Sanchez v Director of Public Prosecutions
[2013] VSC 707
•13 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
SC R 2013 0199
IN THE MATTER of the Bail Act 1977 (Vic)
IN THE MATTER of an Application for Bail by ANTONIO SANCHEZ
Between:
| ANTONIO SANCHEZ | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November & 2 December 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
DATE OF REASONS: | 16 December 2013 | |
CASE MAY BE CITED AS: | Sanchez v DPP | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 707 | |
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CRIMINAL LAW - Application for bail – Applicant initially bailed on charges of stalking, breach of family violence order (“FVO”), burglary and theft – Further offences of aggravated burglary, carrying unregistered firearm, threat to inflict serious injury, stalking and breach of FVO allegedly committed whilst on bail – Whether applicant has shown cause why detention not justified – Whether respondent has shown unacceptable risk of offending on bail – Delay – If not granted bail, applicant will spend about 21 months in custody before trial – Alleged weaknesses in some aspects of prosecution case – Residence – Employment – Counselling – Surety – Bail granted with surety of $10,000 and on conditions including curfew, daily reporting and weekly counselling.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Kounnas | Jay & Co Barristers and Solicitors |
| For the Respondent | Ms D Piekusis | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Antonio Sanchez (“the applicant”) applies for bail in respect of two separate sets of charges. The application is opposed by the Director of Public Prosecutions (“the respondent”).
As to the first set of charges, on 14 November 2012, Mr Sanchez was charged by Detective Jason Fritzlaff with stalking Lareesa Kirpichnikov[1] (between 1 September and 13 November 2012) and, in the alternative, with six separate contraventions of a family violence order[2] (“the FVO”) during the same period, as well as with burglary,[3] theft[4] and, in the alternative, another contravention of the FVO[5] (on 21 August 2012).
[1] Contrary to s 21A of the Crimes Act 1958 (Vic).
[2] Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
[3] Contrary to s 76 of the Crimes Act 1958 (Vic).
[4] Contrary to s 74 of the Crimes Act 1958 (Vic).
[5] Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
The same day, Mr Sanchez made an unsuccessful “in-person” application for bail before Mr Connellan M. Subsequently, on 12 December 2012, Mr Sanchez was granted bail by Mr Barrow M on strict conditions, including a surety, daily reporting to police and a night curfew.
As to the second set of charges, on 10 January 2013, Mr Sanchez was charged by Detective Adam McNamara with aggravated burglary,[6] carrying an unregistered firearm as a prohibited person,[7] threatening to inflict serious injury to Valera Hanin[8] and assaulting Mr Hanin[9] (all on 23 December 2012) and stalking Ms Kirpichnikov[10] and, in the alternative, contravening a family violence order[11] (both on 9 January 2013).
[6] Contrary to s 77 of the Crimes Act 1958 (Vic).
[7] Contrary to s 5(1)(A) of the Firearms Act 1996 (Vic).
[8] Contrary to s 21 of the Crimes Act 1958 (Vic).
[9] Contrary to s 23 of the Summary Offences Act 1966 (Vic).
[10] Contrary to s 21A of the Crimes Act 1958 (Vic).
[11] Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
On 25 February 2013, Mr Sanchez was refused bail by Mr Raleigh M on the new charges. His Honour also revoked bail on the older charges.
On 2 July 2013, Mr Reynolds M found that new facts and circumstances had arisen and therefore entertained a further bail application on both sets of charges, but his Honour ultimately refused bail.
On 17 September 2013, Mr Sanchez was committed for trial in the County Court on all charges for indictable offences except the burglary and theft of 21 August 2012. (The charges for summary offences, bar one, were transferred to the same court under s 125 of the Criminal Procedure Act 2009 (Vic).) The burglary and theft and the alternative summary charge were withdrawn when a witness to the incident, Johan Bolivar, made a further statement implicating himself and Mr Sanchez in the burglary and theft. I was advised that the respondent intends to indict Mr Sanchez directly on the burglary and theft. The committing magistrate Mr Maxted refused Mr Sanchez's application for bail on the remaining charges.
The trial is listed for ten days in the County Court commencing 10 September 2014. Accordingly, if the trial commences on that date, Mr Sanchez, if not granted bail, will have spent around 21 months in custody before his matters are completed.
Materials and evidence
Mr Sanchez filed affidavits sworn by Esan Velupillai (his solicitor), Jorge Jose Ramos (his brother) and Gladys Canales (his mother). Mr Ramos also gave sworn viva voce evidence, as did Elizabeth Dikranian (his sister).
The respondent filed an affidavit sworn by Stephanie Clancy (a solicitor at the Office of Public Prosecutions with the carriage of this matter) and handed up transcript of the evidence of Mr Hanin at the committal hearing, a photograph of is said to be a small imitation pistol seized from Mr Sanchez's premises and a report of psychologist Dr Greg Asher, which was relied on by the applicant at a previous bail application. Exhibited to Ms Clancy's affidavit were inter alia the charges, police summaries of the alleged offences, a report by Detective McNamara explaining his opposition to bail, statements of a witness (and now co-accused) relating to the alleged burglary of 21 August 2012, and Mr Sanchez’s prior convictions.
History of relationship
Mr Sanchez was previously in a de facto relationship with Ms Kirpichnikov. They worked together in a cleaning business. The relationship lasted about nine years during which Mr Sanchez and Ms Kirpichnikov had two children together, a boy and a girl. The relationship ended in July 2011.
In September 2011, Mr Sanchez followed Ms Kirpichnikov in a car and attempted to force her from the road. Ms Kirpichnikov drove to her address in Beaconsfield and fled inside. Mr Sanchez tried to follow her inside, where a physical confrontation occurred between him and Ms Kirpichnikov’s brother. As a result of charges arising out of this incident, on 9 January 2012, Mr Sanchez received an aggregate sentence of six months’ imprisonment, wholly suspended for 12 months, for stalking Ms Kirpichnikov and recklessly engaging in conduct placing her in danger of serious injury, as well as a community corrections order (“CCO”) for recklessly causing injury to and assaulting her brother.
Also on 9 January 2012, a full FVO was made by Dandenong Magistrates’ Court, which prohibits Mr Sanchez from contacting Ms Kirpichnikov and from committing family violence against her, including attempting to locate or follow her or keep her under surveillance. The order is active until 2019.
Summary of prosecution case on Detective Fritzlaff’s charges
A summary of the prosecution case on Detective Fritzlaff’s charges follows:
Charges 2-4 – Burglary, theft and breach of FVO[12]
[12] These were the charges withdrawn at the committal hearing.
On 21 August 2012, Mr Sanchez and Mr Bolivar drove to Ms Kirpichnikov’s residential address in Beaconsfield. No one was home. Mr Sanchez entered the house by unknown means. He took items of jewellery he had bought for Ms Kirpichnikov during their relationship. He also took items of jewellery belonging to Ms Kirpichnikov’s mother, and a Playstation and stereo face unit belonging to Ms Kirpichnikov’s brother. Mr Sanchez then used keys that he had located in the brother’s bedroom to drive a Toyota Hilux vehicle, purchased during the relationship, from the residence. Prior to leaving, Mr Sanchez removed a vacuum cleaner from the Toyota Hilux and gave it to Mr Bolivar.
Charge 5 – Breach of FVO
On 20 September 2012, at approximately 7:00 a.m., Mr Sanchez attended Ms Kirpichnikov’s address in Beaconsfield. He gained entry to the house by unknown means and entered Ms Kirpichnikov’s bedroom. He stood at the foot of her bed until she woke up and then started asking her questions about where her vehicle was being serviced and accusing her of being in a relationship with the mechanic. Whilst at the address, Mr Sanchez looked through personal papers belonging to Ms Kirpichnikov before eventually leaving through the bathroom window.
Later that same day, Mr Sanchez went to a car servicing workshop in Clayton, where Ms Kirpichnikov’s car was being serviced, and asked the mechanics questions about the car.
Charge 6 – Breach of FVO
On 28 September 2012, at approximately 10:25 p.m., Mr Sanchez attended the same Beaconsfield address, where he knocked on the doors and windows in an attempt to wake Ms Kirpichnikov. She awoke and alerted her parents, who were asleep in their bedroom. When Ms Kirpichnikov’s mother opened the front door, she saw Mr Sanchez standing at the door and told him to leave.
Charge 7 – Breach of FVO
On 8 October 2012, Ms Kirpichnikov was a passenger in her brother’s Toyota Hilux. When they stopped at traffic lights in Hampton Park, Mr Sanchez pulled up alongside them in a Ford Focus sedan. Mr Sanchez then followed Ms Kirpichnikov, by driving alongside her and closely behind her until Webb Street, Narre Warren, where they had to stop at a red light. At the red light, Mr Sanchez got out of his car and abused the brother for driving the Toyota Hilux. The lights turned green and Mr Sanchez then followed Ms Kirpichnikov to the front of the Narre Warren Police Station.
Charge 8 – Breach of FVO
On 23 October 2012, Ms Kirpichnikov had just collected her children from school and was driving home when Mr Sanchez rode up alongside her on a motorbike. He then followed her to her grandmother’s address in Narre Warren and into the drive way. He left only when Ms Kirpichnikov’s father came out of the house and told him to leave.
Charge 9 – Breach of FVO
On 7 November 2012, Ms Kirpichnikov was at an address in Wantirna South with her two children. She was there to clean the house for the owner, Wasgen Dikranian, who is known to her and Mr Sanchez. At approximately 1:27 p.m., Mr Sanchez arrived at the address and started knocking on the front door. Ms Kirpichnikov saw him at the front door and started closing curtains so that he could not see her or the children in the house. When there was no answer, Mr Sanchez went around to the back of the house where he saw Ms Kirpichnikov closing some curtains. He then forced entry into the garage of the premises and briefly turned off the power to the house. He then used his mobile phone to ring Ms Kirpichnikov repeatedly. Ms Kirpichnikov rang her mother to tell her Mr Sanchez was at the address and police were notified. Mr Sanchez left before police arrived.
Charge 10 – Breach of FVO
On 12 November 2012, at approximately 3:23 p.m. and 3:25 p.m., Mr Sanchez rang Ms Kirpichnikov on her mobile phone. She answered the second call, told him not to ring her again and hung up. He then rang her 24 times within the next 45 minutes.
Charge 1 – Stalking
In the alternative to Charges 5-10, the prosecution alleges that the events giving rise to those charges amount to stalking. During the relevant period, Ms Kirpichnikov was very scared for her, and her children’s, safety. She had trouble sleeping at night and was constantly locking her door. She would not leave home without someone accompanying her and is seeing a counsellor.
Arrest and interview
On 25 October 2012, Mr Sanchez was interviewed in relation to the burglary at Beaconsfield on 21 August 2012. He denied any knowledge of the burglary or theft and denied speaking to Mr Bolivar that day. He was released pending further inquiries.
On 14 November 2012, Mr Sanchez was interviewed on the remaining charges. He denied all allegations but admitted being at the Wantirna South address on 7 November 2012. He said he had turned up out of the blue to see Mr Dikranian but denied forcing entry to the garage or turning off the power.
Summary of case on Detective McNamara’s charges
A summary of the prosecution case on Detective McNamara’s charges follows:
Charges 1-4: Aggravated burglary, carrying an unregistered firearm, threatening serious injury and assault
On the morning of 23 December 2012, Mr Sanchez attended at the Oakleigh address of Ms Kirpichnikov’s sisters. At the time, all occupants of the address were away camping. Mr Sanchez broke the lock and handle from a rear security door and took the entire door off its hinges. He then entered the laundry and located a crow bar and used this to force open the door to one of the bedrooms. Once inside the bedroom, Mr Sanchez moved the bed, pulled out all the drawers and rifled through the occupant’s personal items.
At about the same time, Valera Hanin (a brother-in-law of one of the occupants) attended the address to water the garden as previously arranged with the occupants. Whilst in the back yard, Mr Hanin could hear noise coming from the rear bedroom and presumed one of the occupants had remained at home. He then went to the front door and started knocking. When there was no response, he then knocked on the side of the house near the rear bedroom. At this point, Mr Hanin could still hear noise from within the room. Mr Hanin then returned to the front door and from there saw Mr Sanchez walk from the side of the house to the front.
Mr Hanin and Mr Sanchez had a short conversation on the front veranda. Mr Sanchez pushed Mr Hanin and said, “You shouldn’t be here.” Mr Hanin threatened to phone police. Mr Sanchez knocked the phone from Mr Hanin’s hand. After a short scuffle, Mr Hanin retrieved the phone. Mr Sanchez then said, “You don’t want to get involved in this, I’ve been to gaol and met people and if you make a statement they will come after you.” He also said, “If you make a statement, I will come after you and your family.” Mr Sanchez then said he had a gun and pulled out what Mr Hanin described as a short pistol with a square shaped black barrel. Mr Sanchez pointed the gun at Mr Hanin’s waist for a short time and then returned it to his back pocket.
During the conversation with Mr Hanin, Mr Sanchez said, “She owes me 80 grand” and “If she wasn’t the mother of my kids she’d be dead for what she’s done to me.” Mr Hanin assured Mr Sanchez he would not contact police. Mr Sanchez left. As a result of the threats made towards him and his level of fear, Mr Hanin did not tell anyone about the confrontation until 7 January 2013.
Charges 5 & 6: Stalking & breach FVO
On 9 January 2013, Ms Kirpichnikov and her two children were at a friend’s house in Narre Warren South. At about 5:30 p.m., Mr Sanchez attended the location, knocked on the front door and had a conversation with the house owners, during which he requested to speak to Ms Kirpichnikov. Mr Sanchez was told Ms Kirpichnikov did not want to speak to him, and he left. Ms Kirpichnikov felt sick in the stomach and was shaking in fear of what might happen. Prior to attending the address, Mr Sanchez had knocked on neighbours’ doors in an attempt to locate Ms Kirpichnikov.
Arrest and interview
On 10 January 2013, Mr Sanchez was arrested at the Endeavour Hills Police Station and a recorded interview was conducted. He denied all allegations put to him. The same day, at Mr Sanchez’s home address, police found in his bedroom a small imitation pistol (which is a cigarette lighter).
Opposition to bail
In order to be granted bail, Mr Sanchez must show cause why his detention in custody is not justified. There are three reasons. First, he is charged with stalking and has a prior conviction for stalking within the last ten years.[13] Secondly, he is charged with aggravated burglary.[14] Thirdly, he is charged with indictable offences alleged to have been committed whilst on bail for another indictable offence.[15]
[13] See s 4(4)(b)(i) of the Bail Act 1977 (Vic).
[14] See s 4(4)(c) of the Bail Act 1977 (Vic).
[15] See s 4(4)(a) of the Bail Act 1977 (Vic).
The respondent opposes bail on two bases. First, Ms Piekusis, who appeared for the respondent, submitted that Mr Sanchez has failed to show cause why his detention in custody is not justified. Secondly, she submitted that, in any event, Mr Sanchez’s history, including his being charged with new matters whilst on bail,[16] is such that there is an unacceptable risk that he would commit offences whilst on bail.[17]
[16] See s 4(3)(c) of the Bail Act 1977 (Vic).
[17] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
Mr Kounnas, who appeared for the applicant, relied on the 21-month delay, alleged weaknesses in the prosecution case,[18] evidence from the applicant’s siblings and the availability of strict bail conditions[19] as matters in combination showing cause why his detention in custody is not justified and as defeating the argument that any risk of offending on bail is unacceptable.
[18] See s 4(3)(d) of the Bail Act 1977 (Vic).
[19] See s 4(3)(f) of the Bail Act 1977 (Vic).
Delay
Mr Kounnas accepted that, if convicted of both sets of matters following a trial, if the suspended sentence imposed in January 2012 were restored and if he were also re-sentenced on the matters the subject of the CCO, Mr Sanchez would receive a total effective sentence resulting in an immediate gaol term with a non-parole period. He submitted, however, that there is a real possibility that such a sentence would involve a non-parole period well short of the 21 months or so that Mr Sanchez will have served if the trial were to commence in September 2014. He also pointed out that the delay may well be longer than that, as experience tells that the County Court’s lists are sometimes so full that even the trials of those in custody are sometimes not reached on the scheduled trial date and instead are adjourned off for several months. Finally, he noted that there is likely to be a plea of guilty to the summary charges of breaching the FVO, which would also reduce any sentence imposed.
Ms Piekusis submitted that the non-parole period would well exceed 21 months. She emphasized the applicant’s prior convictions, the fact that the new offences were committed in breach of a six-month suspended sentence and the CCO, the fact that the offences charged by Detective McNamara were committed whilst on bail, the seriousness of the offending generally and the types of sentences ordinarily imposed for aggravated burglary and stalking.
It is difficult to forecast the type and length of sentence that might be imposed following a trial as the sentencing facts are not known and the plea in mitigation has not been heard. Further, given that sentencing involves the exercise of a discretion and judgment, there is no single correct sentence in any case.
That said, it seems to me open to say that, if convicted of both sets of charges after a trial and the suspended sentence were restored and he were re-sentenced on the charges the subject of the CCO, Mr Sanchez might receive a non-parole period well short of 21 months. As Ms Piekusis conceded, neither the burglary nor the aggravated burglary charged involves an intention to assault anyone or any person being present in the premises at the time of entry. Rather, in each case, the intention alleged is to steal and, in the second case, the burglary becomes an aggravated burglary only because of the possession of an imitation firearm that is a cigarette lighter. Burglaries and aggravated burglaries of the types alleged here usually do not result in anything like the sentences imposed for those involving confrontations with persons in the premises and/or intent to assault such persons. Further, the events relied on to establish stalking in the present case, whilst serious enough, are such that the charges could have been dealt with in the Magistrates’ Court. Indeed, as I understand it, all charges other than the aggravated burglary could have been heard in the Magistrates’ Court. Ms Piekusis is right to emphasize the applicant’s prior convictions, the breach of bail and the breach of a suspended sentence and a CCO as well, but I am of the view that, allowing for all matters known at present, a judge hearing a plea after a trial could come to the view that a non-parole period well short of 21 months should be imposed.
Strength of prosecution case
Mr Kounnas submitted that two aspects of the prosecution case were weak.
First, he pointed to the withdrawal of the burglary and theft charges of 21 August 2012 at the committal hearing. However, as indicated above, the respondent has made clear that those charges will be the subject of a direct indictment.
On the other hand, if there be any relevant weakness in the case on those charges, it may well be in whether there was an intention to steal at the time of entry to the premises, which burglary necessarily requires. In his first statement, Mr Bolivar said Mr Sanchez told him he went to the house to collect some of his (own) property and that he did in fact collect a vacuum cleaner. Even in his second statement, Mr Bolivar said Mr Sanchez said he was taking things from within the house for which he had paid. This was also in the context of an asserted belief of Mr Sanchez that Ms Kirpichnikov was attempting to sell his motor car against his wishes.
Secondly, Mr Kounnas submitted that there were weaknesses in the case on the aggravated burglary and related charges of 23 December 2012. First, he said it was significant that Mr Hanin did not complain to police until over two weeks after the incident. Secondly, in his first statement, Mr Hanin said the incident occurred at 9:45 a.m. in Oakleigh. Yet, at 9:50 a.m., Mr Sanchez was reporting on bail at Endeavour Hills Police Station. It would not be possible to get from Oakleigh to Endeavour Hills in five minutes. Thirdly, Mr Sanchez has an alibi witness who will say that he was with him most of that morning anyway (from something like 8:15 a.m. to 10:15 a.m.). Fourthly, it is asserted that, once that alibi was made known to police, Mr Hanin changed his account, now saying it occurred at 9:15 a.m. (which probably would allow enough time to get from Oakleigh to Endeavour Hills). However, Detective McNamara has notes of a conversation with Mr Hanin on 9 January 2013 (before the applicant was charged) in which he said the incident occurred at 9:15 a.m. The remand summary and the police interview also refer the earlier time. On the other hand, Mr Hanin said in re–examination at the committal hearing that the only time Detective McNamara asked him whether he was sure about the time of the incident was in May, at which time he checked his telephone records and then altered his account. Ms Piekusis argued that Mr Hanin must be mistaken about the date of that conversation. Fifthly, Mr Kounnas argues that Mr Hanin’s description of the weapon does not match the imitation handgun, which is really a cigarette lighter, discovered at Mr Sanchez’s premises subsequently. Ms Piekusis handed up a photograph of the item seized. It arguably would have the look of a handgun at a glance and when partially covered by a hand, albeit it appears to be very small when regard is had to the iPad adaptor beside which it is photographed.
While John Mortimer had Horace Rumpole saying that nothing sinks faster than a cast iron alibi, in light of the foregoing, it is plain that there will be important matters of credit that a jury will have to determine before they could be satisfied beyond reasonable doubt that Mr Sanchez committed the offences charged relating to the alleged aggravated burglary.
Further, if the jury is satisfied Mr Sanchez was present and entered the premises, there still may be difficulties with proof of an intention to steal in circumstances where it is not alleged that anything was stolen and it is also alleged that Mr Sanchez complained to Mr Hanin that his ex-partner owes him $80,000.
In those circumstances, whilst I am not prepared to conclude that the prosecution case should be classified as “weak”, I am satisfied that it is not a strong case on the charges discussed.
If the applicant were acquitted of the burglary and aggravated burglary and related charges, a judge might well impose a total effective sentence the non-parole period or immediate custodial component of which would not exceed the period of time the applicant has already spent in custody (i.e. about 12 months).
Conclusion on whether applicant has shown cause
In view of my conclusions about the 21-month delay and the potential difficulties with the prosecution case on some charges, I am satisfied that Mr Sanchez has shown cause why his detention in custody is not justified.
Unacceptable risk of offending whilst on bail
The far more difficult question is whether the respondent has shown that Mr Sanchez presents an unacceptable risk of committing an offence if released on bail.
As I have mentioned, I heard sworn evidence from Mr Sanchez’s siblings Mr Ramos and Ms Dikranian. Mr Ramos is married with children. He works as a sub-contractor in boiler making and welding for Genius Steel Pty Ltd. He believes he has about five years’ work with the organization. He is able to employ Mr Sanchez full-time on a minimum wage. His work is currently in Sunshine and Bundoora on weekdays, and in Truganina with a different organization on Saturdays. He does not work in Oakleigh or Endeavour Hills. He is also prepared to offer his brother the opportunity of studying as an apprentice at a TAFE, after hours. He would pick up Mr Sanchez on his way to work early each morning and take him home in the evenings. Mr Sanchez would be living at their mother’s house. Mr Ramos also undertook to me that, if he became aware of Mr Sanchez breaching any of his bail conditions, he would advise the police. Mr Ramos has visited his brother in custody. He believes Mr Sanchez understands that, if released on bail, he must not contact Ms Kirpichnikov and that he could only contact his children after taking the appropriate legal action.
Ms Dikranian is married with children. She works as a beauty therapist and also trains others in that area. She has told Mr Sanchez that, if he were released on bail but breached his conditions, she would be the first to contact police, which she promised to the Court to do. She said that, when not working with their brother, Mr Sanchez would be kept busy by the rest of the family, including in the care of their mother. Their mother has found it difficult being alone. Before he went into custody, Mr Sanchez had been living with their mother and taking on quite a bit of her care. Ms Dikranian has also visited her brother in custody. She believes he understands that he must not have any contact with Ms Kirpichnikov and is now capable of abiding by that condition. She explained that there were times when Ms Kirpichnikov would contact her brother but, in her view, he is now capable of ignoring any such contact and refraining from responding. She also explained that her brother worked hard in the cleaning business with Ms Kirpichnikov for several years, and that the business did very well.
Ms Piekusis relied on the following matters as demonstrating an unacceptable risk of offending whilst on bail.
First, in August 2010, Mr Sanchez received an adjourned undertaking to be of good behaviour for breaching a family violence safety notice. (He also has a prior appearance for failing to appear on bail. But Ms Piekusis did not emphasize this in any serious way, as the respondent’s concerns were not as to his failing to appear at trial but rather as to the risk of his offending whilst on bail.)
Secondly, as indicated above, on 9 January 2012, Mr Sanchez received an aggregate sentence of six months’ imprisonment, wholly suspended for 12 months, for stalking Ms Kirpichnikov and recklessly engaging in conduct placing her in danger of serious injury, as well as a CCO for recklessly causing injury and assault.
Thirdly, despite being subject to those orders, it is alleged by Detective Fritzlaff that Mr Sanchez has stalked Ms Kirpichnikov by breaching the FVO on multiple occasions between August and November 2012. As indicated above, one of those occasions involved Mr Sanchez entering Ms Kirpichnikov's house and standing at the end of her bed and then questioning her about a car and accusing her of being in a relationship with a mechanic. Whilst there was no actual violence in this alleged behaviour, it has a disturbing element and must have been terrifying for Ms Kirpichnikov. On other occasions he defied the FVO by approaching Ms Kirpichnikov, telephoning her and, on one occasion, turned off the power inside her house and rang her repeatedly.
Fourthly, despite being bailed on strict conditions, including with a surety, daily reporting to police and a curfew, Detective McNamara alleges that, within a month, Mr Sanchez breached the FVO and his conditions of bail by approaching Ms Kirpichnikov yet again. Further, it is alleged that he breached bail by committing the aggravated burglary and related offences, including threatening Mr Hanin with serious injury.
Fifthly, Ms Piekusis submitted that, despite the evidence of Mr Ramos and Ms Dikranian, it must have been apparent to Mr Sanchez when released on a suspended sentence and a CCO previously in January 2012, and again when released on bail in December 2012, that he was not to contact Mr Kirpichnikov, and that I should not have confidence that things have changed in that regard.
Sixthly, Ms Piekusis also pointed out that I am required to take into account the attitude of the alleged victim of an offence to the grant of bail.[20] Ms Piekusis advises, and I accept, that Ms Kirpichnikov is frightened and therefore opposes bail.
[20] See s 4(3)(e) of the Bail Act 1977 (Vic).
Seventhly, Ms Piekusis submitted that, despite the fact that the previous grant of bail included some independent support though the “CISP” programme, Mr Sanchez still came to the attention of police. Further, Dr Asher, whose report was tendered by the applicant on an earlier bail application, proffered the view that, if Mr Sanchez underwent regular counselling upon his release, he would “retain the clarity he needs to avoid reoffending”. The applicant did not put forward any regime of that nature at the hearing on 29 November 2013.
Mr Kounnas accepted that Mr Sanchez’s history shows that there is some risk of offending whilst on bail. However, he relied on the evidence of Mr Ramos and Ms Dikranian as showing that any risk of reoffending is reduced to a level that is acceptable. Mr Sanchez would be busy working and caring for their mother. Further, having visited him in gaol for nearly 12 months, they are of the view that he is capable of refraining from contacting his former partner. Moreover, both have undertaken to the Court to advise the police if their brother were to breach his bail conditions. Finally, Mr Kounnas submitted that any potential risk could be reduced further by the imposition of strict bail conditions, including a surety. He said that, whilst it may require a pooling of resources between Mr Sanchez’s siblings, a surety to the value of between $5,000 and $10,000 could be raised.
Further material
After the hearing on 29 November 2013, I adjourned the application for decision. Having considered the matter, I formed the view that I would not be prepared to grant bail unless, in addition to the conditions of the type previously in place and foreshadowed, there were now in place a regime of counselling of the type Dr Asher had suggested. I raised this view with the parties on 2 December 2013. The applicant’s solicitor Mr Vellupillai appeared on that date. He advised that the applicant consented to such a course but that he would need time to put something in place. Mr Tinney SC, who appeared for the respondent on the return date, did not object to that course. Accordingly, the matter was adjourned to 13 December to allow that to occur.
Subsequently, the applicant filed and served an affidavit sworn by Dr Asher. On 13 December 2013, Dr Asher gave sworn evidence before me. The gist of Dr Asher’s evidence is that he believes that counselling would assist Mr Sanchez in refraining from reoffending and in his rehabilitation. He was of the view that having someone independent with whom Mr Sanchez could discuss matters on a weekly basis would assist in that regard. He also opined that undertaking employment would be likely to be “very useful” in that regard as well. Dr Asher also undertook to report to the authorities any breach of bail conditions. Further, Mr Vellupillai indicated that Mr Sanchez was prepared to accept a bail condition directing him to attend counselling weekly with Dr Asher.
Conclusion on unacceptable risk
I accept that Mr Sanchez’s history shows that, if released on bail, there is at least some risk that he will try to contact his former partner in breach of the FVO and thereby commit an offence of the type he has allegedly committed in the past. The more difficult question is whether that risk is at a level that is unacceptable.
Whilst it is a close-run thing, on balance, I am not satisfied that there is an unacceptable risk of that type. I was impressed by the evidence of Mr Ramos and Ms Dikranian. They struck me as honest, hard-working people willing to give their brother the support he needs to refrain from contacting his former partner and thereby to comply with strict bail conditions. I accept their assessment that, despite his failings in the past, Mr Sanchez now has the resolve to comply with bail conditions. I am satisfied that spending the last 12 months in custody has had a salutary effect on Mr Sanchez. I also accept his siblings’ assurances that, if he were to breach his conditions of bail, they would advise the police.
I am also satisfied that the relevant risk is reduced further by the provision of weekly counselling with Dr Asher. Putting in place such a regime gives me added confidence that there will be a professional and detached person to whom Mr Sanchez can turn if he becomes frustrated with the process of seeking access to his children or is otherwise tempted to contact his former partner. I intend to make weekly attendance at such sessions a condition of bail. It was apparent from his answers in cross-examination that Dr Asher did not have a full appreciation of all of the allegations. He accepted that it would enhance his ability to treat Mr Sanchez if he had the police summaries of the allegations. I expect Mr Vellupillai to ensure that Dr Asher receives those summaries.
Finally, I accept that the surety and all of the other conditions of bail I propose to fix will go some way to reducing the risk of committing an offence whilst on bail.
Conclusion and orders
Thus, for the reasons I have given, I am satisfied that Mr Sanchez has shown cause why his detention in custody is not justified and I am not satisfied that there is an unacceptable risk that, if released on bail, he would commit offences.
Accordingly, I propose to release Mr Sanchez on bail with a surety in the amount of $10,000 with the following conditions, namely that he must:
1. report to the officer in charge of Endeavour Hills Police Station, or his or her nominee, each day between the hours of 5:00 am and 8:30 p.m.;
2. reside at 12 Heathmore Crescent in Endeavour Hills;
3. not leave his place of residence between the hours of 9:00 p.m. and 5:00 a.m. except in the company of an adult member of his family;
4. notify the informants Detective McNamara and Detective Fritzlaff or their nominees within 24 hours of any proposed change of address;
5. not contact any co-accused or any witnesses for the prosecution other than the informants;
6. not contact Lareesa Kirpichnikov unless through a legal practitioner for the purposes of family law proceedings;
7. engage in counselling sessions with Dr Asher (or his nominee) once per week; and
8. appear at the County Court on 12 February 2014 and thereafter as directed by that court.
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