Re Walker
[2007] VSC 129
•19 April 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1456 of 2007
IN THE MATTER of an application for bail by SHANE PETER WALKER
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2007 | |
DATE OF RULING: | 19 April 2007 | |
CASE MAY BE CITED AS: | Application for Bail - Shane Peter Walker | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 129 | |
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CRIMINAL LAW – Bail – Show cause under s 4(4)(c) Bail Act 1977 – Whether unacceptable risk under s 4(2)(d) Bail Act – Factors relevant to unacceptable risk under 4(3) Bail Act also relevant to show cause under s 4(4) – Unacceptable risk considered in context of conditions imposed – Cause shown – No unacceptable risk – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Scheid | Office of Public Prosecutions |
| For the Applicant | Mr A Hale | Hale & Wakeling Solicitors |
HIS HONOUR:
Shane Peter Walker is charged with an offence of armed robbery and an offence of common assault which were said to have been committed on 11 March 2007. Since his arrest on that date he has been held in custody. He applied to the Magistrates' Court for bail which was refused and he now applies to this Court for bail.
As I have indicated I am minded to grant the application, and these are my reasons which are incorporated as part of the order pursuant to s 4(4)(d)(i) of the Bail Act 1977.
The nature of the charge is such that it falls within s 4(4)(c) of the Bail Act. It may also fall within s 4(4)(a) but the Crown does not rely on that particular provision. In any event, the effect of it falling within s 4(4)(c) of the Bail Act is that the Court is required to refuse bail unless the accused person shows cause why his detention in custody is not justified. The Court is also required to refuse bail if satisfied that there is an “unacceptable risk” if the applicant was released on bail that any of the four events specified in s 4(2)(d)(i) of the Bail Act would occur (see further below). I note that there is some debate in the authorities as to whether a “single step” or “two step” approach is required in applying the provisions of ss 4(2) and 4(4): see Asmar[1]; compare DPP v Harika[2] and R v Paterson.[3] There is no need for me to choose between these approaches in deciding the present application. It is acknowledged on all sides that there is a great deal of overlap between the issues which may arise under the respective provisions. In particular, it is acknowledged that the factors referred to in s 4(3) as being relevant to “unacceptable risk” are also potentially relevant to the question whether an applicant has shown cause “why his detention in custody is not justified” for the purposes of s 4(4). I have had regard to each of those factors in the present case.
[1][2005] VSC 487.
[2][2001] VSC 237.
[3][2006] VSC 268.
The matters with which Mr Walker has been charged are serious. Indeed they are significantly more serious than any matter with which he has previously been charged. The allegation is that after drinking a significant quantity of alcohol, and with three young co-offenders, Mr Walker took part in an opportunistic armed robbery late at night in a street near the Gardenvale railway station. The victim was allegedly forced into an alleyway and robbed of his backpack and its contents. One of the group (not Mr Walker) is alleged to have lunged at the victim with a knife during the course of the robbery. It is alleged that Mr Walker and another co-offender were holding the victim down at that stage. The victim escaped and was then allegedly chased by the group through the nearby streets before obtaining assistance.
Nevertheless I am satisfied that Mr Walker has shown cause why his detention in custody is not justified.
The first matter relied upon by Mr Walker’s counsel is that he suffers from an intellectual disability and that that, together with his relative youth (he is 24 years old), renders him unusually vulnerable as an individual. I accept this. He is also - as the expert evidence shows - someone who is easily led by peers and others.
A manifestation of Mr Walker’s vulnerability is that in recent days he was apparently assaulted in his prison cell, such that he had to be moved to protective custody in a different prison. The Crown accepts that, generally speaking, it may well be that time spent in protective custody is "harder" time than time spent in the mainstream part of a gaol. Unless bail is granted Mr Walker would be subjected to protective custody for at least a significant further period.
I think that Mr Walker’s intellectual disability is also a relevant consideration in another respect in that it is accepted by the Crown that, on the basis of the cases referred to in R v Williams[4] (and especially R v Tsiaras[5]), Mr Walker’s intellectual disability would probably be required to be taken into account in his favour in relation to sentencing (in the way specified in those cases) should he be found guilty of the offence in question.
[4][2000] VSCA 174.
[5][1996] 1 VR 398.
The next matter is that Mr Walker's father is offering his house in West Melbourne as a place where he, Mr Walker, would be able to reside with his father for as long as needed. I have heard evidence from Mr Walker's father and he impressed me as someone who is concerned to provide support and care for his son to the best of his ability. He tells me, and I accept, that the relationship between his son and himself had begun to improve shortly prior to the arrest of his son on this particular set of charges.
Mr Walker’s father expresses some confidence, albeit not overwhelming confidence, that he may be able to have some influence over his son's behaviour, and he says he will make every endeavour to discourage his son from alcohol abuse. Abuse of alcohol was associated not only with the alleged offending on this particular occasion but also with other trials and tribulations in Mr Walker’s life and possibly with other offences that Mr Walker has been involved in. It would of course be very much in Mr Walker’s interest to abstain as far as possible from alcohol use in the future, and particularly whilst he is on bail in the immediate future.
The next factor that suggests that cause has been shown is the existence of other support networks or services that are willing to assist Mr Walker if he is granted bail. I think that they are significant in showing cause. I am satisfied on the material that he would get support not only from his father (and possibly from his sister who is in court), but also from disability workers within the Department of Human Services, although I do note that in the past Mr Walker has offended despite assistance from the Department of Human Services. Importantly, Mr Walker has been assessed as eligible for participation in the Court Integrated Services Program.
At the time of his arrest, Mr Walker was living in accommodation provided by Hanover Housing Services. A report from Hanover expresses some confidence that Mr Walker is improving in his attitudes and behaviour. Hanover has no accommodation for Mr Walker at the moment but would be prepared to re-accommodate him in future when a place becomes available.
The next factor that I take into account is the fact that Mr Walker is pleading not guilty to these charges. I do not think I need to say much about the strength of the Crown case, although there was some debate about that before me. In DPP v Ghiller[6] in a passage referred to with approval in Asmar[7], Eames J said:
“43.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.”
[6][2000] VSC 435 at [43].
[7][2005] VSC 487 at [15] and [25] per Maxwell P.
The applicant denies that he was a participant in the alleged physical assault on the victim. I gather he does not deny being in the vicinity, but it is argued (not completely baselessly) that the present evidence allows for the possibility that he might be found to have been the (one) group member who was standing back and not taking part in the actual physical attack on the victim.
When I inquired of counsel for the Crown as to what sentence might eventuate if the Crown case were upheld against Mr Walker, very fairly Mr Scheid said that whilst Mr Walker would be likely to be sentenced to immediate incarceration, the sentence might not exceed six months’ imprisonment, taking into account Mr Walker’s intellectual disability and other matters relevant to sentence. Yet it seems to be common ground that, the matter being a contest, the trial would not come on for something in the order of 12 months. A committal mention is due for 5 June 2007 and the committal itself would be expected to occur in August or September 2007. The trial in the County Court could then be expected to be conducted between March and June 2008. Although of course the length of any sentence would be entirely a matter for the County Court, the probable waiting period will be significantly longer than the Crown’s present estimate of what an appropriate sentence might be.
Unacceptable risk
As mentioned above, under s.4(2)(d) of the Bail Act I must refuse bail if I am satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his bail or would commit an offence whilst on bail or would endanger the safety or welfare of members of the public or would interfere with witnesses or otherwise obstruct the course of justice.
It appeared initially that there was a lengthy series of non appearances in answer to bail in the applicant's criminal history, but on analysis it turns out that there were only two such occasions. Further, the Crown does not suggest that either was a case of deliberate absconding or a case where the applicant had gone to ground. Rather, the Crown accepts that each was probably associated with Mr Walker’s intellectual disability, manifested by difficulty with organising himself to attend to his obligations in a timely way.
The Crown does not seriously suggest that it is likely that the applicant would fail to surrender himself into custody in answer to his bail if bail were granted by this Court. Mr Walker has no history of leaving the jurisdiction, nor any connections elsewhere. Apart from the prospect of being convicted and sentenced, there is nothing to suggest that he would abscond whilst on bail.
The real thrust of the Crown's submissions was that the applicant may commit an offence whilst on bail. Of course, insofar as the Crown relies on s 4(2)(d) of the Bail Act the Crown has the onus of satisfying the court that there is an unacceptable risk that the accused person if released on bail would commit an offence whilst on bail.
I am not satisfied that there is an unacceptable risk of the applicant committing an offence whilst on bail, notwithstanding that obviously there is a risk. As Morris J said in Re an application for bail by Stewart[8], a decision I have found helpful in analysing the issues in the present case:
"What is an unacceptable risk must be considered in the context of the conditions to which bail would be subject if bail is granted. In this case the conditions I propose will require a great deal of support from other people which will be freely given. I think with that support there is a sufficient prospect of reducing the risk to one that is acceptable rather than unacceptable."
[8](2004) VSC 405.
Similarly here, I think that with the imposition of the conditions that I have discussed with counsel, and which are set out below, the risk of the applicant committing further offences while on bail is reduced to an acceptable level. Of course, if there were another offence committed by the applicant while he was on bail, no doubt his liberty would be revisited. Before finally deciding to release the applicant on bail I need to be satisfied that he understands the nature and extent of his conditions of bail (Bail Act, s 17(1)). I have received an assurance in that regard from Mr Walker’s counsel after consultation between him and Mr Walker.
Conclusion
It is for these reasons that I would grant the application for bail, on the following conditions:
1.The said Shane Peter Walker reside at a certain address to be specified in the Orders, being his father’s home in West Melbourne, or other accommodation as may be made available by Hanover Community Housing Service.
2.The said Shane Peter Walker report daily to the Officer in Charge of the Police Station at City West or his nominee between the hours of 6.00 am and 9.00 pm.
3.The said Shane Peter Walker give 48 hours notice to the informant or his nominee of any proposed change of address.
4.The said Shane Peter Walker not contact directly or indirectly any witness for the prosecution except the informant or his nominee.
5.The said Shane Peter Walker surrender any passports which he may hold to the informant within 48 hours of being admitted to bail and not apply for another passport. Any such passport not to be returned to Shane Peter Walker except upon order of this Court or that of a judge of the County Court of Victoria.
6.The said Shane Peter Walker not attend any point of international departure during the period of bail.
7.The said Shane Peter Walker comply with the requirements of the Court Integrated Services Program of the Magistrates’ Court of Victoria.
8.The said Shane Peter Walker remain at his residential address between the hours of 12 midnight and 6.00 am each day during the period of bail.
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