back door. The applicant demanded the hard drive for the CCTV system at the address, however, IE and Mr Zervas stated that no recording of the incident existed. The applicant then left in his car.
Police arrived a short time later and Mr Zervas was taken to the Royal Melbourne Hospital for treatment of his injuries, which included a fractured jaw requiring three surgical procedures and a depressed nasal cavity. Police seized the CCTV hard drive from Mr Zervas’ home which captured footage of the applicant assaulting him but does not record the applicant entering the premises.
After leaving Mr Zervas’ home, the applicant attended the house of an ex-partner, complaining of a sore hand. He stayed at her home, and at 1:54am the following morning, asked her to call an ambulance as his pain was not being managed by medication. He was taken to the Northern Hospital in Epping and was admitted to the short stay unit where he was treated for a fracture to his right wrist and soft tissue swelling to his right hand. The applicant was arrested at the Epping Hospital later that morning. He provided a ‘no comment’ record of interview and was charged with offences related to the earlier incident and remanded in custody.
On 7 February 2021, a final family violence intervention order (‘FVIO’) was imposed against the applicant in the Melbourne Magistrates’ Court naming IE as the protected person. The FVIO contains full ‘no contact’ conditions and expires on 6 February 2023.
Earlier incidents
On 6 February 2021, IE provided a statement to police in which she detailed an incident at the applicant’s Westmeadows home in September 2019, a significant period of time earlier, when he allegedly approached her from behind and tied a rope tightly around her arms so as to restrict her movement. It is alleged that he stated, ‘better I do it than they do it’, before pushing IE onto his bed and placing a hand around her neck, squeezing it. IE struggled to breathe as the applicant slapped her with his other hand to prevent her from screaming. He allegedly stated, ‘you’re not telling me the truth, goodnight [redacted], you’re going to sleep, I’m so sorry’, and then proceeded to place a pillow over her face, pushing down hard so that she again struggled to breathe. He then took the pillow away and said, ‘they can deal with you, now get the fuck out of my house’. IE then fled the applicant’s home.
Mr Zervas states that he came across IE whilst she was running from the applicant’s address. He picked her up in his car and she told him that the applicant had attempted to strangle her. Mr Zervas states that he observed red marks on her neck. He offered to take her to the police station, but she declined out of fear of retribution from the applicant. There are said to have been photographs of the injuries sustained by IE in this incident but they have not been made available to police.
On 16 March 2021, IE provided another statement in which she detailed further incidents in 2020 when the applicant set her clothing on fire and damaged her car with an axe. Mr Zervas provided two statements on 28 May and 1 June 2021 corroborating IE’s account of these incidents.
On 16 June 2021, the applicant was charged with further offences related to these earlier incidents, including a charge of attempted murder related to the applicant’s alleged attempt to suffocate IE in September 2019.
The applicable legislation
In determining an application for bail, the Court is required to have regard to the guiding principles set out in s 1B(1) of the Act.[2]
[2]Bail Act 1977 (Vic), s 1B(2).
As the applicant is accused of committing a Schedule 1 offence within the meaning of s 3 of the Act, namely, attempted murder,[3] bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail.[4] This is a case where the charge of attempted murder is under attack and, but for that charge, the applicant would have a lesser standard to reach.
[3]Ibid, schedule 1, items 2 and 12.
[4]Ibid, ss 4AA(1), 4A(1A) and 4A(2).
In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in s 3AAA(1) of the Act.[5]
[5]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’.[6] Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.[7] In considering whether any relevant risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[8]
[6]Ibid s 4D(1)(a).
[7]Ibid s 4E(2).
[8]Ibid s 4E(3).
Finally, as the allegations against the applicant involve family violence offences, s 5AAAA(2) of the Act requires the Court to consider whether, if the applicant were released on bail, there would be a 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 FVIO.
As I have previously said, a final FVIO is currently in place to protect IE which expires on 6 February 2023.
The applicant’s personal circumstances
The applicant is 50 years old. He has an adult daughter, aged 31, and twin sons, aged 15. The applicant’s daughter gave evidence on the hearing of this application, a matter to which I will return later in these reasons.
The applicant reports that, prior to his remand, he was regularly employed as a handyman and in construction, and lived at a Westmeadows property with his daughter, her partner, and their two children. He proposes to return to that address if granted bail.
Criminal history
The applicant has a criminal history commencing in 1988, which includes findings of guilt for unlawful assault in 2013, intentionally causing injury and criminal damage in 1991, and possessing methylamphetamine, committing an indictable offence whilst on bail, possessing a controlled weapon in 2019 and several dishonesty offences. He was subject to an adjourned undertaking to be of good behaviour for the 2019 matters at the time some of the offences are alleged to have been committed in the present matter.
The applicant’s contentions
Mr Desmond of counsel on behalf of the applicant relied on the following matters, in combination, to demonstrate exceptional circumstances that justify the grant of bail.
Seriousness of the alleged offending
It was conceded that the alleged offending is serious.
Strength of the prosecution case
Mr Desmond submitted that there are prospects of acquittal on the most serious charges in this matter. In particular, he submitted that the charge of attempted murder is exclusively reliant upon the allegations of IE, with no other eye witnesses to that alleged incident. Further, the charge of aggravated burglary is factually disputed. While there is CCTV footage depicting some of the events that are said to have occurred on 5 February 2021, it was submitted that the footage itself only captures the applicant landing a single punch on one of the complainants.
It was submitted that any determination of guilt in this matter will ultimately turn upon a jury’s analysis of the credibility and narrative of the primary witnesses which the applicant intends to challenge at trial.
Criminal history and compliance with earlier grants of bail
While conceding that the applicant’s criminal history is relevant to the present application, it was submitted on his behalf that at the age of 50, it is relatively limited, with time between instances of offending. It was further submitted that the applicant has not accrued a history that shows him to be incapable of complying with court orders. It was however conceded that the applicant has one prior finding of guilt for committing an indictable offence whilst on bail from 2019, and that several of the present charges are alleged to have been committed while he was subject to an adjourned undertaking entered in the Broadmeadows Magistrates’ Court on 31 October 2019.
Stable accommodation
If granted bail, the applicant has access to stable accommodation at [redacted] in Westmeadows. The property is owned by his mother. It was proposed that the applicant would live at this property with his daughter, who gave an undertaking to the Court at the hearing of this application to report to the police any instances of the applicant breaching bail. I shall return to this matter later in these reasons.
Availability of treatment or bail support services
Bail supervision and support services offered through the Court Integrated Services Program (‘CISP’) are available to the applicant. A CISP report was filed with the Court in which the applicant was recommended for community referral. The applicant has not previously been assessed for his suitability to engage with that program.
Delay
As I said, the applicant has been remanded in custody since 6 February 2021. While it was not submitted that there has been delay beyond what can usually be expected for cases of this kind, it was argued that his matter will likely not proceed to trial until late 2022, and potentially 2023, equating to a delay of 18 months to two years from arrest to trial.
Likely sentence
Mr Desmond conceded that the applicant faces a significant term of imprisonment if he is ultimately found guilty of the charged offences.
COVID-19 and onerous conditions in custody
The applicant is currently remanded in custody at Marngoneet Correctional Centre. Although his movements within the prison are not impacted to a great degree by COVID-19 related restrictions, he has not been able to access personal visits for the entirety of his time there, meaning that he has been isolated from his family. His current time on remand is the only substantial period he has spent in custody aside from approximately one month spent on remand when he was 20 years old. It was submitted that the applicant’s extended experience of remand will prove salutary and motivate him to comply with any conditions of bail that may be imposed.
Unacceptable risk
Mr Desmond submitted that conditions of bail could be imposed to ameliorate any risk that exists in this case to an acceptable level. Proposed conditions of bail included a fixed residence, curfew, reporting, possessing only one mobile phone (with its details to be provided to the informant), remaining within Victoria, complying with all directions from CISP, and prohibiting contact with prosecution witnesses.
The respondent’s contentions
Ms Moran of counsel on behalf of the respondent opposed the application on the basis that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail. Bail was also opposed on the basis of the applicant posing an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail, or interfering with a witness or otherwise obstructing the course of justice.
In response to the applicant’s contentions, the respondent relied on a report prepared by the informant for the purposes of this application.
Strength of the prosecution case
The respondent disputed the applicant’s identification of potential weaknesses in the prosecution case. In particular, it was noted that the applicant sent threatening text messages to IE on 5 February 2021, that his presence at the scene of Mr Zervas’ home later that day is not in dispute, with an independent witness to the incident, namely, Mr Scarano, and CCTV footage captures some of the events. It was further submitted that the applicant’s hand injury is consistent with the extensive facial injuries suffered by Mr Zervas, and that photographs taken at his address after the incident show signs of an assault having taken place. Finally, it was contended that Mr Zervas witnessed the applicant setting fire to IE’s clothing in summer 2020, and was apprised of the details of the applicant’s alleged attempt to suffocate her immediately after that incident.
Ms Moran did concede the prosecution case for the attempted murder charge is less strong than the case for the other charges.
Criminal history and reported family violence
The informant in her report provides further detail of the applicant’s criminal history and a number of incidents of family violence reportedly perpetrated by the applicant against several of his former partners. Some of these incidents are alleged to have involved physical violence, including an incident in 2013 which resulted in a finding of guilt for unlawful assault after the applicant strangled his ex-wife and threatened her with kitchen knives. These incidents have resulted in the imposition of a number of FVIOs against the applicant.
Stable accommodation
The informant, who gave evidence on this application, raised concerns with the applicant’s proposal to return to live at [redacted] in Westmeadows. The informant stated in her report that the applicant’s daughter has disclosed to her partner previous instances of family violence perpetrated by the applicant, and stated that the applicant’s daughter only came to live at the [redacted] address after the applicant’s remand. The informant further contended in her report that the house was in disarray before the applicant’s daughter began residing there, and that it has taken her a number of months to make the property liveable. In her evidence on the hearing of this application, the informant said she did not believe the applicant’s daughter would report any breaches of bail to the police despite the undertaking she gave to do so.
The informant is concerned that the applicant’s daughter may be unable to refuse his wish to reside at the house out of fear of both him and the potential that she may become homeless. Finally, noting the current allegations and the applicant’s history of family violence, the informant holds concerns for the welfare of the applicant’s daughter’s two young children who also live at the address.
View of the complainants
IE is said to be extremely fearful that the applicant may be granted bail and firmly believes that he will find her and carry out his previous threats in retribution for her reporting these matters to the police. In these circumstances, IE feels that she would have no choice but to go into hiding if the applicant is released on bail, isolating her from family and further affecting her mental health. At present, IE is the sole carer to her mother who has recently received a kidney transplant. She reports that the prospect of having to leave her mother out of fear for her safety is ‘incomprehensible’.
The informant reports that Mr Zervas expresses similar concerns that the applicant may seek retribution against him if granted bail. He states that his life has been forever changed by the applicant’s assault on him, with his injuries causing him ongoing pain. Mr Zervas has lost considerable weight since the assault and reports difficulty sleeping. He has spent the last few months attempting to fortify his home out of fear of the applicant’s potential release.
Availability of treatment or bail support services
It was submitted on behalf of the respondent that the supports offered by CISP will not sufficiently mitigate the risk that the applicant poses to the community generally, and in particular, to the complainants in this matter. It was noted that the applicant was required under court order to engage with Banksia Gardens in 2019, however, that assistance failed to deter him from further offending.
Delay
While it was not submitted that delay is irrelevant to this application, it was submitted that a delay of 18 months to two years between arrest and trial is not unreasonable when regard is had to the charges that the applicant faces.
Employment
The informant in her report challenged the applicant’s assertion regarding his employment history. It was submitted that the applicant’s claims of previous employment are inconsistent with his having failed to pay any child support to his former partner for a period of eight years because he was earning under the threshold of $19,000 per annum and in receipt of Centrelink benefits. IE further states that the applicant was unemployed during their relationship.
Unacceptable risk
Endangering the safety and welfare of any person
It was submitted by the respondent that the applicant poses a significant risk of seeking retribution against both complainants in this matter. It was submitted that his risk of endangering others is further demonstrated by his prior history of violent and family violence-related offending, which was said to be escalating. Further, the respondent contended that the applicant’s use of methylamphetamine makes his behaviour unpredictable and a threat to the community generally.
Committing an offence whilst on bail
The applicant was said to be a risk of committing an offence whilst on bail on the basis of his prior finding of guilt for committing an indictable offence whilst on bail in 2019.
Interfering with a witness or otherwise obstructing the course of justice
The informant in her report notes concerns that the applicant will attempt to contact IE and refers to previous text messages in which the applicant threatened IE not to contact the police about his behaviour. The informant also expresses concern that the applicant may attempt to contact witnesses in this matter and may use intimidation tactics to favour his case.
Analysis and conclusion
As to whether the applicant has established exceptional circumstances, the applicant’s submissions about the strength of the prosecution case have some merit and Ms Moran, for the respondent, seemed to accept there were issues about the charge of attempted murder. That charge does seem dependent on the allegations of IE and given her evidence as tested at the committal hearing there are questions about it.
Another of the serious charges, the allegation of aggravated burglary, is also factually disputed. Whilst it may be true that issues with the prosecution case can be robustly raised in the trial of the matter I do not conclude that the more serious charges will necessarily result in acquittals.
The criticisms of the case made by Mr Desmond on behalf of the applicant include the timing of the making of the statements of the complainant and various inconsistencies in her account. He also referred me by way of example to the following passage from the evidence of IE at the committal concerning what actually occurred and whether the applicant went into the premises:
You told the police, going back to your statement, that you saw him get out of the car, and you tried to shut the door as you're walking back from taking the rubbish out, but you couldn't shut the door because my client had wedged himself between the door and the doorway, that's just rubbish, is effectively, the video from what we can see and what we can infer proves; do you agree?---I have to agree, yes.
Why did you make up a false account at one in the morning or thereabouts when you're signing this statement to the police?---I - I didn't make a false statement, I believe that just the timing was obviously not as it played out.
She went on to say she saw the applicant punch Mr Zervas. On the topic of where events were occurring and whether the applicant was in the house, Mr Zervas himself in his evidence said:
Can you remember giving that evidence to Mr Desmond saying that one of your memories from outside the house is that you went blank?---That's right, after he hit me when I fell down, I can't remember ah, how long I was there.
All right. What is the next thing you do remember?---I remember I can hear screaming and for some - ah, I don't know how long after I got up and I went inside because of the screaming and I saw ah, [IE] was on the floor halfway inside on the toilet and he (the applicant) was on - on top of her and I tried to pull his arm from - his arm tried to pull him up and he gets up again and he hits me again. (p 581) And then I went - I went black again. I don't know what happened after that.
In my view, whatever the difficulties are that might attend to the prosecution of a charge of attempted murder, there remains a case to be argued on the charge of aggravated burglary and the other serious injury charges.
Another matter relied upon was what was described as the proposed stable accommodation at [redacted]. In support of that aspect the applicant’s daughter gave evidence. It is enough to say she was a singularly unimpressive witness and someone who I consider to have been less than candid. To the extent that reliance is placed on her willingness to report breaches by her father of any conditions of bail if he were so released, I have no confidence whatsoever that that would occur.
The reliance on the Court Integrated Services Program (‘CISP’) likewise is not of much assistance. That program does not arrange any real supervision of the applicant and he is expected to make his own arrangements to seek assistance from the professionals to whom they refer.
As I said, the applicant has been remanded in custody since 6 February 2021 and awaits trial in this Court. It does not seem to me that there will be a substantial delay in his trial being heard, though I acknowledge that is said the current context of a delay of 18 months or thereabouts between charge and trial, which is still of some consequence. If the applicant is ultimately found guilty of the charged offences he will be liable to a substantial sentence of imprisonment which would exceed that remand period.
In Roberts v The Queen, the Court of Appeal recently observed:[9]
[9]A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
[10]The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.
[9][2021] VSCA 28, [9]-[10].
Considering the matters relied upon in this application, I am unable to conclude that any of them alone or in combination amount to exceptional circumstances having regard to the need to prevent future injustice.
The application is therefore refused.
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