R v Fletcher

Judgment 1HIS HONOUR: James Mark Fletcher ("the applicant") applies for bail. The Crown opposes the application. The applicant is charged with the following offences: (a) participate in a criminal group between 19 August 2011 and 3 April 2012 contrary to s 93T Crimes Act 1900. This offence carries with it a maximum penalty of 10 years imprisonment; (b) specially aggravated break and enter and commit serious indictable offence of inflicting grievous bodily harm between 4 September 2011 and 5 September 2011 contrary to s 112(3) Crimes Act. This offence carries with it a maximum penalty of 25 years imprisonment; (c) causing grievous bodily harm with intent on 28 September 2011 contrary to s 33(1)(b) Crimes Act. The maximum penalty for this offence is 25 years imprisonment; (d) three counts of supplying a prohibited drug contrary to s 25(1) Drug Misuse and Trafficking Act 1985; (e) four counts of using a carriage service to threaten serious harm contrary to s 474.15(2) Criminal Code Act 1995 (Cth). The maximum penalty for such an offence is 7 years imprisonment; (f) one count of using a carriage service to threaten to kill on 26 February 2012 contrary to s 474.15(1) Criminal Code Act (Cth). This offence carries with it a maximum penalty of imprisonment of 10 years; (g) dealing with property on 4 April 2012 suspected of being proceeds of crime contrary to s 193C(1) Crimes Act. The maximum penalty for this offence is 50 penalty units or imprisonment for 2 years, or both; (h) specially aggravated break and enter and commit serious indictable offence of assault occasioning actual bodily harm between 4 September 2011 and 5 September 2011 contrary to s 112(3) Crimes Act; (i) causing grievous bodily harm with intent between 4 September 2011 and 5 September 2011 contrary to s 33(1)(b) Crimes Act; and (j) assault occasioning actual bodily harm in company between 4 September 2011 and 5 September 2011 contrary to s 59(2) Crimes Act. The maximum penalty for this offence is 7 years imprisonment. Relevant principle 2An offence under s 33 Crimes Act and an offence under s 112 Crimes Act that involves an act of actual or threatened violence against a person is a "serious personal violence offence" within s 9 Bail Act 1978. Section 9D(1) and s 9D(2) relevantly provide: "(1) ...[A] court is not to grant bail to a person in respect of a serious personal violence offence if the person is a repeat offender unless the...court is satisfied that exceptional circumstances justify the grant of bail. (2) For the purposes of this section, a person is a repeat offender if the...court is satisfied that the person has a previous conviction for a serious personal violence offence (other than the serious personal violence offence in connection with which bail is sought)." 3The applicant was convicted on 24 September 2004 of maliciously inflicting grievous bodily harm with intent and was sentenced to 6 years imprisonment with a non-parole period of 3 years 6 months. This crime falls within the definition of a "serious personal violence offence": s 9D(4) Bail Act. I am satisfied that the applicant is a repeat offender. Section 9D(1) Bail Act applies to the offences contrary to s 33(1) and s 112(3) Crimes Act. 4It is well established that s 9D places a heavy onus on an applicant for a grant of bail: see for example R v Connelly (Supreme Court of New South Wales, Hoeben J, 16 February 2006, unreported); R v Pirini (Supreme Court of New South Wales, McClellan CJ at CL, 8 September 2009, unreported); R v Pirini (Supreme Court of New South Wales, James J, 20 April 2010, unreported). Exceptional circumstances may arise from one or more factors either singularly or combined: see Pirini (8 September 2009); R v Young [2006] NSWSC 1499; R v Jacobs (2008) NSWSC 417. A weak Crown case may constitute exceptional circumstances: Memery v R [2000] VSC 495. 5Although exceptional circumstances may be established by a weak Crown case, an assessment of the existence of exceptional circumstances is not limited to this consideration. In Pirini (8 September 2009), McClellan CJ at CL said at [44]-[45]: "For my part I would not confine the consideration of exceptional circumstances to a consideration of the strength of the Crown case alone. Although it is a central issue the nature of the offence and the circumstances of the offending and of the offender are also relevant although the weight to be afforded them may differ in each case. All of the matters in s 32 must be considered. A primary consideration when determining whether to grant bail is whether the accused will attend to answer the charge at a later trial. However, the court must also be concerned with the protection of witnesses other persons including relatives of a victim and the protection and welfare of the community. These considerations must be balanced with the likely period of incarceration of an individual before trial." 6There is no presumption in favour of or against the grant of bail for the other offences that the applicant faces. He was on bail at the time these offences were allegedly committed for an offence of robbery contrary to s 94 Crimes Act. Furthermore, the applicant is charged with an indictable offence and has previously been convicted of indictable offences: s 9B(3) Bail Act. The Crown cases The offences contrary to s 33(1)(b) and s 112(3) Crimes Act between 4 September 2011 and 5 September 2011. 7The Crown alleges that the applicant was one of a number of offenders who invaded Peter Ryan's home at about 11pm on 4 September 2011. Mr Ryan was repeatedly struck to the head with an iron bar. He sustained life threatening injuries, which included several skull fractures, and bleeding on the brain. Other occupants of the home were struck with a blunt weapon. Dylan Ryan received 26 stitches for a number of head injuries and Tanya Waugh received treatment for severe bruising to her legs. 8None of the victims identified the offenders but the Crown relies on lawfully intercepted telephone calls to establish that the applicant participated in the attack. The monitored calls are said to describe an escalating feud between Wade Hallgath (Hallgath) and Mr Ryan and the intervention of Michael Why (Why) on Hallgath's behalf. 9The Crown points to an intercepted conversation at 5:05pm on 2 September 2011 between Why and the applicant during which Why told him of an iron bar being pulled on the Hallgath boys and the applicant saying, "They're gone". Later in the conversation, the applicant said "we should all go and see 'em." Why responded, "Me and you will go and see 'em and we'll go in their shed 'cause their (sic) got a shed across from Wade. They are messing with the wrong family there because John and Wade won't lie down." The applicant said, "And they're with us". Why said he would talk to him later and "get him on the job by Monday." 10The Crown also refers to the lack of activation of the mobile phones of Nathan Ryan, Why and the applicant during the time that the offence was committed. The Crown contends that the non-activation of all three services for several hours is out of character and indicates that the applicant and the other two were engaged in criminal activities together. 11Ms Davenport SC for the applicant submitted that the Crown case was a weak one as no-one had identified him and the high point appeared to be that the applicant, Nathan Ryan and Why did not activate their phones during the time the offences are alleged to have been committed. 12As this is a bail application, my assessment of the strength or otherwise of the Crown case is limited to an examination of the untested material before me. Having regard to the early stage of the proceedings, it is inappropriate that my analysis of the evidence is provided in detail. I conclude that a jury could capably find when viewing the evidence in combination that the applicant committed this offence, but I do not consider the Crown case to be strong. In my opinion, there is a reasonable prospect of a jury not being satisfied beyond reasonable doubt that the applicant was one of the offenders who invaded the home and attacked Mr Ryan, Dylan Ryan and Ms Waugh. The offence contrary to s 33(1)(b) Crimes Act on 28 September 2011 13The Crown alleges that Gregory Caulfield was viciously assaulted by a group of six persons as he walked along the Pacific Highway at Coffs Harbour. It is alleged that this was in retaliation for a previous verbal altercation between Mr Caulfield and the applicant's younger brother earlier that evening. Mr Caulfield suffered life threatening injuries, including a fractured skull, fractured ribs and a laceration to the liver. 14The Crown relies on lawfully intercepted calls which police believe directly implicate the applicant in the assault and interference with police witnesses. The Crown further refers to the applicant's conversation at 12:47am with Nathan Ryan during which police are able to hear a fast food operator in the background. It is the Crown case the food operator was the McDonald's Restaurant at North Coffs Harbour which was directly opposite where the complainant was assaulted. CCTV footage from the McDonalds Restaurant is said to capture the applicant walking through the drive thru section of the restaurant around the time of the assault which occurred approximately 50 metres away. 15Ms Davenport contended that the Crown case is reliant upon admonishments made by the applicant to people not to speak about an incident that he said he knows nothing about and they know nothing about. She contended that these conversations seem to be a denial of involvement in this offence. Ms Davenport submitted that the Crown case was weak. 16The Crown's case does not rely solely on the intercepted conversations but also on the applicant's location near the time of the offending. In my view, the Crown case against the applicant is not strong, but it is not so weak that it must inevitably fail. 17My conclusions as to the strength of the Crown cases, do not by themselves, justify a finding of exceptional circumstances. The offence contrary to s 93T(1) Crimes Act and offences contrary to s 25(1) Drug Misuse and Trafficking Act 18The Crown alleges that the Toormina Chapter of the Lone Wolf Outlaw Motor Cycle Gang (OMCG) is a criminal organisation that is heavily involved in the distribution of prohibited drugs and other criminal activities. It is the Crown case that the applicant is a fully patched member of the Lone Wolf OMCG. The Crown relies on intercepted telephone calls and listening devices to establish that the applicant with other members and associates of the Lone Wolf OMCG supplied indictable quantities of amphetamine and ecstacy. 19The material before me discloses a strong Crown case for this offence as it also does for the three counts of supply of a prohibited drug. The offences contrary to ss 474.15(1) and 474.15(2) Criminal Code Act (Cth) 20The Crown alleges that the applicant made threatening phone calls to his de facto partner Cassie Naden with whom he had a volatile relationship and was pregnant with his child. The statement of facts reveals that the applicant told Ms Naden in a conversation on 27 September 2011 that if she did not have an abortion he was going to get his son to bash and stab her unborn child every day when the child was born and was old enough to attend school. During the telephone conversation on 26 February 2012, the applicant said to Ms Naden "If you call the police you are in a grave, I will shoot your dog and your sister...you will be buried and disappear if you call the coppers." Other threats were made that included the applicant was going to take her eye out. 21Ms Davenport told the court that a statement had not been obtained by police from Ms Naden. Ms Davenport argued that if the threats were thought to have been serious, police might have done something to protect this woman but they had not. Mr Crepaldi for the Crown accepted that Ms Naden might be a hostile witness, but argued that the telephone intercept material was overwhelming. 22Although Ms Naden might be a hostile witness, the Crown case is founded upon the lawfully intercepted telephone calls between the applicant and Ms Naden. In my view, the Crown case for these offences is strong. The interests of the applicant 23Another matter relied upon by the applicant as constituting exceptional circumstances (either by itself or in combination) was the delay in the prosecution of the cases against him. Delay in the prosecution of an alleged offender is capable of constituting exceptional circumstances within s 9D: Pirini (20 April 2010) per James J at [93]. 24Ms Davenport submitted that as the applicant had been in custody since 4 April 2012, he would not be committed for trial for the drug offences until 11 December 2013 and will have been in custody for about 20 months before committal proceedings. Ms Davenport said that the "home invasion" charges were listed for argument on 10 September 2013 in the Coffs Harbour Local Court and it was unlikely that trial dates would be set until the middle of 2014. 25Although the applicant has been in custody since 4 April 2012, he was serving a sentence for robbery of one-year imprisonment that expired on 3 April 2013. There is nothing that suggests that any of the committal proceedings have been unduly delayed by the Crown. I consider that the delay in the cases that the applicant faces to be unexceptional, but take into account the further period of time that the applicant may be obliged to spend in custody if bail is refused and the difficulties that may present to the applicant to prepare for his trials: s 32(1)(b) Bail Act. Flight 26Section 32(1)(a) Bail Act obliges the court to consider the probability of whether or not the person will appear having regard, relevantly, only to: "(i) the person's background and community ties, as indicated...by the history and details of the person's residence, employment and family situations and the person's prior criminal record...and ... (iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty, and (iv) any specific evidence indicating whether or not it is probable that the person will appear in court..." 27Ms Davenport informed the court that the applicant is of Aboriginal background who is not a person of means and does not have access to large sums of money. It was proposed that he would reside at Jamisontown near Penrith with a friend, Ms Walker. Mr Edwin Monk, his foster father, is prepared to deposit $20,000 by way of a surety. Ms Davenport said that the applicant was prepared to comply with any bail conditions set by the court. 28I accept from Ms Davenport (although there was neither evidence nor written confirmation) that the applicant has a place to reside and a surety if granted bail. 29The Crown referred to the seriousness of the offences and the inevitability of lengthy terms of imprisonment being imposed if the applicant is convicted. The Crown drew the court's attention to a breach of bail on 30 January 2004 and the issue of warrants in December 2003. 30On the material before me, I am unable to find on the balance of probabilities that the applicant will appear if granted bail. The protection of the community 31In considering this bail application, the court is obliged to take into account the protection and welfare of the community having regard, relevantly, only to: (a) the likelihood of the applicant interfering with evidence, witnesses or jurors: s 32(1)(c)(iii) Bail Act; (b) whether or not it is likely that the applicant will commit any serious offence whilst on bail: s 32(1)(c)(iv) Bail Act. 32The Crown submitted that the telephone intercept material demonstrates that the applicant, other co-accused and members of the Lone Wolf OMCG are prepared to actively intimidate and approach Crown witnesses in an attempt to coerce them into changing their statements. The Crown further referred to the threatening calls made to Ms Naden. 33Ms Davenport said that the home invasion offences and the attack upon Mr Caulfield occurred in September 2011 and the applicant was not arrested until April in the following year. Ms Davenport argued that if the applicant intended to interfere with Crown witnesses, he would have done so before his arrest. 34In my view, the Crown's concern for the protection of Crown witnesses is well founded as the telephone intercepts disclose the applicant's interest in influencing what was said to the police. The intercepted conversations with Ms Naden reveal extreme threats of violence made by the applicant to his former partner. 35The applicant's criminal history does not assist him. His prior record includes convictions for assault occasioning actual bodily harm (2003, 2004), contravene apprehended domestic violence order (2003, 2004), maliciously inflict grievous bodily harm (2004), possession of a prohibited weapon (2009) and robbery (2011). 36Another impediment to the grant of bail is that offences are alleged to have been committed whilst the applicant was on bail for the offence of robbery. I am not at all persuaded that the applicant will not interfere with witnesses or commit serious offences if granted bail. Decision 37Taking into account all of the matters that must be considered I am not satisfied that the applicant has discharged the heavy onus of satisfying the court that there are exceptional circumstances justifying the grant of bail for the offences contrary to s 33(1)(b) and s 112(3) Crimes Act. 38For those offences to which s 9D(1) Bail Act does not apply, I am satisfied that bail should be refused. 39Accordingly, bail is refused.