Re Walker
[2018] VSC 804
•3 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0221
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Travis WALKER | |
---
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2018 |
DATE OF JUDGMENT: | 3 September 2018 |
CASE MAY BE CITED AS: | Re Walker |
MEDIUM NEUTRAL CITATION: | [2018] VSC 804 |
---
CRIMINAL LAW – Application for bail – Charges of stalking, using a carriage service to menace, threat to kill, threat to inflict serious injury, using a carriage service to harass, committing indictable offence whilst on bail, using a carriage service to procure a child under 16 for sexual activity – Application not opposed – Compelling reason test – Unacceptable risk – Surrounding circumstances – Whether conditions ameliorate unacceptable risk – Moderate intellectual disability – Vulnerable in custody – Strong support services – Lower end of seriousness – Bail granted with conditions – Bail Act 1977.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Fitzgerald Ms A Wong | Victoria Legal Aid |
| For the Respondents | Mr M Aitken | Victoria Police |
| Ms K Breckweg | Commonwealth Director of Public Prosecutions |
HIS HONOUR:
Introduction
On 13 June 2018, Travis Walker (‘the applicant’) was arrested and charged with offences of stalking, using a carriage service to menace (four counts), threat to kill, threat to inflict serious injury, using a carriage service to harass, and committing indictable offences whilst on bail (three counts) (‘the State charges’). The charges arise out of events that are said to have occurred between 4 and 9 June 2018 in relation to one complainant, who is the applicant’s cousin.
At the time of the alleged offending, the applicant was on bail in respect of offences alleged to have been committed on 9 and 10 April 2018. The applicant had been charged with two counts of using a carriage service to procure a child under 16 for sexual activity (‘the Commonwealth charges’). He was granted bail on 15 May 2018 in respect of these charges, and that bail was ultimately revoked on 13 June 2018.
Additionally, at the time of the alleged offending, the applicant was the subject of a 12 month community corrections order. This was imposed on 17 January 2018 for the offences of wilful damage of property, throwing a missile to damage property, unlawful assault, unlawfully beating another person, and using threatening words in a public place.
The applicant has been in custody for 82 days since his arrest on 13 June 2018. He applied for and was refused bail at the Ballarat Magistrates’ Court on 13 June and 9 August 2018. These charges are listed for mention on 18 October 2018. On 16 August 2018, the applicant applied to this Court for bail.
Although some of these charges could be heard in the Magistrates’ Court, it seems likely they will be dealt with together at the County Court. The consolidation of these matters would be a sensible outcome.
However, it is somewhat disheartening to hear that if this matter is committed to the County Court, it may not be resolved within the year. This would be a particularly unsatisfactory outcome in respect of this applicant.
The alleged offending
The State charges
The prosecution case is that at approximately 5.51pm on 4 June 2018, the applicant contacted the complainant, asking her to bail him out of police custody. The complainant advised the applicant that she did not have any money.
On 5 June 2018, at approximately 9.35am, the applicant again contacted the complainant on her mobile phone, asking her for money. The complainant refused and asked the applicant to stop calling and leave her alone, allegedly angering the applicant.
On 8 June 2018, at approximately 11.40am, the applicant called the complainant, but she did not answer. At approximately 6.30pm, the applicant called the complainant from a private number. The applicant identified himself when she answered. The prosecution allege that the applicant told the complainant that he needed to separate her from her partner. The complainant terminated the call.
Later, at approximately 6.44pm, the complainant received another call from the applicant on a private number. It is alleged that the applicant said to the complainant, ‘I wanna take you outta town at midnight so I can punch the back of your head’.
The prosecution allege that at the time of making the threat, the applicant was aware that the complainant had been hit in the back of her head approximately four years ago, fracturing her skull. The complainant had been advised by her treating doctor that she could die from a further head injury.
On 9 June 2018, at approximately 12:30pm, the complainant was at a friend’s house when she received a call from a private number which she did not answer. At approximately 1.00pm, the complainant’s friend received a call from a private number which she answered on speaker phone. The complainant identified the caller as the applicant. The friend told the applicant to leave the complainant alone, before terminating the call.
The Commonwealth charges
The prosecution case is that at 3:56pm on 8 April 2018, the applicant first made contact with ‘Emily James’ through Facebook Messenger. Emily James is a fictitious identity created by Detective Senior Constable Clint Ousley, from the Joint Anti-Child Exploitation Team.
The applicant allegedly asked Emily how old she was, if she was single and if she was cute. Responding as Emily, Detective Ousley said she was 14 years of age. The applicant identified himself as 20 years old.
On 9 April 2018, the applicant allegedly initiated conversation with Emily again through Facebook Messenger, asking if she was single and if they could date. The applicant sent a message to Emily that read, ‘I just want u’, to which Detective Ousley replied by confirming Emily’s age. The applicant allegedly asked again if they could date, and that Emily not tell her mother. When asked what they would do if they dated, the applicant responded, ‘Fuck’ and ‘u no have sex’.
The prosecution allege that the applicant engaged in further sexualised conversation, asking Emily if she would have ‘sex chat’ and what bra size she wears. The applicant allegedly told Emily that he was ‘having a wank’ over her, before asking if she wanted to see a picture of his penis. He then sent a picture depicting himself naked, as well as a photograph of an erect penis. The applicant allegedly asked Emily if she liked it and if she wanted to suck it, before telling her, ‘I wanna fuck u hard’.
On 10 April 2018, the applicant allegedly contacted Emily again through Facebook Messenger, asking if she loved him and saying that he loved her. The applicant said he was ok with their age gap and that ‘if we can date u can get a train to Ararat’. When asked what they would do if she travelled, he replied, ‘I fuck u’.
On 15 May 2018, a warrant was executed at the applicant’s premises, and a smart phone belonging to the applicant was seized.
The applicant was subsequently arrested and interviewed. During the record of interview, the applicant made partial admissions to the offending and indicated that he knew that he had gone overboard when he spoke to his cousin on the telephone. He stated that he was not allowed to send photographs of himself, nor have sex with a 14 year old. The applicant further stated that if he had met Emily in person, he would have tried to be her friend.
The applicable legislation
As this application was made on 16 August 2018, Authorised Version No. 140 of the Bail Act 1977 (‘the Act’) applies.
The applicant is charged with a Schedule 2 offence, that is, committing the indictable offence of stalking while on bail for another indictable offence, being the use of a carriage service to procure a child under 16 for sexual activity.[1] Therefore, pursuant to s 4C(1) of the Act, the applicant is required to show a compelling reason exists that justifies the grant of bail.
[1]Bail Act 1977 (Vic) Schedule 2 cl 1 (a).
In considering whether a compelling reason exists, I must take into account the surrounding circumstances, pursuant to s 4C(3) of the Act. Surrounding circumstances are defined in s 3AAA of the Act, which sets out the matters that a court must take into consideration, depending on the circumstances.
The definition of ‘compelling reasons’ has recently been addressed in Re Ceylan.[2] Considering the test, Beach JA stated:
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified…in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist.[3]
[2][2018] VSC 361.
[3]Ibid [47].
If satisfied that a compelling reason exists that justifies the grant of bail, the Court must apply the unacceptable risk test, pursuant to s 4D(1) of the Act. Pursuant to s 4E(1)(a), I must refuse bail if there is an unacceptable risk that the applicant, if released on bail, would:
(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.
In applying the unacceptable risk test, s 4E(3)(a) of the Act requires the Court to again take into account the surrounding circumstances. The Court is also required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk, pursuant to s 4E(3)(b) of the Act.
The applicant
The applicant is 22 years old and one of five children. His parents separated when he was an infant, and his father died in October 2014. He has an eight year old daughter.
The applicant left school after Year 12. He worked for a period of three weeks as a cabinet maker, and one month at a supported employment facility.
The applicant has been diagnosed with a moderate intellectual disability, with an intellectual quotient of 48. He is currently in the care of the Department of Health and Human Services (DHHS). Prior to his arrest and incarceration, he resided in supported disability accommodation in Ararat.
It is acknowledged that the applicant has a criminal history that dates back to 2016. This includes prior convictions for offences of criminal damage, assault, wilful damage of property, using threatening words in a public place, and contravention of a family violence intervention order. The applicant has been the respondent for ten previous family intervention orders, dating from 2015 to 2018. Nevertheless, I am told that his family support him. I have taken these circumstances into account.
I was provided with a report by Dr Anthony Cidoni, dated 24 April 2018, prepared for the purpose of determining whether applicant was fit to be tried in earlier proceedings. Dr Cidoni reported that the applicant suffers from a head injury, a history of impulsive and aggressive behaviour, Bipolar Disorder and Post-Traumatic Stress Disorder. He has a history of suicidal ideation and there is at least one instance of a suicide attempt. He has been on treatment for a number of years with antipsychotic medications and mood stabilisers.
The report notes that on balance, the applicant would be fit to be tried, although given his intellectual disability, it would be important for a court to ensure he has a support person present in proceedings.
Additionally, Dr Cidoni opines that the applicant would be very vulnerable in custody and at risk of self-harm due to an exacerbation of his depression. This was advanced on behalf of the applicant in oral submissions before me, with further claims that the applicant has been assaulted while in custody. I take this vulnerability into account in my consideration below.
The applicant’s submissions
In an affidavit affirmed 16 August 2018, the applicant’s solicitor, Michael Haralambous, supported the grant of bail for the applicant. It is submitted that the following matters are established by evidence and, in combination, show compelling reason why bail should be granted.
Suitable accommodation
This applicant has supported disability accommodation in Ararat. Simon Walter, the manager of Disability Accommodation Services for the Central Highlands Region, gave evidence before me that the applicant would be able to return to this address if granted bail.
Mr Walter gave evidence that the accommodation is staffed 24 hours a day, and includes an all-day program on weekdays.
Support services
It was submitted that the applicant has various sources of support, including his family who will continue support him if bail is granted.
The applicant will also continue to receive support from DHHS. Mr Walter gave evidence that this includes support with everyday activities, including transportation to and from his day program and to regular appointments. This was further supported by the evidence of Luke Xantidis, a unit manager at Disability Justice at DHHS. Mr Xantidis gave evidence as to the involvement of Disability Justice in assisting the applicant. This includes the coordination and oversight of services tailored to the needs of the applicant, and would extend to monitoring his adherence to any conditions placed upon him by a court.
The applicant also submitted that if granted bail, he would be able to return to his day program at a nursery in Stawell, which involves customer service and horticultural work.
Vulnerability
The applicant submitted that due to his moderate intellectual disability, he is vulnerable in custody. It was submitted that this is his first time in custody, and he has been assaulted on several occasions. I was provided with a statement made by the applicant to police on 3 August 2018, alleging that he was assaulted in custody on 12 July 2018.
On 9 August 2018, at a previous bail application, the applicant’s sister, Alisha Walker, also gave evidence that she heard the applicant being threatened by other prisoners whilst he spoke to her on the phone.
Seriousness of the charges
The applicant submits that the alleged offending is towards the lower end of the range of objective seriousness. It was further submitted that the applicant’s moral culpability ought to be regarded as towards the lower end.
Compliance with grants of bail
The applicant has no history of failing to answer bail. It was further submitted that he has no prior convictions of guilt for committing an indictable offence whilst on bail. I do note however, that this is one of the allegations made against him.
Proposed conditions of bail
If granted bail, the applicant proposes the following conditions, that he:
(a) reside at the supported disability accommodation facility at 17 Burke Road, Ararat;
(b) not be in the company of any persons under the age of 18, unless supervised by the child’s parent or legal guardian (excluding himself);
(c) not contact or communicate with any persons under the age of 18, unless supervised by the child’s parent or legal guardian (excluding himself), unless in the course of a legitimate business or retail purpose;
(d) notify the informant of possession/ownership of any internet enabled device, including mobile phones, and present any such device upon request;
(e) not contact any witness for the prosecution, except for the informant; and
(f) comply with the lawful directions of the DHHS and disability housing provider.
The applicant submits that any unacceptable risk can be ameliorated by these conditions.
The respondent’s submissions
Victoria Police
In an affidavit sworn on 23 August 2018, Senior Constable Nathan Watt submitted that if the applicant can show a compelling reason, and restrictive conditions are imposed on the applicant, Victoria Police do not oppose bail.
This position was reinforced during the hearing of the application.
The Commonwealth Director of Public Prosecutions (‘CDPP’)
In an affidavit sworn on 21 August 2018, Detective Senior Constable Alicia Birtles submitted that the CDPP does not oppose the applicant being granted bail. It was conceded he does not pose an unacceptable risk of reoffending, and submitted that the conditions proposed by the applicant were appropriate, should he be granted bail.
This position was maintained in the hearing of the application, with counsel for the CDPP ultimately submitting that the applicant had demonstrated a compelling reason.
Conclusions
After considering all the material, evidence and submissions before me, I conclude the applicant has shown compelling reason that justifies the grant of bail.
It is particularly significant that the alleged offending appears towards the lower end of seriousness, and that the applicant has a moderate intellectual disability with an intellectual quotient of 48. I have considered the degree of vulnerability the applicant appears subject to in custody.
It is important that all steps are taken to prevent the applicant from committing further offences. It appears that he has strong, continuing support from Disability Accommodation Services and I have been informed his family will provide ongoing support.
Having concluded that the compelling reason test has been satisfied, there are a number of conditions that can be ordered to ameliorate any of the risks of the applicant being granted bail.
I will impose conditions, including that the applicant must notify the informant of possession and/or ownership of any internet enabled device, including a mobile phone. Any such devices and relevant access information must be presented to the informant, or their delegate, upon request.
Moreover, I will order that the applicant present any such device at the request of any officer of Disability Accommodation Services, Disability Justice, and the informant or their delegate, for monitoring.
0