Tuckerman v Director of Public Prosecutions
[2023] VCC 287
•6 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01320
| Richard TUCKERMAN | Applicant |
| v | |
| Director of Public Prosecutions | Respondent |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2023 | |
DATE OF RULING: | 6 March 2023 | |
CASE MAY BE CITED AS: | Tuckerman v DPP | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 287 | |
APPLICATION FOR BAIL
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Subject:CRIMINAL LAW
Catchwords: Application for bail – new facts and circumstances established – availability of residential drug rehabilitation programme – charge of intentionally causing serious injury – extradition from interstate – availability of surety – strong prosecution case – youthful applicant – exceptional circumstances not established – satisfied applicant is an unacceptable risk
Legislation Cited: Bail Act 1977 (Vic)
Cases Cited:
Ruling: Application for bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Karitzis | Bowler & Co |
| For the Respondent | Mr P. Botros | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1Richard Tuckerman is 23. He is charged with intentionally causing serious injury and two related summary offences. He has been in custody since 27 October 2021. On 30 January 2023, he applied for bail. His application is opposed.
2Mr Tuckerman previously sought bail. On 10 March 2022, his application was refused. Since he was represented by a lawyer for that application, I cannot hear this application unless he satisfies me new facts or circumstances have arisen since that refusal. I am so satisfied because of the immediate availability for him of a residential drug rehabilitation programme. This is a fact or circumstance which is capable of enabling a grant of bail.
3As to this application for bail, two things must occur before I can grant Mr Tuckerman’s application. First, he must establish there are exceptional circumstances which justify the granting of bail. Second, the respondent must establish, if granted bail, he is an unacceptable risk of:
(a) endangering the safety or welfare of any person; or
(b) committing an offence while on bail; or
(c) failing to surrender himself in accordance with the conditions of the bail.
Circumstances
4The circumstances underpinning the charges are contained in a document prepared by D/S/C Macdonald for today’s hearing. This is exhibit A.
5The injuries suffered by the victim are described in [32] of exhibit A. From that description, they would amount to a “serious injury” for the purposes of the offence of intentionally causing serious injury.
Arrest
6The alleged assault occurred in May 2021. He was on bail at the time. Despite that bail, Mr Tuckerman left Victoria and went to Queensland. One of the conditions of one of his grants of bail was he not leave this State.
7On 27 October 2021, Mr Tuckerman was arrested in Queensland and, on 28 October 2021, ordered to be extradited to Victoria. He was extradited and has remained in custody since, a period of about 16 months.
8For the present charges, a plea hearing has been set for 20 April 2023.
Criminal history
9For someone who is only 23 and has spent the last 16 months in custody, Mr Tuckerman has a poor criminal record. Excluding matters in the Children’s Court, he has appeared in a criminal court on 4 occasions and has been convicted of 55 charges. He has been sentenced to imprisonment once.
10Among his convictions are six relating to charges under the Bail Act 1977. They are:
(a) on 23 August 2022 – four charges of committing an indictable offence while on bail;
(b) on 11 May 2022 – one charge of committing an indictable offence on bail;
(c) on 1 April 2020 – one charge of failing to answer bail.
Drug rehabilitation
11In April and May 2002, Mr Tuckerman discussed residential drug rehabilitation programmes with a drug and alcohol counsellor, Jane Stone. Although aware of residential programmes in this State like those conducted by Odyssey House, Mr Tuckerman wanted a programme which was run interstate for he was concerned about his safety. Ms Stone gave him interstate options, including the programme conducted in Hervey Bay, Queensland. On or about 29 May 2022, she advised Mr Tuckerman of the availability of a bed for him at that programme. Surprisingly, no step was then taken to seek his release on bail to attend this programme. I do not know why as his counsel was unaware of this offer. On 6 December 2022, he was again told of the availability of a bed at this programme and, on 31 January 2023, this bail application was filed.
12The organisation which conducts the programme is Bayside Transformations Program (Hervey Bay). The programme lasts at least 12 months. It is residential. Although the residence is not secure, the residents are well supervised. Mr Tuckerman would need to travel to Hervey Bay himself. Ms James would accompany him. Representatives of the programme will meet him at the airport and take him to the residence. Since his father is prepared to be his surety, I daresay he would accompany his son to and from court hearings in Melbourne.
13Even though the programme has been described by Ms James, Charmain Vanderreyden, an intake officer with the programme and Alan Ling, a former case manager and intake officer with the programme, one cannot assess its effectiveness from their descriptions alone. Ms James considers it is effective and having heard from her, I accept that it is as far as any drug rehabilitation programme can be effective.
Father
14The applicant’s father, Bruce Tuckerman, swore an affidavit and gave oral evidence. He is a decent person, who is prepared to put at risk most of his savings as a surety for his son. His is also prepared to assist his son in the payment of the fees of the programme and the costs of travelling to Hervey Bay.
Psychologist
15Aaron Cunningham is a psychologist. At the request of Mr Tuckerman’s solicitors, he interviewed him on 17 February 2023[1].
[1] Report dated 23 February 2023.
16Dr Cunningham’s assessment was hampered by Mr Tuckerman’s inconsistent responses to a particular psychometric test. Using another test to assess Mr Tuckerman’s risk of future violent offending, he placed it at moderate. He noted abstaining from drug abuse and anti-social peer associations and improving stability through accommodation and employment would reduce his risk of re-offending.
17Interestingly, Dr Cunningham did not diagnose Mr Tuckerman as suffering from any recognised psychological disorder. Given his longstanding drug addiction, Dr Cunningham’s recommendation of drug and alcohol rehabilitation is hardly a surprise.
Discussion
18It would be easy to say that this application is too late. It should have been made in June or July last year. The plea hearing is only about 7 weeks away. However, since the issue is a person’s liberty, I would put this consideration aside. There will be no delay between my refusal today and the hearing of the plea.
19Given the severity of the injuries suffered by the victim, the charge of intentionally causing serious injury is a serious example of what is a serious offence. Since Mr Tuckerman intends to plead guilty to the charge, one must assume the prosecution case is strong. Although Mr Tuckerman has been in custody for about 16 months, if found guilty, and notwithstanding his age, he is likely to receive a sentence of imprisonment well beyond that period.
20Mr Tuckerman’s compliance with earlier grants of bail is poor. I have noted his previous convictions for offences under the Bail Act 1977. He travelled to Queensland contrary to a condition of one of his grants of bail. He committed the present offence while he was on bail for another matter. Plainly, he paid little regard to his conditions of bail.
21Mr Tuckerman’s background is sketched in the report of Dr Cunningham and the written submission of his counsel. What is interesting is the drug addiction from an early age. Why this is so was unexplained by the psychologist.
22I have already discussed the availability of the residential drug rehabilitation programme in Queensland. For a person with a drug addiction, the availability of a residential drug rehabilitation programme, whether in this State or interstate, is not a relevant exceptional circumstance. It is something Mr Tuckerman should have pursued long before the commission of the present offences. His reason for seeking a programme interstate is unsatisfactory. For example, of Odyssey House, he says he may meet persons who have been imprisoned and may fear them. But that is an insufficient reason not to pursue his drug rehabilitation earlier where, from his perspective, drug usage is linked to his criminality. It is also no reason not to pursue other drug rehabilitation options in this State.
23Again, the support of his father, especially financially, is not a relevant exceptional circumstance. It is what one would expect even for a child who has misbehaved as badly as Mr Tuckerman.
24Mr Tuckerman is young. The chances of rehabilitation are the strongest for young people. Their anti-social behaviour is not usually as hardened as in older persons. However, I doubt Mr Tuckerman would complete the programme if allowed to undertake it. Ms Stone referred to people saying it was harder to undertake the programme than being in prison. There is nothing in Mr Tuckerman’s background which suggests he has the determination to undertake that programme. He re-offended on bail, breaching a central condition of any grant of bail. He was unable to benefit from the community correction order made in April 2020. The order contained the special condition of undertaking assessment and treatment for drug abuse and dependency. He contravened the order and it was cancelled in August 2022. To say the order was insufficient to address his addiction raises his inability to comply with the far less onerous requirements of a community correction order. It gives no confidence in his ability to comply with a stricter regime of this residential rehabilitation programme. His youth is not an exceptional circumstance justifying the granting of bail.
25Mr Tuckerman is fearful of others while in custody. Recently, he was transferred to another prison because he was threatened by persons associated with co-accused in this proceeding. One would expect prison authorities would act to protect him and the recent move is evidence of that. This is not a relevant exceptional circumstance.
26Collectively, these factors do not amount to exceptional circumstances justifying the granting of bail.
27Although, it is unnecessary to deal with Step 2, I will make these observations. I would be satisfied Mr Tuckerman is an unacceptable risk of committing an offence on bail and failing to surrender himself in accordance with his bail. For the reasons set out above, I seriously doubt his ability to complete the proposed drug programme. I also seriously doubt his ability to comply with the other central aspect of bail, surrendering himself into custody whenever required for a court proceeding. His history of compliance with bail conditions is poor.
28Accordingly, Mr Tuckerman’s application for bail is refused.
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