Re Winks
[2023] VSC 734
•8 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S SCR 2023 0290
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by TIMOTHY WINKS |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2023 |
DATE OF RULING: | 8 December 2023 |
CASE MAY BE CITED AS: | Re Winks |
MEDIUM NEUTRAL CITATION: | [2023] VSC 734 |
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CRIMINAL LAW – Bail application – Stalking – Using a carriage service to harass – No criminal history – Complainants not supportive of criminal charges – Applicant prima facie entitled to bail – Whether unacceptable risk of applicant not surrendering into custody, committing offence while on bail or endangering any person – Bail granted with conditions – Bail Act 1977, ss 3AAA, 4, 4E, 4E(2), 4E(3)(a), 5AAAA – El Nasher v DPP [2020] VSCA 144 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S. Joosten | Victoria Legal Aid |
| For the Respondent | Ms K. McGregor | Victoria Police |
HIS HONOUR:
On 24 November 2023, the applicant was arrested and remanded in custody on one charge of stalking, contrary to s 21A(1) of the Crimes Act 1958 (Vic), between 6 November 2023 and 22 November 2023, and one charge of using a carriage service to harass, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), between 3 November 2023 and 22 November 2023.
On the same date, the applicant applied for bail in the Sunshine Magistrates’ Court. The application was refused because the magistrate concluded that the applicant, if granted bail, would be an unacceptable risk of endangering the safety and welfare of another person, and of committing an indictable offence while on bail. On 1 December 2023, the applicant made a further application for bail, which was refused on the basis that the applicant did not rely on any new facts and circumstances. The charges have been adjourned for further mention to the Sunshine Magistrates’ Court on 18 December next. The applicant now applies to this Court for bail.
The application was originally opposed by the respondent, on the grounds that if the applicant were released on bail, there would be an unacceptable risk that he would endanger the safety or welfare of a person, commit an offence while on bail, and interfere with the witness or otherwise obstruct the course of justice. On the hearing of the application, counsel for the respondent accepted that each of those risks could be sufficiently addressed by the imposition of appropriate conditions subject to which the applicant could be released on bail.
For the reasons that follow, I was persuaded that the position taken by the respondent is appropriate and correct, and I determined the applicant should be released on bail subject to specific conditions.
The alleged offending
The applicant is 55 years of age. He does not have any criminal history. Before his arrest, he was residing in the home of his mother at 18 Cherry Crescent, Braybrook.
The charges against the applicant concern conduct, engaged in by him, towards his wife (‘the complainant’), and one Daniel Smith (‘Smith’). The applicant and the complainant had separated in September 2023. The complainant was then in a relationship with Smith, that relationship having commenced approximately nine months previously. The applicant, the complainant and Smith have been and are all employed in the same enterprise at Diamond Valley Pork in Laverton.
The charges against the applicant concern a large number of text messages, which the applicant sent to the complainant on dates between 2 November and 21 November, as well as conduct in which the applicant is alleged to have stalked the complainant and Smith.
During that period, the applicant sent a substantial number of messages to the complainant, concerning her relationship with Smith, and his desire that he and she reunite. Some of the messages were reasonably benign in tone and content, but a significant number of them were not. In a detailed report, the informant has extracted those messages. It is not necessary for me to set them out in a complete form, but it is relevant to refer to a selection of them, in order to give content to the charges, which have been brought against the accused man.
On 2 November and 3 November 2023, the applicant sent the complainant a series of text messages, asking her to leave Smith. On 3 November, the messages included a threat, by the applicant, that he would advise Fair Work about ‘everything’, including the complainant’s affair with Smith, so that they could both lose their jobs.
On 5 November 2023, the applicant sent a series of text messages to the complainant that included the following:
‘If I lose my job you will be sorry to for fucking me around. It’s all because of you this happened. I’ll go to gaol I’m telling you now. Get your ass back here now and stop this affair with that fat headed tattooed pig your [sic] fucking’; a number of threats to the complainant that she and Smith would each lose their employment; ‘You’re the cause of all this problem with me’; ‘You have to fix this or I’ll fix it’; ‘I’ll make sure you’re not with him again’; ‘I swear on my mother’s life I will not let you both hurt me and get away with this, I’ll go to gaol’; and ‘You’d better come back or eles [sic]’.
On 6 November 2023, the applicant sent the following text messages:
‘Don’t think you both have shit on me and got away with this. It’s gona [sic] end real bad soon’; ‘You’ll wish you never fucked around with me’; ‘I’ll smash his car to pieces with you in it’; ‘You started all this and I’m gonna finish it’; ‘Don’t worry I’m going to get you both. Make sure you never work again’; ‘I’ll teach you a lesson you don’t ever forget’; and ‘I know where you live’.
Those messages also referred to the applicant having observed the complainant and Smith holding hands together in the Coburns Central Shopping Centre. On that afternoon, the complainant and Smith had been present at that shopping complex.
On 8 November 2023, the applicant sent messages, that included: ‘If I lose my job you’ll be losing yours too’; and ‘I’ll make sure you both don’t have work’.
On 9 November, the applicant sent text messages that included: ‘If I lose my job you will have a very big problem …’; and ‘It’s going to end really badly this …’.
On 10 November, the applicant sent messages that included: ‘You better take notice of what people are telling you, you will end up in the shit’; and ‘I’m going to that unit and I’m going to drag you out there’.
On 14 November, the applicant sent messages that included: ‘… I’m gonna do something bad soon I know where you live in close’; ‘You can run but you can’t hide I’ll find you’; and ‘I’ll force you to quit your job if you don’t go back here, I’m telling you now’.
On the next day, 15 November, the complainant and Smith, while shopping at the Woodgrove Shopping Centre, observed the applicant in the car-park, near the Woolworths supermarket. When the complainant and Smith left in their vehicle and drove north on Coburns Road, they observed the applicant following them in his vehicle.
On 17 November, the applicant sent further text messages to the complainant. They commenced with the applicant protesting that he wanted to repair their marriage. In the following messages, he said: ‘It’s not finished between you and me I’m telling you now’; ‘You’re going back with me or I’ll do something’; ‘You’ll regret it’; ‘You think you’re too good for me now do you, I’ll teach you a lesson’; ‘I’ll smash that red door down’; and ‘One day you’ll get hurt a lot worse than what you’re doing to me’.
On that date, while the complainant and Smith were at their home address in Melton West, they observed the applicant drive past their home on a number of occasions in his motor vehicle.
On 18 November, the applicant sent further text messages to the complainant that included: ‘Don’t try and ignore me girl. I’ll teach you a lesson you’ll wish you never did this to me’; ‘If you don’t come back I’ll force you to come back’; ‘You won’t be seeing Xmas with him this year my friend’; ‘Enjoy the life while you can’; and ‘You won’t ignore me soon I can tell you that much. You will be begging me to stop’.
On 19 November, the messages included the following: ‘Don’t start playing your bullshit games because you’re with him insulting me I’m telling you right now what’s gonna happen soon. You’ll be really sorry you did this to me’; ‘He won’t live to know what’s gonna happen to us’; ‘You think you can play with me like this and get away with it. He’ll know. I’m coming after you bitch beleave [sic] me you’ll be sorry I’m telling you now you better stay home. Or go back here make your choice now’; and ‘You better start replying to me I’m getting really pissed off now. Something will happen soon if you don’t go here. It’s a matter of time before I lose my cool’.
On 21 November, the applicant telephoned the complainant 49 times. He also sent messages to the complainant that included the following: ‘I’m outside waiting you’; ‘His [sic] fucked my marriage up and you let it happen. Fucked up my life and now I’m going to fuck him up. If you don’t leave him you’ll see’; ‘Fucking mole you wait I’ll get you for hurting me don’t go to work’; and ‘You won’t be working any more that’s the end’.
At approximately 4:00 am on 22 November, Smith and the complainant, while driving to work, observed the applicant’s vehicle tailgating them, while they were on the entry ramp to the Western Freeway in Melton. On two occasions after they had entered the freeway, the applicant pulled his vehicle in front of Smith’s vehicle and suddenly applied his brakes, causing Smith to manoeuvre to avoid a collision.
On the second occasion, the applicant’s conduct caused Smith to pull over to the side of the Freeway. The applicant also pulled over, and got out of his vehicle wielding a silver baseball bat. He approached the passenger side of Smith’s vehicle where the complainant was seated. In response, Smith quickly accelerated back onto the freeway, causing the applicant to attempt to strike out at his vehicle.
On the same day, the complainant sent the applicant a series of messages, requesting him to desist from his conduct. The applicant responded with messages to the effect: ‘I’ll get him don’t worry. You both hurt me when I was innocent and done nothing wrong to you. I trusted you that’s why you hurt me’; and ‘I won’t mess around any more’.
As a result of the applicant’s conduct and the messages, the complainant and Smith attended the Sunshine Police Station on 22 November, after the incident on the Western Freeway. The complainant and Smith have declined to provide a statement, as they have both indicated that they only wished to have intervention orders made in order to protect them, and to act as a deterrent to cause the applicant to desist his conduct.
On 24 November 2023, the Sunshine Magistrates’ Court made a family violence interim intervention order (FVIIO). The Protected Person in respect of that order is the complainant. By the terms of the order, the applicant is precluded from (inter alia): communicating with the complainant; approaching or remaining within 20 metres of the complainant; or being within 200 metres of the complainant’s residence or any place where she lives.
On the same date, the court also made an interim intervention order in respect of which Smith is the Protected Person. By the terms of that order, the applicant was precluded from (inter alia): stalking Smith; committing prohibited behaviour towards Smith; contacting Smith; attempting to locate or follow Smith; approaching or being within five metres of Smith; and being within 200 metres of Smith’s residence or any other place where he lives.
The applicant was arrested and charged on 24 November 2023. When interviewed, he exercised his right not to answer the questions that were put to him. At the conclusion of the interview, he said, ‘Sometimes you say things you don’t mean’.
The applicant’s circumstances
As I have mentioned, the applicant is 55 years of age. If he is released from custody, he would have stable accommodation available to him with his mother, Marlene Winks, in premises in Cherry Street, Braybrook. The applicant has some health issues, including arthritis in his lower spine, and a history of perforated eardrums, which have caused him to have restricted hearing in his left ear. It is proposed that, if the applicant were released on bail, he would be subject to conditions that he would reside at his mother’s address in Cherry Street, Braybrook, and that he comply with the conditions in the FVIIO and the interim intervention order.
Submissions on behalf of the applicant
In support of the application, counsel for the applicant noted that the offending, alleged against the applicant, is limited to a two and a half week period, which followed the breakdown of the applicant’s marriage to the complainant. Counsel further noted that the complainant and Smith have repeatedly declined to make a statement, and, as a consequence, the prosecution case, in relation to the physical stalking and oral threats of violence, is weak.
Counsel further submitted that the respondent has not established that there is an unacceptable risk that, if the applicant were released on bail, he would re-offend, endanger the safety of the complainant and Smith, or interfere with witnesses. Counsel noted that the applicant has no previous criminal history, he has full-time employment, in which he has been engaged for nearly 13 years, and that he has stable accommodation available to him with his mother in Braybrook. Further, there is no established history of any family violence involving the applicant. In the present matter, the applicant consented to the interim family violence intervention order and the personal safety intervention order. In addition, counsel noted that the applicant has now spent more than two weeks in custody, which, it was submitted, would have had a deterrent effect on him.
Finally, counsel noted that, notwithstanding the serious aspects of the alleged offending, it is unlikely that the applicant would be sentenced to a term of imprisonment. However, even if he did receive such a sentence, it is likely that, if the applicant were not granted bail, he would spend more time in custody than he would receive as a consequence of any such sentence.
The response to the application for bail
As I have noted, the respondent originally opposed the grant of bail, on the basis that the applicant, if released, would constitute an unacceptable risk of endangering the safety or welfare of another person, committing an offence on bail, and interfering with a witness. Subsequently, on the hearing of the application, counsel for the respondent accepted that those risks may be sufficiently offset by the release of the applicant subject to appropriate conditions.
Bail provisions
The offences, with which the applicant has been charged, are not offences prescribed by Schedule 1 or Schedule 2 of the Bail Act. Accordingly, pursuant to s 4 of the Act, the applicant is entitled to a grant of bail, unless I am otherwise required, by the Act, to refuse the application for bail.
In that respect, the respondent has contended that, pursuant to s 4E of the Act, if the applicant were released on bail, there would be an unacceptable risk that he would: endanger the safety or welfare of another person; commit an offence while on bail; and further or alternatively, interfere with a witness or otherwise obstruct the course of justice. Section 4E(2) of the Act provides that the respondent bears the burden of satisfying the court of the existence of that risk, and that it is an unacceptable risk. Section 4E(3)(a) of the Act provides that, in considering whether a risk of that kind is unacceptable, the court must take into account the ‘surrounding circumstances’, which are defined in s 3AAA of the Act. Section 4E(3)(b) provides that, in determining that question, the court must also consider whether there are any conditions of bail that may be imposed to mitigate the risk, so that it is not an unacceptable risk.
Section 5AAAA(2) of the Act provides that, where an applicant has been charged with a family violence offence, the court must consider whether, if the applicant were released on bail, there would be a risk that the applicant would commit family violence, and whether that risk could be mitigated by the imposition of an appropriate condition of bail, or the making of a family violence intervention order.
Analysis and conclusion
In considering whether the applicant, if granted bail, would constitute an unacceptable risk, it must be acknowledged that the applicant’s conduct, in the period of three weeks preceding his arrest, is a matter of particular concern. The messages, that the applicant sent to the complainant during that period, escalated both in terms of their tone and in the threatening nature of their content. The messages reflect an increase in the intensity of the applicant’s feelings of frustration and hostility towards both the complainant and Smith, who he blames for the breakdown of his marriage to the complainant. The applicant’s conduct in that respect culminated in his irresponsible behaviour on the Western Freeway on 22 November 2023.
It is also a matter of some concern that the applicant has declined to undergo an assessment for the CISP program, which is a program that could assist him to resolve the intense bitterness that he feels towards Smith and the complainant, and which could, thus, ensure that he did not become involved again in the kind of conduct which has now brought him before the courts.
In those circumstances, it must be concluded that, if the applicant were released on bail, there would be a material level of risk that he might endanger the safety of Smith and the complainant, and that he might re-offend. The critical question is whether, taking relevant considerations into account, including those prescribed by s 3AAA of the Bail Act, that level of risk is unacceptable.
In determining that question, it is important to keep in mind that the applicant, who is now 55 years of age, has no previous convictions. He has stable employment, and suitable accommodation with his mother, available to him, if he were to be released on bail. In addition, the applicant is now subject to a family violence interim intervention order, in respect of which the Protected Person is the complainant, and he is also the subject of an interim intervention order, in respect of which Smith is the Protected Person. Each of those factors are relevant in considering whether, in the circumstances, there would be an unacceptable risk, particularly in respect of the safety of the complainant and Smith, should the applicant be released on bail.
Further, and importantly, the applicant has now been on remand for a period of two weeks. The matter is listed for mention in the Sunshine Magistrates’ Court on 18 December 2023. Unless the case is disposed of on that date, there would be a further period of delay in the resolution of the charges against the applicant, irrespective of whether the applicant ultimately decided to plead guilty to them. In that event, and without pre-empting a decision on the sentence, which might be imposed on the applicant when the charges are finally dealt with by the court, it is, at the least, probable, that if the applicant were not granted bail, he would spend a significantly longer period of time in custody than any sentence that may ultimately be imposed on him. It has been recognised by the Court of Appeal that such a consideration weighs ‘powerfully in the mix’ in determining whether, in the circumstances, there would be an unacceptable risk if the applicant were released on bail.[1]
[1]El Nasher v DPP [2020] VSCA 144, [52] (Priest, T. Forrest and Weinberg JJA).
Finally, it is relevant that neither the complainant nor Smith support the institution or prosecution of the charges against the applicant, and that they each consider that they will be sufficiently protected by the intervention orders that have been made on their behalf. They are each supportive of the applicant being granted bail.
Taking those matters into account, I concluded that the respondent has not demonstrated that, if the applicant were released on bail, he would present an unacceptable risk that he would endanger the safety or welfare of any person, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice.
Accordingly, I grant bail to the applicant on his own undertaking, subject to and on the following conditions:
(1)The applicant attend the Sunshine Magistrates’ Court on 18 December 2023 at a time to be advised and then surrender himself.
(2)The applicant must reside at 18 Cherry Crescent, Braybrook and not change that address without the leave of the Court.
(3)The applicant not depart from those premises between 9:00 pm and 6:00 am unless he is engaged in employment during those times.
(4)The applicant must comply with intervention order P12457200.
(5)The applicant must comply with intervention order P12467230.
(6)The applicant not contact, directly or indirectly, any witness for the prosecution, except the informant.
(7)The applicant not contact, directly or indirectly, any member of the family of the complainant, and not cause any other person to contact her or her family.
(8)The applicant not to go or remain within the district of Harkness.
(9)Within 24 hours of the date of this order, the applicant is to advise the informant of his mobile telephone number and the applicant is only to use, and have access to, one mobile telephone.
(10)The applicant to report to Sunshine Police Station each Monday between the hours of 8 am and 7 pm.
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