Re Brown [2019] VSC 751 (15 November 2019)

Supreme Court of Victoria|2019-11-15|Before: LASRY J

CRIMINAL LAW - Bail - Charges of using a carriage service to menace, harass or cause offence - Committing indictable offence whilst on bail - Contravening conduct condition of bail - Targeting police and other public servants - Community correction orders in effect - Whether exceptional circumstances established - Whether risk reduced by bail conditions - Meaning of exceptional circumstances considered - Significant delay - Risk not unacceptable with conditions - Bail granted - Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, , , , - (Cth) 15AB.

1 This is an application for bail filed on 15 October 2019 by Rohan Michael Brown (the 'applicant'), who is self-represented in this matter.

2 On 9 September 2019, he was arrested and charged by Detective Senior Constable Andrew Russell with using a carriage service to menace, harass or cause offence; committing an indictable offence whilst on bail; and contravening a conduct condition of bail (the 'Russell matter'). The offences are alleged to have been committed between 29 July 2019 and 6 September 2019.

3 Relevantly, at the time of the alleged offending, the applicant was on bail in respect of seven charges brought by Detective Senior Constable Iain Samson (the 'Samson matter'). In that matter, the applicant is charged with stalking (four counts) and using a carriage service to menace, harass or cause offence (three counts). He was granted bail on 3 August 2018 in the Melbourne Magistrates' Court, and a trial was listed on 11 November 2019 in the Melbourne County Court.

4 That trial has been adjourned until 18 November 2019, primarily because that Court wished to await the resolution of this application for bail before this Court. The applicant remains on bail in relation to the Samson matter.

5 Committing an indictable offence whilst on bail is a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (Vic) (the 'Act'). [1] The applicant is alleged to have committed this offence whilst on bail for another Schedule 2 offence, namely, stalking in circumstances where he has previously been convicted of the same offence within the preceding 10 years.[2] Accordingly, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances exist which justify the grant of bail.

6 The applicant has been in custody since his arrest on 9 September 2019. He made a represented bail application in the Melbourne Magistrates' Court on the same day. That application was refused on the basis that he had failed to demonstrate exceptional circumstances and was an unacceptable risk of committing an offence whilst on bail and endangering the safety and welfare of any person.

7 The present application was filed in this court on 15 October 2019.

8 On 17 September 2019, the applicant sought a sentence indication with respect to the Russell matter, together with another matter for which he is charged on summons where the informant is Detective Senior Constable Hannah Murnane (the 'Murnane matter'). On that occasion, he was also legally represented. He did not accept the sentence indication and informed the presiding magistrate that he wished for the matter to proceed to trial in the County Court.

9 The applicant is also a subject of two active personal safety intervention orders ('PSIO'), which name Leading Senior Constable Mark Sonto and The Honourable Matthew Guy MP as affected persons.

10 He is also subject to a full no-contact family violence intervention order ('FVIO') that names his brother, Stewart Brown as the affected family member.

11 In addition to the two matters outlined above, the applicant is charged on summons in respect of three outstanding matters.

12 The first summons, the Murnane matter, involves two charges of contravening the two PSIOs referred to above. The charges arise from an email alleged to have been sent by the applicant on 30 January 2019 to both protected persons. He was ultimately charged on 1 March 2019. He contests those charges and the Murnane matter is next listed for contest hearing on 17 April 2020 in the Melbourne Magistrates' Court.

13 In the second summons matter, where the informant is Senior Constable Christopher Spero, the applicant faces charges of driving while suspended, dangerous driving and speeding (the 'Spero matter').

14 Finally, in the third matter, he is charged by the informant Leading Senior Constable Malcolm Marsden with driving while suspended (the 'Marsden matter').

15 Both the Spero and Marsden matters are listed for special mention in the Frankston Magistrates' Court on 18 December 2019.

16 By way of background, the applicant was charged in the Samson matter on 16 July 2018 following a referral to the Victorian Fixated Threat Assessment Centre ('VFTAC'), stemming from numerous offensive emails sent by him to members of Parliament, Victoria Police, the judiciary, court staff and other public servants.

17 In particular, during the period between 6 March and 16 July 2018, the applicant is alleged to have abused, harassed and offended individual members of Victoria Police and Corrections Victoria staff via emails, telephone calls and Facebook posts.

18 As noted above, he was granted bail on 3 August 2018 with conditions including that he not use social media, the internet or emails to publish menacing, offensive, harassing, abusive or disparaging communications or otherwise communicate with any member of Victoria Police, except for VFTAC, or cause another person to do so.

19 The prosecution case against the applicant is that between 29 July 2019 and 6 September 2019, he continued to use the internet to harass and offend a number of public servants using email and Facebook posts in contravention of his bail conditions.

20 After reviewing the impugned material to understand the nature of the allegations, it is not necessary to repeat the particulars of each communication, save to say that they contain a number of serious allegations of criminality, disparaging remarks, warnings and repeated demands of the recipients.

21 It is alleged that the applicant has done so with intention to intimidate and harass members of Victoria Police and that his correspondence goes beyond the scope of legitimate legal communication.

22 In particular, it is alleged that the content of his communications with Detectives Samson and Murnane escalated to the point that they have suffered psychological harm and anxiety, and that they are likewise offended by his communications.

23 He received a number of warnings regarding his behaviour prior to his arrest, including by letter from the Office of Public Prosecutions, which attached a copy of his bail undertaking and cautioned him that his conduct may amount to a breach of bail.

24 On 9 September of this year, the applicant was arrested by VFTAC and transported to Melbourne West Police Station where he refused to be interviewed and was later charged with the present offences.

25 The applicant is 49 years of age and identifies as an Aboriginal person.

26 In the material which he filed in support of his application, the applicant included a psychiatric report by Dr Leon Turnbull, prepared on 11 December 2017, which seems to indicate that the applicant would likely to meet the criteria for the diagnosis of autism, although Dr Turnbull resists confirming that diagnosis.

27 Prior to being on remand, the applicant resided at Unit 1/36 Suspension Street, Ardeer. If granted bail, he proposed to live at a different address in North Melbourne.

28 He reports that, prior to his arrest, he was engaged in further education and had been pursuing employment opportunities. He has also been working towards a reunion with his teenage son from whom he is presently estranged. His son, as I understand it, has been formally diagnosed as autistic.

29 Mr Brown has a significant and relevant criminal history. That criminal history dates back to 1986, including convictions for drunk driving, dishonesty and violence offences. The criminal history also discloses convictions for stalking (two counts in 2017), making a threat to kill (2017), contravening a conduct condition of bail (2017), committing an indictable offence whilst on bail (three counts in 2017), failing to answer bail (in 1995 and 2017), contravening a community corrections order (2018), and contravening a PSIO (seven counts in 2017), and contravening a FVIO (2017).

30 As noted above, the applicant is charged with a Schedule 2 offence under the Bail Act, namely committing an indictable offence whilst he was subject to a grant of bail for another Schedule 2 offence, namely, stalking in circumstances where he has previously been convicted of the same offence within the preceding 10 years.

31 Section 4AA(2) of the Act states that a 'two-step test' applies to the consideration of a grant of bail. Accordingly, the applicant is required to demonstrate the existence of exceptional circumstances that justify the grant of bail.[3]

32 In determining whether to be satisfied that exceptional circumstances exist, the Court must have regard to the guiding principles set out in s 1B of the Act and the 'surrounding circumstances' as set out in s 3AAA of the Act. [4] That section provides that relevant circumstances include, but are not limited to:

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(i) was on bail for another offence; or

(ii) was subject to a summons to answer to a charge for another offence; or

(iii) was at large awaiting trial for another offence; or

(iv) was released under a parole order; or

(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;

(f) whether there is in force -

(i) a family violence intervention order made against the accused; or

(ii) a family violence safety notice issued against the accused; or

(iii) a recognised DVO made against the accused;

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;

(i) the availability of treatment or bail support services;

(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.

33 If satisfied of the existence of exceptional circumstances, the Court is required to refuse bail if satisfied by the prosecution that there is an unacceptable risk of the kind outlined in s 4E(1)(A) of the Act should the applicant be released on bail.[5]

34 In determining whether the risk posed by him is unacceptable, the surrounding circumstances of s 3AAA must again be considered along with whether any conditions can be imposed that would mitigate the risk so that it is no longer unacceptable.[6]

35 As the applicant identifies as an Aboriginal person, the application of s 3A of the Act is triggered. That provision requires the Court to take into account any issues that arise due to the applicant's Aboriginality, including his cultural background, ties to extended family or place, and other relevant cultural issues or obligations.

36 Further, as the applicant is charged with a Commonwealth offence, the Court must have regard to s 15AB(1)(b) of the Crimes Act 1914 (Cth), which provides:

(1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth or the Northern Territory, or in determining conditions to which bail granted to such a person should be subject, a bail authority:

(a) ...

(b) must not take into consideration any form of customary law or cultural practice as a reason for:

(i) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or

(ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.

37 Pursuant to s 5AAAA(1) of the Act, the Court is required to make enquiries of the prosecutor as to whether there is an FVIO, other family violence safety notice or domestic violence orders in force against the applicant.

38 In the unsworn material filed on behalf of the applicant, he has set out what amounts to submissions in relation to each of the elements of s 3AAA of the Act. The material also detailed a number of grievances he has against Victoria Police and expressed frustration as to a number of his dealings with the criminal justice system. I propose to restrict myself to the matters that are directly relevant to this application.

39 The applicant submits that the offending in this case is not a serious example of the offence of using a carriage service to menace, harass or cause offence. In the course of supporting that conclusion, he refers to evidence given by the informant at a previous hearing that the prosecution's main concerns with the applicant's conduct are that he referred to the complainants as 'loopy and illogical' and having 'perverted the court of justice', rather than identifying any threat of harm.

40 The next matter that the applicant relies on relates to the strength of the prosecution case. He contends that it is weak with respect to the Commonwealth offence. He argues that the prosecution will be unable to prove the 'physical' element of the offence as the contents of the communications are unlikely to be considered to be offensive, harassing, menacing or disparaging, and that the fault element of the offence is similarly not made out due to his provisional diagnosis of autism. He also refers to what he asserts is a conflict of interest in relation to the informant being a colleague of the complainants in the matter.

41 With respect to the charges relating to contravening his bail, the applicant contends these are not indictable offences. It is also his view that he is the subject of malicious prosecution.

42 As I understand it, he does not admit his criminal history as such, asserting that his convictions were obtained under duress or while subject to 'arbitrary detainment by reckless and malicious prosecutions and wrongful decisions in an obvious miscarriage of justice contrary to the Criminal Procedure Act 2009 (Vic), and also the Universal Declaration of Human Rights.'

43 With regard to his prior performance on bail, the applicant asserted that he was compliant with the previous grant of bail made in the Supreme Court in September 2016 by Beale J, including the requirements of the Court Integrated Services Program until October 2017. At that stage, he said he was subject to arbitrary detainment and assaults by Victoria police. His criminal history discloses convictions for a number of bail offences in December 2017, which relate to that grant of bail.

44 The applicant submitted that he had ties to the jurisdiction as evidenced by his son, his full-time study as well as job opportunities. He detailed his relationship with his 16-year-old son and he explains how estrangement from that young boy occurred. Prior to his remand, he reported he was undertaking full-time study and had also completed a trial as a labourer in the flooring business for which he was offered a part-time position. He also stated that he was undertaking training in martial arts and was offered an opportunity to commence a 'membership acquisition campaign' with a view to obtaining a position as a marketing manager. Beyond that assertion, I do not think there is any other evidence to support that.

45 As referred to above, the applicant also identifies as being Aboriginal, descendant from the Wiradjuri people. The respondent has not sought to dispute this assertion. The applicant stated that his heritage is accepted by the community due to him having the 'physical attributes characteristic of those people'.

46 In relation to the issue of special vulnerability, the applicant relies on the report of Dr Turnbull to support his submission that he is autistic. As indicated earlier, that diagnosis has not been confirmed but Dr Turnbull does indicate that the applicant is on the spectrum. Some issue has arisen about whether the informant in this matter attempted to conceal his condition during previous applications for bail in the lower court.

47 He also complained that he has been unable to have access with his usual general practitioner whilst on remand, nor with counselling support services provided by the University of New England in New South Wales. However, no additional materials have been provided to support those claims.

48 The applicant also submitted that that he intends to contest the charges at trial, which may result in a further 12-month delay to the finalisation of these matters. The Court was informed that a filing hearing for the Russell matter is listed before the Magistrates' Court on Monday, 18 November 2019. The committal hearing would not occur until May of next year and a trial, or the post-committal, would not likely to be heard until somewhere between November 2020 and March 2021. That is, on any view, a very substantial delay.

49 Based on the sentence indication from September 2019 for the Russell and Murnane matters, the applicant submitted that he would receive a custodial sentence equal to time served (seven days at the date of that hearing), a fine of $2000 and a 12-month community corrections order.

50 Finally, the applicant is not legally represented. He submitted that there are inadequate facilities available to him to prepare his defence whilst in custody, which, he contends, is a contravention of s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

51 Although not the original stated position of the respondent, Mr Aitken has conceded that, in all the circumstances, it would be open to the Court to conclude that exceptional circumstances have been established that would justify the grant of bail.

52 The primary issue from the respondent's point of view remains that the applicant is an unacceptable risk of endangering the safety and welfare of any person, and of committing an offence whilst on bail. An affidavit filed on behalf of the respondent by Mr Stabler of Victoria Police sets out the material relied upon for that submission.

53 I will briefly summarise the respondent's submissions in relation to exceptional circumstances because these factors are also relevant as to whether the applicant is an unacceptable risk if released on bail.

54 The respondent submitted that the prosecution case against the applicant is strong, noting that there is a large number of exhibits demonstrating the type of communication that the applicant has allegedly engaged in and that both Detective Samson and Detective Murnane intend to give evidence at the trial.

55 Further, it was submitted that, although the separate instances of offending may be considered 'nuisance behaviour' in isolation, the sustained and ongoing nature of the alleged offending means that it is serious.

56 That submission has some attraction and I would not conclude, notwithstanding the applicant's submission, that the case against him is weak; though I am unable to say further.

57 With respect to the likely sentence, the respondent acknowledged the sentencing indication given in the Magistrates' Court but submits that, after a contested hearing and in light of the applicant's criminal history, it would be open to a court to impose a custodial sentence, but the respondent does not attempt to estimate the length of any likely sentence.

58 I remain of the view that such a sentence would be far short of a period of remand in excess of 12 months, and this is an important factor.

59 Although the respondent dealt with briefly the other issues raised by the applicant concerning the diagnosis of autism and whether the police sought to conceal that condition as well as the claims of conflict of interest, I do not believe it is necessary to detail those submissions further.

60 The respondent submitted that the applicant has repeatedly engaged in similar offending to that alleged in the Russel matter - namely, harassment via electronic communications - over a number of years towards persons employed in public office. According to the respondent, this type of offending has a significant psychological and mental impact on the targeted individuals.

61 The respondent argues that the applicant's perception and attitude towards police and others employed in public office combined with a lack of insight into his behaviour, demonstrates that he is at high risk of continued offending until such time as he engages in treatment. Whilst it appears to be a somewhat over-generalised assertion, I simply recite it because that is the respondent's position.

62 Further, the respondent urged the conclusion that, given the applicant has a history of contravening bail and other orders of the court, he has little regard for the law. The respondent noted that the applicant has targeted police officers, court staff, judges and state politicians, which demonstrates a disrespect for the judicial process.

63 The respondent claims on behalf of VFTAC that they have been very patient in addressing his conduct and have made concessions for his being self-represented.

64 The first question to determine is whether the applicant has established the existence of exceptional circumstances that justify a grant of bail, and I am required to take into account the circumstances set out in s 3AAA of the Act.

65 In addition, the phrase, 'exceptional circumstances' has been the subject of regular consideration in this Court, although it is not defined in the Act. In order to be 'exceptional', it has been accepted that:

The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.[7]
Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.[8]
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[9]

A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimate is ultimately of significance is that, viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

67 I have considered the meaning of 'exceptional circumstances' alongside the relevant factors of s 3AAA of the Act raised by the applicant, particularly the applicant's vulnerability and, perhaps most importantly, the delay that will occur before the Russell matter will be finalised. In my opinion, and in view of the respondent's concession, exceptional circumstances have been established by the applicant justifying a grant of bail.

68 The next question is whether the risk of releasing the applicant on bail can be reduced to an acceptable level with the imposition of conditions. As a result of the exchange between the applicant and myself, in my view, it can.

69 I am satisfied that the applicant clearly understands that if he were to breach his bail conditions, he would immediately be returned to custody. I am also willing to accept the applicant's perception that it would be futile to engage in such behaviour. The applicant is an intelligent man and, in my view, has a clear understanding of his present circumstances.

70 The conditions that were imposed in the Samson matter are quite stringent and would achieve the effect of preventing the applicant from engaging in the kind of impugned conduct currently alleged, if they are complied with.

71 Whilst I do not take it as an undertaking as such to the Court, as I have made clear, the applicant has given an assurance that he clearly understands that the immediate effect noncompliance will be a return to custody. If that means that he is in custody until the Russell matter comes on for hearing in the County Court in over a year's, then that will be the consequence. In my opinion, the potential delay of more than 12 months puts a new context around the issue, and it is very much in the applicant's interests to comply with the conditions that I intend to impose.

72 I therefore propose that the applicant be released on bail on his own undertaking with the following conditions:

1. The applicant is to reside at 16/185 Howard Street, North Melbourne in the State of Victoria and not change his resident without notifying the court within 24 hours of any proposed change of address;

2. The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, including the informant;

3. The applicant is not to use social media, the internet and/or emails to publish any communication that is of a menacing, offensive, harassing, abusive, disparaging or threatening nature;

4. The applicant is not to attend within 200 metres of any Victoria police station other than bona fide to report an offence or attend court;

5. The applicant is not to communicate otherwise with any member of Victoria Police;

6. The applicant is not to cause of any other person to engage in conduct prohibited by these conditions;

7. The applicant is to appear at the Melbourne Magistrates' Court in 18 November 2019 and thereafter as directed by that court.

[1] Using a carriage service to menace, harass or cause offence, contrary to Criminal Code 1995 (Cth) s 474.14, is an indictable offence pursuant to Crimes Act 1914 (Cth) s 4G.

[2] See Bail Act 1977 (Vic) sched 2, item 8(a) ('Bail Act').

[5] See Bail Act ss 4D and 4E(2).

[7] Re Sam [2017] VSC 91 [22].

[8] Armstrong v R [2013] VSC 111, citing Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990; see also Re Whiteside [1999] VSC 413.

[10] Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990.

Human Rights and Responsibilities Act 2006

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