Re Wishart
[2018] VSC 41
•12 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0007
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by RONALD WISHART
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2018 |
DATE OF JUDGMENT: | 12 February 2018 |
CASE MAY BE CITED AS: | Re Wishart |
MEDIUM NEUTRAL CITATION: | [2018] VSC 41 |
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CRIMINAL LAW – Bail – Appeal against refusal – Possession and manufacture of firearms – Assault and threats to kill – Breach of family violence intervention order – Whether applicant shows cause – Whether conditions ameliorate unacceptable risk – Bail refused – Bail Act 1977 (Vic) s 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Marshall | Stephen Peterson Lawyers |
| For the Respondent | Ms J Malabobic | Victoria Police |
HIS HONOUR:
Introduction
On 2 March 2017, the applicant Ronald Wishart was arrested and charged by police with offences relating to a family violence incident alleged to have occurred the previous evening. Further, he was charged with the possession and manufacture of a number of firearms over the months leading up to the incident. The complainant in the physical violence allegations is his wife, Ms Brodie Wishart.
Procedural history of the matter
At the time of the alleged offending, the applicant was the subject of a family violence intervention order protecting the complainant and their young son, Callum. The original intervention order was granted on 12 April 2016, and was issued due to a family violence incident having occurred between the applicant and the complainant.
The Intervention Order was later varied on 23 February 2017 to permit the applicant to contact the complainant and be within 200 metres of the complainant’s home, as long as she agreed. Following that variation being made, the complainant moved into the applicant’s house in Buln Buln in an attempt to revive their relationship. It is alleged that the incidents giving rise to this bail application occurred in the family home.
The applicant applied to the Latrobe Valley Magistrates’ Court for bail in respect of the charges now before the Court. That application was heard and refused on 19 September 2017. He now applies to this Court for an order granting bail.
Charges before the Court
In summary form the charges now before the Court are that the applicant:
(1) recklessly caused injury to Brodie Wishart;
(2) unlawfully assaulted Brodie Wishart;
(3) threatened to kill Brodie Wishart, intending that she would fear that the threat would be carried out, or he was reckless as to whether or not she would fear that it would be carried out;
(4) made a threat to Brodie Wishart to kill other persons, namely, her parents;
(5) on a separate occasion threatened to kill David Ewen;
(6) contravened a family intervention order by assaulting and threatening to kill the protected person;
(7) assaulted and threatened the protected person;
(8) being a prohibited person possessed 11 firearms;
(9) possessed more than three firearms that were not registered;
(10) manufactured five category A/B longarm/paintball marker firearms without a dealer’s licence or contrary to a dealer’s licence; and,
(11) manufactured two category C/D firearm/E longarm/E handgun/general category handgun firearms without a licence or contrary to a dealer’s licence.
The law that applies in this case
The applicant in this bail application is in a show cause position pursuant to:
(a) section 4(4)(ba)(i) of the Bail Act 1977 (‘the Act’), being charged with contravention of a Family Violence Intervention Order in circumstances where within the last ten years, he had been found guilty of an offence in the course of which he used or threatened to use a firearm, explosive or offensive weapon; and
(b) section 4(4)(c) of the Act, being that the alleged offending involved the threatened use of a firearm.
The alleged offending
The prosecution case is that on the evening of 1 March 2017 at approximately 11.00pm, the applicant arrived at his Buln Buln home after a night drinking at the hotel. An argument developed between him and the complainant during which she told him she wanted to leave their relationship. It is alleged that the applicant then became verbally abusive towards her and, upon her deciding to leave home through the back door, he put both hands around her neck, choking her. It is alleged he banged her head against a wall.
The complainant fought back by kicking and punching the applicant, at which time it is alleged that he placed her in a headlock, yelling at her that she was ‘dead’ and that he would ‘… cut her fucking head off’. He then pressed the complainant against the kitchen refrigerator, continuing to choke her, after which things calmed down and the physical events ended. During the events, a glass jar fell onto the floor and broke, with the complainant receiving cuts on the broken glass as the events were occurring.
After the physical confrontation subsided, and upon the complainant insisting on leaving, the applicant told her that she would not be able to do that if she was dead. It is also alleged he threatened to go to her parents’ home and shoot them dead if she reported the events to the police.
The applicant let the complainant leave the premises, and she went to the Warragul Police Station to report the matter. She was observed by police to be quite distraught, have marks on her neck and chest, a cut to her left shin, and bleeding on her foot.[1] To the police investigating the events, there were descriptions of soreness to her throat and to her head, where the applicant had banged her head against a wall. The complainant’s description of the assault was that she had been left with marks on her neck and chest, ’where he was strangling me’.[2]
[1]Statement of Constable Notman, p 1.
[2]Statement of Brodie Wishart, p 3.
The following day, on 2 March 2017, police attended the applicant’s address and arrested him, conducting a search under warrant of the premises. During that search, police located five commercially manufactured firearms, three handmade firearms, an imitation firearm, shotgun ammunition, and two wooden stocks. It is alleged that the firearms were not stored safely. Police also found equipment capable of manufacturing firearms, such as lathes, and also located photographs on a mobile telephone of firearms during manufacture, and a screenshot of a webpage, ‘firearmsdesigner.com’.
At the time the applicant was charged over the allegations, he was also charged over another alleged threat to kill Ms Wishart’s father, David Ewen, allegedly having been made during December 2016. The threat was made during a telephone conversation between the applicant and Mr Ewen in which they discussed the applicant’s relationship with the complainant. Mr Ewen alleges that the applicant said to him, ‘Are you threatening me? … I will fuckin’ kill you, you’re nothing but a fucking weak cunt’. There was reference in the conversation by Mr Ewen to the effect that the applicant knew where he lived.[3]
[3]Statement of David Ewen, p 2.
When interviewed by the police the applicant broadly denied the allegations of assaulting his wife, and making threats to kill her parents. Whilst not appearing to deny the possession and manufacture of the various firearms he gave explanations surrounding these aspects of the case.
In summary, three occasions of offending are alleged against the applicant. These comprise assault and threats to kill the complainant and her parents; firearms offences involving the items located at the home premises by police; and a separate threat to kill the complainant’s father in December 2016.
Grounds of application for bail
By an application dated 22 January 2018, the applicant applies for a grant of bail from this Court. The grounds stated in the application for bail include:
(1) that the applicant was refused bail in the Magistrates’ Court at Latrobe Valley on 19 September 2017;
(2) that the applicant shows cause why his detention is no longer justified;
(3) that the applicant is not an unacceptable risk of committing further offences, failing to appear on bail or endangering the safety and welfare of the public.
As stated above, in this application the applicant must show cause why his detention in custody is not justified.
From the materials filed with the application for bail, which are supported by an affidavit in support of application for bail sworn by Stephen John Peterson and dated 22 January 2018, the following matters are advanced in support of this application.
Delay and nature of the prosecution case
Having been remanded in custody on 2 March 2017, the applicant will have spent at least one year on remand before the matter is resolved. I am told that the hearing of the case will take place in early March 2018. I am further told of his intention to contest the allegations involving violence, but enter pleas of guilty to the charges involving the possession and manufacture of the firearms. It was put that the charges involving violence and threats is a case of ‘word on word’. Beyond that description, it was not argued the prosecution case was a weak one.
It was argued that the applicant has effectively completed 11 months on remand awaiting the trial of the matters before the court and that he has what was described as ‘a very large credit’ to call upon when the matters come before the Magistrate who will determine the appropriate sentence to pass.
Ties to the jurisdiction and suitable accommodation and family support
The applicant has ties to the jurisdiction, being his family that lives in the Warragul area. Should he be granted bail, it is proposed that the applicant would reside with his sister, Ms Elizabeth Wishart at 872 Old Sale Road, Brandy Creek. It is noted that the applicant’s parents also reside on this property, although in a separate house. In effect, the submission was advanced that should he be granted bail the applicant has good family support and a place to live, associated with a willingness by members of his family to monitor his bail and take action if it became necessary. These aspects were reinforced by the presence of a number of family members in court during the hearing of the application.
CISP supervision and the applicant’s desire to address his issues
On 13 September 2017, for the purposes of the hearing of his bail application at the Latrobe Valley Magistrates’ Court, the applicant was assessed as suitable for support from the Courts Integrated Services Program (‘CISP’). It is suggested that the CISP support program is still available and would involve his current general practitioner, his counsellor, a referral to the Men’s Behaviour Change Assessment at Latrobe Community Health, a referral to the Positive Lifestyle Program conducted by the Salvation Army, and regular appointments with his CISP case manager.
Intervention order in place
An intervention order is currently in place which prohibits the applicant from having any contact with the complainant or her son.
Improved management of the applicant’s mental health problems
On 24 November 2017, the applicant was assessed by a psychiatrist, Dr Fiona Best, who made a series of recommendations for management of the applicant’s mental health. Further, I was informed that the applicant is currently receiving Sodium Valproate medication, as well as anti-depressant medication whilst in custody. It was suggested that the applicant’s sister would do all she can to ensure compliance should he receive bail.
Availability of a range of conditions on being released on bail
The applicant proposes the following conditions to be imposed should he be released on bail. These were that he:
(a) reports daily to the Warragul Police Station;
(b) complies with the requirements of the CISP program;
(c) resides at a static address, namely, 872 Old Sale Road, Brandy Creek;
(d) abides by a curfew between 8.00pm and 7.00am;
(e) not attend within 100 kilometres of the township of Benalla or any other place where the complainant and their son reside;
(f) complies with the current Family Violence Intervention Order which protects the complainant and their son;
(g) not contact prosecution witnesses other than the informant;
(h) not possess any firearm.
It was submitted for the applicant that by virtue of the matters raised, and the supporting evidentiary facts and circumstances, the he has satisfied the requirement to show cause, and further that there was not an unacceptable risk on a grant of bail. It was argued that the various conditions proposed would ameliorate the aspect of unacceptable risk to the point where that risk was not then unacceptable.
The prosecution contentions
The prosecution opposes the application for bail, submitting before me that the applicant has failed to show cause why his continued detention is not justified, and that there is an unacceptable risk that the applicant, if released on bail, would harm the complainant. Further, it was put that no order that could be made would be adequate to alleviate that risk. In particular, the prosecution pointed to the following matters to support the arguments advanced.
History of family violence and breaching court orders
The applicant’s criminal record is not extensive, but includes past offending involving threats, and also offences of a family violence nature. His records shows that he was convicted of making a threat to kill in 2006 and without conviction was placed on a Community Based Order for 12 months. He later breached that order having been charged with making a threat to kill, and assault with a weapon, and was convicted of that offence in 2008, and was fined an aggregate of $1,000. Some of that offending has been in the context of his relationship with the complainant. The current allegations are that he choked the complainant, being a particularly serious form of conduct if proven, and threatened to kill her and her parents.
It is pointed out that an incident of family violence against the complainant occurred in April 2016 which resulted in intervention order proceedings and an undertaking dated 12 April 2016, of which the applicant is now alleged to be in breach.
Further, the prosecution points to an assessment made by the psychologist Jeremy Parker in his report of 16 July 2017[4] which opines that having carried out a risk assessment, he concluded that the applicant had a 31% risk of reoffending violently in the next 10 years.
[4]Report of Jeremy Parker, p 8.
The applicant’s non-compliance with a treatment regime for his psychiatric conditions
The applicant has been diagnosed with bipolar disorder. According to David Bruce, a forensic psychologist, in his report of 31 January 2017, the applicant was found to be suffering from Bipolar II Mood Disorder (DSM-5 296.89).[5]
[5]Report of David Bruce, p 1.
Notably, Dr Bruce described the applicant as suffering from a long standing and fairly severe disorder. However, Dr Bruce described the applicant as being engaged in resumed cohabitation with his partner (the complainant), and with an improving relationship — the prognosis is very positive. In the face of those positive opinions the prosecution points to the present allegations of domestic violence alleged to have occurred only weeks later as being a factor relevant to the assessment of unacceptable risk.
The applicant’s fragile emotional state and his access to firearms
It is argued for the prosecution that the applicant’s access to firearms, combined with his heightened emotional state and mental health issues, render him an unacceptable risk to the complainant and her parents. It is alleged that in the period leading up to the assaults on the complainant, the applicant was abusive and ranting, and shortly after became violent.[6] The prosecution pointed to the fact that nine firearms had been found in the applicant’s house and that the trafficable quantity is three firearms.
[6]Statement of Brodie Wishart, p 1.
The applicant’s history of alcohol abuse
It was argued that the applicant has a long-standing history of alcohol abuse. Of relevance to the events that occurred is that it is alleged he had been drinking at the hotel in the hours preceding the violent incident for which he been charged and now faces the Court. The complainant asserts that when he returned home on the night of the events occurring that he was ‘trashed, as in drunk’.[7] The prosecution pointed to 10 years of alcohol abuse.
[7]Statement of Brodie Wishart, p 1.
The complainant’s attitude to the applicant
The complainant remains fearful of the applicant and believes that he intends to carry out the threats over which he has been charged. Despite her living at an undisclosed location, she fears the applicant will locate where she lives. I am told that she lives in a regional city which is some considerable distance from where it would be proposed the applicant would reside if he was granted bail.
Discussion
The allegations of personal violence by the applicant are serious, in a domestic setting, where it is suggested that the applicant lost control of his emotions and assaulted and threatened to kill his wife. Similar types of such conduct have occurred previously. The history of the applicant demonstrates that he has lost control on previous occasions, and appears to have a tendency to make threats of a serious nature against people.
Further, there were firearms and ammunition at his disposal at the time of the alleged events. It is significant to an assessment of the seriousness of the surrounding circumstances that there were multiple firearms present at the premises. Threats to kill, if it is accepted they were made, occurred in the context of the firearms in close proximity. It is alleged these threats were to his wife, and also made towards her parents. It is further alleged that on a separate occasion the applicant had made threats of a similarly serious nature to a relative of the complainant, David Ewen.
Further, the applicant faces charges concerning the possession and manufacture of a significant number of firearms. These allegations must be regarded as a serious example of such offending. It is noted that it is intended that the applicant will enter pleas of guilty to this particular offending at the hearing listed for early March 2018.
There was no evidence before me as to whether the firearms were operative, or capable of being so. What purpose and motivation lay behind the possession and manufacture of the firearms is also not a matter I am in a position to assess. The resolution of these two questions must be best left to the Magistrate who will hear the pleas of guilty in these matters in the near future, and be presented with a fuller picture of the circumstances. Resolution of these issues will be highly relevant to the question of an eventual disposition.
In summary however, it can be comfortably observed that the allegations concerning the possession and manufacture of the firearms represent, in my view, an example of serious offending. I note that the charges in respect of the manufacture of the firearms allege activity between dates which are months apart. I also note the submission made, on instructions, that the activities with respect to the manufacture of firearms amounted to a ‘hobby’ enjoyed by the applicant. That question will also be best left to a Magistrate to decide in due course.
The criminal history of the applicant, although not extensive, includes past offending of a violent nature, as well of a threatening nature. The present offending is alleged to have occurred when the applicant was affected by alcohol and demonstrating significant volatility.
The resolution of the charges before the Magistrates’ Court are listed to take place in the first week of March 2018. Accordingly, the matters should be resolved within the next month.
In this application it is common ground that the applicant must show cause why his detention in custody is not justified, Parliament has seen fit to qualify the presumption of bail set out in s 4 of the Act, in circumstances of some of the types of offending alleged in the charges the applicant faces.
The approach to be taken in assessing the question of the applicant’s requirement to ‘show cause’, was clearly set out by Maxwell P in Re Fred Joseph Asmar.[8] By way of example, the learned President’s approach was subsequently followed by Lasry J in Re Application for bail by JF.[9] The approach adopted in both cases confirms that the only question to be answered is whether the applicant has shown cause pursuant to s 4(4) of the Act, but that importantly, ‘unacceptable risk’ issues are not to be excluded from that consideration, and remain central to whether a person’s pre-trial detention is justified.
[8][2005] VSC 487.
[9][2017] VSC 139.
In my opinion the applicant has failed to show cause, as required by the Act. As part of that assessment I have had regard to the risk factors relevant to the question of unacceptable risk. In my view there is an unacceptable risk that the applicant, if released on bail, will commit an offence, or offences, whilst in bail, or interfere with witnesses, namely the complainant, or her parents.
This application for bail has come late in the piece. There are only three to four weeks until these matters will be resolved in the Magistrates’ Court. To my mind, future delay until the proceedings are resolved is, in the circumstances of this particular case, not a factor that weighs heavily in support of this application. It is plainly to be acknowledged that the applicant has been in custody for 12 months, awaiting the final resolution of the charges. As such this is not a case that falls into the more common category of cases where there will be significant delay leading up to a hearing. Here such delay as there has been has already occurred. I am not informed clearly as to why there were apparent delays in the making of a bail application in the lower court, and then to this Court, however, the fact of the matter is that a delay has now occurred. I do not take the view that the period so far spent on remand should be regarded as a form of ‘credit’ that should be taken into account as a significant factor in this application.
Further, beyond submitting that the case involving the allegations of violence is a case of ‘word on word’, in my opinion it cannot be reasonably put that the prosecution case is weak. These two factors are often argued to weigh heavily in favour of a grant of bail but they are absent in this application.
As to the imposition or conditions on a proposed grant of bail to reduce risk to a point where it would reach an acceptable level, I am not of the view that in the circumstances of the background of this applicant, and in the circumstances of the particular offending alleged, that sufficient conditions can be imposed to address that risk. The applicant has a history of volatility, associated with a demonstrated capacity and willingness to issue threats of serious violence. At least one of those alleged threats has been made towards a close relative of the complainant in circumstances where it appears clear enough that the applicant knows where that person resides. The complainant herself alleges fear that the applicant can establish where she is currently residing.
I have weighed the evidence before me and given careful consideration to the arguments put before me by Counsel for both the applicant and the respondent. In my opinion the applicant has not shown cause why he should be granted bail.
Accordingly I refuse the application for bail.
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