Re Application for Bail by Peter John Hewat [2014] VSC 240 (22 May 2014)

2 I briefly refer to the relevant history. On 2 August 2013, Beach J granted the applicant bail on his own undertaking with a surety of $500,000. The charges upon which the applicant was admitted to bail related to two separate sets of offences:

(a) on 28 March 2013, the applicant was arrested and charged with numerous offences alleged to have occurred between November 2012 and February 2013, including burglary, intentionally cause injury, making threats to kill, retention of goods believed to be stolen, trafficking a drug of dependence, and possession of a prohibited weapon ("the Riegelhuth matters");

(b) on 5 June 2013, the applicant was charged with further offences alleged to have occurred on 26 February 2013, including aggravated burglary, extortion and assault ("the Short matters").

3 On 10 October 2013, and whilst on bail, the applicant was charged with 17 further offences, including theft of a Kenworth heavy haulage tow truck, retaining stolen goods (car parts), possessing a prohibited weapon, dealing with property suspected of being proceeds of crime (i.e. $47,000 cash), possessing stamps for restamping engine numbers, and threatening to inflict serious injury against the informant in the Riegelhuth and Short matters, Detective Senior Constable Measham. Detective Senior Constable Kahlon is the informant in the charges of 10 October 2013 ("the Kahlon matters"), which contain both indictable and summary charges.[1]

4 Since the refusal of bail by Dixon J, the applicant has pleaded guilty and been sentenced in both the Riegelhuth and Short matters. On 22 January 2014, in respect of the Riegelhuth matters, the applicant was sentenced to ten months' imprisonment. On 20 March 2014, in respect of the Short matters, the applicant was sentenced to nine months' imprisonment with seven months suspended for 15 months. Also on 20 March 2014, the applicant was sentenced to four months' imprisonment wholly suspended for 15 months for driving-related offences.

5 The release date for the applicant upon the charges for which he was sentenced to imprisonment was last Tuesday, 20 May 2014. Thus, from 20 May 2014, the applicant will be held in custody in relation to charges dating from his arrest on 10 October 2013, being the Kahlon matters, unless bail is granted.

6 I was informed that the Kahlon matters are set down for a committal hearing in the Magistrates' Court on 2 July 2014. I was also informed that the County Court is currently listing criminal trials for September 2015. It is apparent that the Kahlon matters are unlikely to receive a trial date for at least 16 months and thus close to two years from the date of arrest.

7 Mr S. Tyrell for the applicant submits the following new facts and circumstances:

(a) the Riegelhuth and Short matters have been dealt with and, if the applicant were granted bail, he would be subject to two suspended sentences of imprisonment; and

(b) delay in the Kahlon matters is apparent. There will have been a delay of nine months from arrest to committal hearing on 2 July 2014. A further delay of well in excess of a year can be expected from the date of the committal hearing.

8 These matters, together with the availability of home accommodation, ties by way of family and a business to the jurisdiction, his wife's deteriorating mental health, and a history of compliance with bail conditions are all matters relied upon by the applicant to show cause why his detention in custody is not justified. The additional matters set out in this paragraph are all matters that were considered by Dixon J. I do not consider they amount to new facts or circumstances.

9 During submissions, Ms D. Manova, who appeared for the respondent, indicated the respondent's principal objection to bail was not the potential failure to answer bail, but rather, the applicant posed an unacceptable risk of further offending by way of threatening witnesses. Ms Manova pointed to the applicant having a prior conviction, in 2007, for attempting to pervert the course of justice by threatening a witness.

10 Two witnesses were identified by Ms Manova in the Kahlon matters as being at risk. One witness, I was informed, will provide evidence his truck was stolen in 2008 and that he reported the theft to police. I understand the truck in question to be the Kenworth tow truck the subject of one of the Kahlon matters. The other witness will give evidence as to methods of stamping numbers onto chassis and engine parts to "rebirth" stolen trucks. I was informed by Ms Manova that police have had difficulty in obtaining potential witnesses from the heavy haulage industry; when potential witnesses were informed the applicant was the subject of the police investigation, the potential witnesses have demonstrated a reluctance to become involved.

11 In refusing bail to the applicant in November 2013, Dixon J stated that he was persuaded the applicant was:

...an unacceptable risk that, if released on bail, he would commit a further offence whilst on bail. Perhaps more significantly, I am satisfied that the applicant has been charged with threatening a prosecution witness and that having regard to that incident, in conjunction with the applicant's prior criminal history, his position as Sargeant-at-Arms for the East County Chapter of the Hell's Angels, and the circumstances of each of the Riegelhuth and Short offences, there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses.[2]

(a) that the resolution of the Riegelhuth and Short matters is not a new fact or circumstance such as to warrant the re-opening of the question of bail; the only change in the applicant's circumstances is that he admitted his guilt;

(b) on the question of delay, the matter has been and will be dealt with within the usual timeframes of the criminal justice system; and

(c) the applicant is in a show cause situation, charged with indictable offences alleged to have been committed whilst on bail, and he has failed to show cause why his detention is not justified.[3] In any event, the respondent submits the applicant is an unacceptable risk of further offending and interfering with witnesses.

13 The applicant has a long criminal history. His prior convictions include convictions for assault, handling stolen goods, attempting to pervert the course of justice, extortion with threat to inflict injury, and a conviction for failing to answer bail in January 2012. This history, taken with the circumstances of the Riegelhuth, Short and Kahlon matters, demonstrates that the applicant is a risk of re-offending and potentially interfering with witnesses if granted bail. That said, the two witnesses identified as potentially at risk in the Kahlon matters will provide evidence on procedural and relatively non-controversial issues.

14 The alleged threatening words concerning Detective Senior Constable Measham, a charge in the Kahlon matters, together with evidence of intercepted phone calls in which threats were made concerning Detective Senior Constable Measham, are serious. Nevertheless, each needs to be now considered in the context of the Riegelhuth and Short matters having been concluded with pleas of guilty.

15 The conclusion of the Riegelhuth and Short matters in my opinion ameliorates the risk of witness interference referred to by Dixon J as set out above.

16 In my opinion, the risk of the applicant re-offending is lessened in circumstances where the applicant on bail will be subject to two suspended sentences. Breach of bail or any further offending would, as a consequence, result in his immediate imprisonment. The suspended sentences and the conditions I propose to a grant of bail lead me to conclude the risks associated with a grant of bail to the applicant can be managed to a point where they become acceptable.

17 The lengthy delay in obtaining a date for trial in the circumstances of the Kahlon matters is a significant factor in determining it is appropriate to grant the applicant bail. Whilst it may be the case, as is submitted on behalf of the respondent, that the delay is not abnormal in terms of the criminal justice system, I have to weigh that factor against what is on any view a very lengthy delay and the circumstances and nature of the Kahlon charges. I have undertaken that task. Whilst the charges are indeed serious and if convicted would likely result in the applicant being sentenced to a term of imprisonment, it is my opinion the significant delay tips the scales in favour of granting bail.[4]

18 Thus, I find the applicant has demonstrated why his detention in custody is not justified. Bail is granted on the conditions set out in my order.

[1] The indictable offences are being tried summarily.

[2] Hewat v R [2013] VSC 642 at [29].

[3] See Bail Act 1977 s 4(4).

[4] See Kellam J in Mokbel v DPP (No 3) [2002] VSC 393 at [6] where his Honour stated "...whether or not this risk is unacceptable requires to be balanced against the period that the applicant will otherwise spend in custody awaiting trial. In this regard, there is also to be brought into account the precautionary measures that can be taken by way of conditions".