Smith v Director of Public Prosecutions
[2014] VSC 60
•20 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
SC R 2013 0217
IN THE MATTER of the Bail Act 1977 (Vic)
IN THE MATTER of an Application for Bail by DREW SMITH
Between:
| DREW SMITH | Applicant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 December 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
DATE OF REASONS: | 3 March 2014 | |
CASE MAY BE CITED AS: | Smith v DPP | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 60 | |
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CRIMINAL LAW - Application for bail – Whether applicant has shown cause why his detention is not justified – Whether respondent has demonstrated an unacceptable risk that, if released on bail, the applicant would fail to appear at trial, commit an offence whilst on bail, endanger the safety or welfare of members of the public and/or interfere with witnesses – Bail granted with surety of $5,000 and on conditions including curfew, twice-daily reporting and prohibition on driving car.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Glynn | Robert Stary Lawyers |
| For the Respondent | Ms W Duncan | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 19 December 2013, I heard an application for bail by Drew Smith (“the applicant”) in respect of 56 charges of criminal offences. The application was opposed by the Director of Public Prosecutions (“the respondent”). Mr Glynn appeared for the applicant. Ms Duncan appeared for the respondent. On 20 December 2013, I granted the application and released the applicant on bail with a surety and on strict conditions including a curfew, twice-daily reporting and a prohibition on driving a car. At that time, I gave brief ex tempore reasons for my decision but indicated I would publish more detailed reasons at a later date. Those reasons follow.
History of the matter
The procedural history of the matter is set out in the affidavit (affirmed 19 December 2013) of Laura Stevenson, a solicitor with the Office of Public Prosecutions with the conduct of this matter on behalf of the respondent. In summary, that history is as follows:
On 14 March 2013, the applicant was charged with car theft and was bailed to appear at the Magistrates’ Court in Dandenong on 8 July 2013. He was aged 22 at that time and is now aged 23.
On 12 April 2013, the applicant drove to Queensland after evading Victorian police in a pursuit. On 15 April 2013, he was arrested in Queensland, charged with offences in that State and remanded in custody. On 17 July 2013, he pleaded guilty to various charges in the Magistrates’ Court at Warwick (in Queensland) and was sentenced to 18 months’ imprisonment with a non-parole period of six months, with 95 days of pre-sentence detention declared. On 11 October 2013, the applicant was granted parole by the relevant Queensland authority. The same day, by order of the Magistrates’ Court at Brisbane, the applicant was extradited to Victoria in the custody of Victorian police.
On 12 October 2013, the applicant was charged by Senior Constable Phillip Drews of Victoria Police with 11 offences, including arson (allegedly committed on 22 March 2013), aggravated burglary (5 April 2013), reckless conduct endangering life (12 April 2013) and several counts of theft of motor car.
On 15 October 2013, the applicant applied for bail before the Magistrates’ Court at Melbourne. The application was refused.
On 14 November 2013, S/C Drews laid a further 45 charges, including five further counts of arson (16 January, 4 and 11 February and 9 March 2013), several further counts of car theft and theft of other items, two further counts of reckless conduct endangering life and a count of burglary.
On 20 November 2013, the applicant made a second application for bail, on the basis of new facts and circumstances, before the same magistrate who had refused bail a month or so earlier. The application was adjourned to 22 November 2013 to allow the applicant to be assessed for a place in the Court Integrated Services Programme (“CISP”). On 22 November 2013, the application was adjourned part-heard until 2 December 2013. On the latter date, the application was refused. The magistrate considered that there was an unacceptable risk of further offending, endangering public safety and failing to appear, and that the applicant had failed to show cause why his detention was not justified.
At the time I granted bail, the next listing of the matter was to be on 24 February 2014, for a committal mention hearing in the Magistrates’ Court.
Summary of prosecution case
A detailed summary of the prosecution case was annexed to the affidavit of Ms Stevenson. Also annexed to that affidavit was a report by S/C Drews, which also summarized the alleged offences and detailed the informant’s reasons for opposing bail.
Very briefly, it is alleged that the applicant was involved with others in multiple car thefts, in stripping the cars for parts and/or stealing items from them, and then in dumping and sometimes burning the cars. It is also alleged that the applicant drove in a reckless manner during a police pursuit and that he had engaged in two particular spite-motivated acts of reckless conduct towards others.
The first of those latter acts is this: It is alleged that, in the early hours of 3 March 2013, the applicant smashed the window of a house in Narre Warren and threw an ignited signal flare into the house, which was occupied at the time by the ex-partner of the applicant’s girlfriend. The flare caused a fire in the house. These events give rise to Charge 26 (reckless conduct endangering life) and alternative charges.
The second is this: It is alleged that, in the early hours of 11 March 2013, the applicant discharged multiple nails from a nail-gun into the window of premises occupied by the victim of a car theft. The wheels from the victim’s car had allegedly been received by the applicant as stolen goods. That victim had sought to recover his car by using Facebook and had nominated the applicant as being involved in the theft. As I understood it, it is alleged that the applicant became aware of this fact and engaged in this behaviour as an act of revenge. These events give rise to Charges 12 (handling stolen goods) and 34 (reckless conduct endangering life) and related alternatives.
A striking example of an alleged stealing and burning of a car is as follows: It is alleged that, during the period 20 to 22 March 2013, after stealing a Nissan Patrol and removing tools and hardware from it, the applicant and others took the Nissan to an unoccupied house under construction in a new residential estate in Cranbourne West and parked it in the garage. A nine-kilogram gas bottle was taken from another car and placed in the rear of the Nissan. The valve of the bottle was opened. The Nissan was then set alight. The resulting fire destroyed both the car and the house. The house was valued at $200,000. The motive for destroying the car (and other cars) was said to be the destruction of evidence. That I understood. However, I could not quite understand how the destruction of the house was part of this alleged motive. In any event, these events give rise to Charges 1 (arson), 2 (theft of the Nissan) and 3 (theft of the tools and hardware).
Another example of the alleged offending is that it is said that, on 5 April 2013, after stealing a remote control from a station wagon parked outside a home in Mordialloc, the applicant and another used the remote control to open and enter the home via the garage in order to steal the car keys. Three sets of keys were stolen. While this was occurring, the occupants of the home were asleep upstairs. These events give rise to Charges 4 (aggravated burglary), 5 (theft of the keys) and 6 (theft of the station wagon).
The police pursuit charges arise in the following circumstances. Police allege that, on 12 April 2013, they saw the applicant driving a stolen Holden Commodore in Narre Warren. They tried to intercept the applicant but he drove away at high speed and would not stop. Police terminated the pursuit because of the danger presented by the applicant’s driving. These events give rise to Charge 9 (reckless conduct endangering life) and alternative charges.
Ms Duncan called S/C Drews to give sworn evidence in addition to his statement. S/C Drews said that he recovered photographs or stills from the applicant’s computer showing inter alia what he believes to be cars being burnt on 23 October and 6 December 2012, another stolen car and stolen car parts inside the applicant’s garage and the applicant present while a car is being burnt in the background at a place where several burnt out stolen cars had been found. It is intended to rely on this evidence as part of an argument as to tendency reasoning in respect of charges of stealing and burning cars.
In cross-examination by Mr Glynn, S/C Drews conceded:
a. that the evidence for some of the charges came solely from an alleged accomplice;
b. that the accomplice provided a major part of the evidence on the most serious charges (the arson of the car and house and related offences in Charges 1-3 and the aggravated burglary and related offences in Charges 4-6);
c. that there was no forensic evidence linking the applicant to the most serious charges;
d. that the accomplice made two statements that differed so markedly – including implicating people who were not in fact involved in offences – that police were considering charging him with making a false statement; and
e. that the accomplice’s account in relation to the theft of the Nissan preceding the arson was inconsistent with the account of the owner of the Nissan (and the informant accepted there was no reason to doubt the owner’s account).
As I understood S/C Drews’ evidence, he also conceded that the only admissible evidence against the applicant in relation to the flare incident was a possible motive; and that, in relation to the nail-gun incident, the only admissible evidence was motive and the fact that the applicant had access to a nail-gun. He did not dispute the suggestion that the applicant was driving back to Victoria at the time he was arrested in Queensland.
S/C Drews advised that the alleged accomplice was dealt with on similar charges to those laid against the applicant (other than the flare, the nail-gun and the police pursuit incidents or the arson of the house) and received a community corrections order. However, the alleged accomplice was aged only 20 and did not have an extensive criminal history.
Also annexed to Ms Stevenson’s affidavit was a list of the applicant’s prior criminal appearances, all of which occurred in the Magistrates’ Court. In May 2010 (when aged 20), the applicant received a sentence of six months’ detention in a youth training centre (“YTC”) for multiple car thefts and related offences. In July 2010, he received 44 days’ detention in YTC for multiple thefts and related offences. In May 2012, he received a community corrections order for 12 months for theft and driving offences. In October 2012, he received a fine for some minor driving offences.
Other evidence before the Court
In support of the application, Mr Glynn relied not only on S/C Drews’ concessions but also on the affidavit (sworn on 10 December 2013) of Katarina Ljubicic, the applicant’s solicitor. Annexed to that affidavit were a transcript of the bail hearing on 15 October 2013; an application by the informant for an extension of time of two months in order to compile the brief; a psychological report (dated 19 February 2010) on the applicant by George Tsironis; and an initial (favourable) assessment of the applicant by CISP (dated 20 December 2013). Also annexed was a written offer of employment to the applicant (dated 19 November 2013), but Mr Glynn advised that that offer was no longer relied on.
Mr Glynn also called the applicant’s father Andrew Theodoropoulos to give sworn evidence. Mr Theodoropoulos lives with his wife in Oakleigh. He said that, about a year earlier, his son’s partner had a stillbirth, which caused his son to “shut down”. They had little contact in the period that followed. (This period appears to have coincided with a good deal of the offending alleged.) However, since the applicant was extradited from Queensland, he and his wife had been in telephone contact with him about four times a week. He detected a “big change” in his son’s demeanour. His son was now keen to work and start a family. His son wants nothing to do with cars, which had been an interest of his since childhood. His son even wants to get rid of a car that they had been working on for some time. He explained that his son has suffered from Asperger’s Syndrome, which limited his ability to read social queues, but that he was now more aware of his limitations in that regard. He was also worried that his son was becoming more depressed in custody. Mr Theodoropoulos, who works full time, said he and his wife, who is at home full time, are prepared to have their son live with them. His son gets along very well with his grandparents, who live in the house over the back fence. His son’s girlfriend lives with her parents in Hampton Park. Mr Theodoropoulos said he was able to put up $5,000 as a surety. He promised that, if his son were released on bail, he would report him to the police if he believed he was re-offending or otherwise breaching bail conditions. He also promised that he would do what he could to ensure that his son attended any appointments that might be needed as a result of his bail conditions.
In cross-examination by Ms Duncan, Mr Theodoropoulos conceded that he and his wife had not seen their son whilst in custody but had only spoken to him by telephone. However, he indicated he could tell from conversations with him that his son had changed. He said he understood his son was taking medication for treatment of depression in custody but was not taking any medication in relation to Asperger’s Syndrome. He conceded that cars had been his son’s main interest in life but he reiterated that he believed his main interest now was to start a family. Mr Theodoropoulos said he has a car and would be able to drive his son to appointments. His wife also has a driver’s licence. He accepted that his son may not have been open with him in the past about drug use or other offending but he considered he was being honest with him now about his change in attitude and his motivation to start a family.
Opposition to bail
In order to be granted bail, the applicant had to show cause why his detention in custody is not justified. There were three reasons. First, some of the offences with which he was charged were indictable offences alleged to have been committed whilst on bail for the theft charge laid on 14 March 2013.[1] Secondly, he was charged with aggravated burglary.[2] Thirdly, he was charged with offences alleging the use of offensive weapons.
[1] See s 4(4)(a) of the Bail Act 1977 (Vic).
[2] See s 4(4)(c) of the Bail Act 1977 (Vic).
The respondent opposed bail on two bases. First, Ms Duncan submitted that, despite the expected delay of about 18 to 24 months until trial and some legitimate criticism of the prosecution case on some charges, the applicant had failed to show cause why his detention in custody was not justified. Secondly, she submitted that, in any event, there was an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; and/or interfere with witnesses.[3]
[3] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
In summary, Mr Glynn relied on the long delay until trial, alleged weaknesses in the prosecution case,[4] evidence from the applicant’s father as to residence and his son’s change in attitude and the availability of strict bail conditions[5] as matters in combination showing cause why the applicant’s detention in custody was not justified and as defeating the argument that, if there were any risks of the type alleged by the respondent, such risks were unacceptable.
[4] See s 4(3)(d) of the Bail Act 1977 (Vic).
[5] See s 4(3)(f) of the Bail Act 1977 (Vic).
Delay and weaknesses in the prosecution case
Mr Glynn accepted that, if convicted of all matters following trial (including the alleged arson of the house), the applicant would receive a total effective sentence resulting in an immediate gaol term with a non-parole period that may well exceed the two years or so that was thought likely to pass before a trial would be concluded. He submitted, however, that there was a real possibility that any sentence would involve a non-parole period well short of two years if the applicant were acquitted of some of the charges, particularly the charge of arson of the house.
He went on to submit that, in respect of several charges, including the arson of the house and the aggravated burglary, the prosecution case was weak – or at least not free of difficulty. Several of those charges depended to a greater or lesser degree on the evidence of the alleged accomplice. That witness suffered at least the following afflictions. First, he had given contradictory versions of who was present at the arson of the house. Indeed, based on these contradictory versions, police had investigated the possibility of charging the witness with making a false statement. Secondly, the same witness gave an account of the lead-up to an offence that was contradicted in a rather fundamental respect by the victim of the theft. Thirdly, as an accomplice, he would attract the usual warning that comes with being such a witness.
Ms Duncan accepted that those matters were relevant considerations but went on to point out other aspects of the case that, she submitted, made the case strong. Amongst other things, she pointed to the images recently discovered on the applicant’s computer. Included amongst them were photographs or videos of cars being burnt. S/C Drews had linked these images to other car thefts and arsons. As indicated above, he opined, and I accepted, that one piece of footage depicted the applicant in the foreground while a car was being burnt in the background.
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, there is no single correct sentence in any case.
That said, it seemed to me that Mr Glynn was correct to concede that, if convicted of all current charges after a trial, Mr Smith might receive a non-parole period in the order of 24 months. Equally, I accepted Mr Glynn’s submission that a non-parole period well short of that two-year period might be imposed were Mr Smith acquitted of the arson of the house but convicted of most or all of the other charges. I also accepted Mr Glynn’s submission that there were some weaknesses in the more serious charges. Indeed, on the current state of the evidence as explained to me, while it was fair to describe some aspects of the case as strong, it was also open to conclude – and I did – that the prosecution case on some charges, including the arson of the house and the aggravated burglary, was relatively weak and that the case on the flare and the nail-gun incidents was very weak.
In my view, subject to the question of unacceptable risk (to which I shall turn shortly), it is not acceptable for an accused person to spend two years in custody awaiting trial on charges that might well result in a sentence the non-parole period for which is substantially less than that two-year period. For those reasons alone, I was satisfied that the applicant had shown cause why his further detention in custody was not justified.
Unacceptable risk
The more difficult question was whether the respondent had shown that there was an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; and/or interfere with witnesses.
Whilst this did not appear to be the main basis for opposing bail, Ms Duncan relied on the nail-gun and flare incidents as demonstrating a preparedness to interfere with witnesses and endanger the safety or welfare of members of the public. However, Mr Glynn submitted, and I accepted, that it was difficult to see how those allegations could be established on the evidence presented thus far.
Ms Duncan relied on the applicant’s trip to Queensland, following the police pursuit, as demonstrating an unacceptable risk that he would fail to answer bail. Mr Glynn submitted that the informant’s concession that the applicant may well have been on his way back to Victoria put paid to that argument. That said, Ms Duncan rightly pointed out that there was only an assertion from the Bar table that the applicant was on his way back to Victoria rather than any evidence of that fact presented in the usual form. Mr Glynn also emphasized that the applicant had no history of failing to appear and indeed that he had ties to the jurisdiction, including his parents and his girlfriend (with whom he wished to have a family). Further, Mr Theodoropoulos was prepared to offer a surety of $5,000 which, for him, was a large amount of money.
This brings me to what I thought was the respondent’s best point. Ms Duncan relied on the nature and number of the alleged offences, the applicant’s behaviour in Queensland and the applicant’s prior history as demonstrating an unacceptable risk that he would commit an offence whilst on bail (such as stealing and burning cars) and endanger the safety or welfare of members of the public through such offending (whether by burning cars or fleeing police if detected or both). Mr Glynn submitted that the following matters ameliorated the relevant risk and indeed compelled the view that any such risk was not unacceptable:
a. evidence from the applicant’s father as to a stable residence, his son’s change in attitude and his preparedness to report any breach of bail or further offending to the authorities;
b. the deterrent effect that was likely to have resulted from spending six months in gaol in Queensland and a further two months in custody in Victoria;
c. the support and monitoring that would occur under CISP (a further CISP assessment was scheduled for 23 December 2013); and
d. the availability of strict bail conditions such as a curfew, reporting to police and a prohibition on driving.
Given the evidence before me, I accepted Ms Duncan’s submission that there was a risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; and/or interfere with witnesses. But mere risk is not the test. The relevant risk must be “unacceptable”.
On balance, when regard was had in particular to the very strict conditions I intended to impose (which, as will be seen, might be thought to be akin to house arrest), my acceptance of the evidence of the applicant’s change in attitude, his father’s preparedness to be a surety, the absence of any history of failing to appear and his ties to the jurisdiction, I was not persuaded that those risks were unacceptable. In substance, I accepted the submissions made by Mr Glynn on these matters and I was positively satisfied that the risks were not unacceptable. My conclusions in this regard added to my conviction that the applicant had shown cause why his further detention in custody was not justified.
Conclusion and orders
Thus, for those reasons, I was satisfied that the applicant had shown cause why his detention in custody was not justified and I was not satisfied that there was an unacceptable risk that, if released on bail, the applicant would fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; and/or interfere with witnesses.
Accordingly, after hearing from counsel on the precise terms of the conditions, I released the applicant on bail with a surety in the amount of $5,000 with the following conditions, namely that the applicant must:
1. report to the officer in charge of Oakleigh Police Station, or his or her nominee, twice each day – once between the hours of 6:00 a.m. and 10:00 a.m. and once between the hours of 3:00 p.m. and 6:00 p.m.;
2. reside at 5 Surrey Court, East Oakleigh;
3. not leave the abovementioned place of residence:
a. at all between the hours of 6:15 p.m. and 5:45 a.m.;
b. between the hours of 5:45 a.m. and 6:15 p.m. other than for the purposes of reporting to police, attending conferences with lawyers or appointments with other professionals connected with legal proceedings, attending to appointments in respect of the CISP programme, attending job interviews (if any), attending his place of employment (if any), attending court and attending medical appointments; and
c. between the hours of 5:45 a.m. and 6:15 p.m. unless in the immediate company of either or both of his parents;
4. not drive a motor vehicle of any kind;
5. attend the CISP Office at Melbourne Magistrates’ Court on 23 December 2013 for an interview;
6. comply with all requirements of the CISP programme as directed by those administering that programme;
7. not leave the State of Victoria;
8. surrender his passport or any other travel documents and not apply for any other such documents;
9. not attend any points of international departure;
10. not contact (whether directly or indirectly by any means including via social media) any co-accused other than Tessa Edwards;
11. not contact (whether directly or indirectly by any means including via social media) any witnesses for the prosecution other than the informant;
12. appear at the Magistrates’ Court at Melbourne on 24 February 2014 and thereafter as directed by that court.
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