DPP v Tilki [2003] VSC 483

2 The applicant is charged with three co-accused, David Bertram, Steven Smithurst and Adam Cresp.

3 The allegations underlying the charge are that on 29 October 2003 Wendy Adhofer received a telephone call from Cresp in relation to effecting the return of some hydroponic equipment. It is alleged that Cresp handed the telephone to the applicant who spoke to Adhofer and requested the equipment back. It is alleged that during the conversation the applicant threatened to go to where Adhofer lived and attack her, including slitting her throat. It is said that in the conversation Adhofer handed the telephone to her boyfriend, Garren Philip, and the applicant is alleged to have repeated the threat to him.

4 The next phase in the allegations is that at approximately 12 midnight on 30 October 2003, the applicant accompanied by the three co-accused arrived at the address of Adhofer and attempted to break into the house through the front door but were unsuccessful. Next, the applicant and Philip, the boyfriend of Adhofer, spoke to one another at the front window of the premises about the claimed hydroponic equipment. Whilst that conversation was ensuing, Bertram is alleged to have swung a baseball bat at the window where Philip was standing inside but was stopped by the applicant. Next, the applicant is alleged to have spoken further to Philip and stated, "Let me in to talk to you, cos' if you don't, you won't walk out of here tomorrow". Philip is said to have then unlocked the door and the applicant entered the house. Once inside the house Adhofer started to yell at the applicant who then is alleged to have produced a black 9mm. Smith and Wesson semi-automatic handgun and pointed it at the head of Philip. The applicant is alleged to have told Philip to sit down on a couch. Next, the applicant sat down and after a short time put the handgun down the back of his trousers. Whilst these events occurred, Bertram, Smithurst and Cresp remained outside.

5 By that time the police arrived at the address and Smithurst and Cresp tried to escape. At this point Bertram was standing at the front door knocking. After the knocking, the applicant is alleged to have reproduced the handgun pointing it at Philip and then at Adhofer demanding that she open the door.

6 Adhofer went and opened the door and Bertram walked inside the house followed by the police. The applicant was searched by the police who found the gun loaded with ten rounds of ammunition. Eventually the applicant and the other three co-accused were arrested and charged.

7 The applicant applies for bail to this court because of the nature of the charges: see s.4(4)(c) of the Bail Act 1977. The applicant must show cause. The Crown opposes bail on the sole ground that there is an unacceptable risk that the applicant, if released, would interfere with witnesses.

8 The applicant is 33 years old and currently held in the Melbourne Assessment Prison. He has a history dating back to 1990 predominantly consisting of matters such as unlicensed driving, theft of a motor vehicle and other charges including burglary and theft. For present purposes the most significant component of the applicant's history are convictions for criminal damage, unlawful assault and assault with a weapon in May 1990 and recklessly causing injury, assault by kicking and unlawful assault in September 2001. There is no issue before the Court as to the likelihood of the applicant answering bail if granted.

9 Mr Sheales who appeared for the applicant submitted that the charges had no or little prospects of success on the basis of the statements of the victims, Adhofer and Philip. He further submitted that in view of the anticipated time until the committal hearing, possibly mid-2004, the applicant faces the prospect of the remand period exceeding the likely sentence if convictions are recorded. Mr Sheales suggested that if bail was refused the applicant faced the prospect of a minimum period in custody, on remand, of 15 months.

10 In substance, the position of Mr McArdle who appeared for the Crown was that the risk with respect to the applicant was posed by the facts surrounding the charges. Indeed, it must be observed that the events as alleged involve a serious and frightening chain of events. Mr Sheales argued that the Crown needed to point to more than the circumstances of the offence itself to demonstrate an unacceptable risk with respect to the applicant.

11 There seem to be few authorities as to how a matter such as the present should be approached. I was referred to a number of authorities but they were largely cases where exceptional circumstances were required to be made out under the Statute. A relevant authority is the judgment of Gillard, J. in Director of Public Prosecutions v. Harika [2001] VSC 237 where his Honour set out the relevant factors in showing cause (at para. [61]):

"The relevant factors on the application by the respondent were, first, a weapon had been used during the commission of the alleged offence, which showed a propensity to resort to violence; secondly, the presence of the weapon provided the potential to cause serious physical and/or mental injury to a victim; thirdly, the probabilities are high that upon conviction, the respondent would be sentenced to a substantial term of imprisonment which may encourage him not to answer bail; and finally, there is a risk of the commission of another similar-type offence."

12 Not all of those factors are relevant in the present case. However, the applicant engaged in a terrifying sequence of events. These circumstances of themselves demonstrate a propensity to resort to violence. In the course of the circumstances of the allegation the applicant used a gun and, worse, pointed the gun at the head of another. This demonstrates the potential of the applicant to cause serious physical and/or mental injury to a victim. These circumstances of themselves dissuade me from sufficient satisfaction that the applicant has shown cause.

13 The second aspect of the submissions for the applicant was the prospect that the period in remand may exceed any likely sentence. I observe that the maximum penalties for the charges are substantial including a term of imprisonment of 25 years, maximum, for aggravated burglary. On the face of the statements of the victims at this point, I could not be satisfied that the charges are hopeless and doomed to failure. Furthermore, I could not be necessarily satisfied that the period spent by the applicant in remand is likely to exceed any possible sentence. Ultimately, Mr McArdle for the Crown submitted that the appropriate time to consider this aspect of the applicant's submission is after the committal. I agree.

14 In the circumstances it follows from my reasons that the application should be refused and I order accordingly.