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[2018] VSC 638
General information, not legal advice.
Supreme Court of Victoria
2018-10-24
TINNEY J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Aggravated burglary, false imprisonment, and assault charges - Requirement to show compelling reason exists that justifies grant of bail - Whether compelling reason exists - Whether unacceptable risk - Compelling reason not shown - Unacceptable risk established - Bail refused - Bail Act 1977, ss 1B, 3AAA, 4AA, 4C and 4E.
1 The applicant applies for bail on a number of charges laid against him on 25 July 2018 in respect of conduct alleged to have occurred on the previous day. His estranged wife, Emma Mongan ('the complainant'), is the alleged victim of all of the offences. The charges being faced by the applicant are:
2 It is common ground between the parties that the charges of aggravated burglary and making a threat to kill are offences contained within Schedule 2 of the Bail Act 1977 (Vic).
3 The applicant was arrested on 25 July 2018, was charged with the offences and was remanded in custody. On 27 July 2018, the Bendigo Magistrates' Court made an interim Family Violence Intervention Order ('FVIO') against the applicant naming the complainant and the children as affected family members.
4 On 1 August 2018, an application for bail was made before the Bendigo Magistrates' Court. Bail was refused by a magistrate.
5 The matter is currently listed for a one day committal on 31 May 2019.
6 The applicant and the complainant were married for 13 years and separated in November 2016. They have three sons together, aged 8, 10 and 12.
7 On the account of the complainant, which is challenged by the applicant, the marriage ended due to the controlling and intimidating behaviour of the applicant. From the time of the separation, a series of interim and final FVIOs were in place restraining the applicant from contact with the complainant. The most recent of these orders expired in January 2018. The applicant repeatedly breached these FVIOs, by doing such things as telephoning the complainant and threatening to commit suicide, attending her house and delivering a suicide letter to her, and sending harassing text messages to her in the guise of communication about the children. On one occasion, after the complainant had had the locks to her home changed as a result of an earlier uninvited attendance by the applicant, when she was away from home, the applicant entered the house via the roof after removing some tiles.
8 In the end, the applicant was dealt with by the Echuca Magistrates' Court on 6 June 2018 for two charges of contravening an FVIO. He received a without conviction bond to 6 December 2018 with a special condition he complete a Men's Behavioural Change Programme. By 16 July 2018, the applicant had satisfactorily completed this requirement, having attended 13 of 14 available sessions.
9 The alleged offences were committed little more than a week after the applicant's completion of this course, and only about six weeks after he had been placed on the bond.
10 The applicant and the complainant had a 50/50 shared care arrangement of the children with a Federal Circuit Court Order in place. At the time of the alleged offending, the applicant lived with his parents Judy and Michael Mongan in Kyabram. The complainant lived with the children in the former matrimonial home at 13 Lancaster Street, Kyabram.
11 The prosecution case is that, at approximately 2.36pm on 24 July 2018, the applicant attended the complainant's premises. CCTV footage depicts the applicant walking up the driveway and entering the rear portico of the house through the side gate.
12 At 2.50pm, the applicant was seen tampering with the CCTV camera installed outside the premises, forcing it to face away from the back door.
13 At 3.11pm, the complainant arrived home from work. As she tried to unlock the side sliding door, the applicant who was hiding nearby, grabbed her from behind. The complainant started screaming and the applicant dragged her to the rear of the house, pushed her to the ground and told her to stop screaming.
14 It is alleged that the applicant then sat on the complainant and gaffer taped her mouth. The complainant managed to wriggle around and remove the gaffer tape from her mouth. The applicant attempted to gaffer tape her mouth several more times but the complainant managed to rip it off each time.
15 The applicant then demanded access to the complainant's residence, before noticing her keys on the ground and momentarily letting go of his grip. The complainant attempted to escape but was grabbed by the applicant from behind and placed in a tight headlock position. The applicant then threw the complainant onto the ground and held her down, before hitting her head a number of times against the ground.
16 During the course of the alleged offending, the applicant attempted to secure the complainant's hands with a heavy duty cable tie but the complainant managed to break free. He then threatened to punch her if she didn't comply with his demands. At one point, the complainant was face down on the ground with the applicant sitting on her back straddling her before tying her wrists together with cable ties. As the applicant was restraining the complainant, a pair of ear plugs, an eye mask and a roll of heavy duty duct tape fell out of his jumper.
17 The complainant then told the applicant that the school bell had rang which meant the children would be home soon. The applicant quickly retrieved the keys to the premises and dragged the complainant inside the house. Once inside, the applicant forced the complainant to the floor on her stomach, sat on her back, and used cable ties to bind her ankles together.
18 When the applicant reached under his jumper, the complainant observed a length of rope tied around the waist of the applicant. She was then told by the applicant 'I've got things under here that you don't want to see'. The complainant asked the applicant whether he was going to kill her to which he replied, 'It depends what you tell me, but I will probably kill you and then I will go and kill your family'.
19 At this point, the children returned home from school and heard the complainant screaming. The applicant stepped outside and told the children that they needed to go to their grandmother's house. While the applicant was outside talking to the children, the complainant escaped through the front door, still bound by the wrists and ankles.
20 Once outside, the complainant saw a witness walking across the footpath and screamed for her to call the police and stated 'Dan is going to kill me'. The complainant, still bound at the hands and feet, then hopped across to the fence between her house and the adjoining property. She threw herself head first over the fence. She proceeded to the front door, knocking on it and asking for help. She was seen by a number of witnesses with the cable ties around her ankles. The complainant's neighbour opened the door and the complainant fell inside. Once inside she told the neighbours to call the police and stated that the applicant wanted to kill her.
21 At 3.30pm, the applicant was seen exiting the side gate, appearing to be carrying his jumper and unknown items under his left arm. He ran away from the premises.
22 As a result of the offending, the complainant suffered multiple abrasions to her face, elbow, hands, wrists, knees, ankles and back, as well as multiple contusions to her arms and legs. The complainant also complained of headaches.
23 Police were called and attended the scene. The applicant was arrested and interviewed the next day. He provided details of his relationship to police, but made no comment with respect to the alleged offending. During the course of the interview, the applicant made a number of statements indicative of his ill-feeling towards the complainant.
24 The respondent in this case, First Constable Amanda Carrod, provided a report dated 11 October 2018 in which she expressed concerns about the accused's previous apparent disregard for FVIOs and unwillingness to abide by Court orders, the premeditated nature of the offending, and whether or not even the most stringent conditions of bail would deter the applicant from committing further offences against the complainant.
25 In her evidence, the respondent also read out a letter provided to her by the complainant in which the latter expressed her extreme fear of the accused, and her conviction that if he was released, he would kill her.
26 The applicant is 39 years of age. Prior to his arrest and incarceration, he resided with his parents at 14 Poplar Street in Kyabram. He is a qualified accountant and was employed in this field for 12 years before obtaining his Diploma of Education in 2014. At the time of his arrest, he was in employment as a casual relief teacher at P-12 College in Kyabram, where he had worked for three years. He is enrolled in a Bachelor of Laws degree at Deakin University.
27 The applicant has the prior findings of guilt for breaching FVIOs referred to earlier, and no other criminal history.
28 Section 1B of the Act reads, in part, as follows:
(1) The Parliament recognises the importance of -
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty;
(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
30 Section 4AA of the Act sets out circumstances in which a 2 step test applies to the consideration of a grant of bail. Subsection (3) dictates that the 'show compelling reason' test applies to a decision whether to grant bail to a person accused of a Schedule 2 offence.
31 Section 4C of the Act has application where the 'show compelling reason' test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
32 Subsections (2) and (3) of section 4C indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of a compelling reason, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[1]
(1) A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that -
(a) there is a risk that the accused would, if released on bail -
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail; and
(2) The prosecutor bears the burden of satisfying the bail decision maker -
(a) as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3) In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must -
(a) take into account the surrounding circumstances; and
(b) consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
34 It is submitted on behalf of the applicant that a number of matters in combination demonstrate a compelling reason that justifies a grant of bail in this case. These are:
35 In respect of the question of unacceptable risk, it is asserted on behalf of the applicant that insofar as a risk that he would endanger the safety or welfare of any persons concerned, that can be mitigated to an acceptable level by the imposition of bail conditions including conditions preventing any contact with the complainant, geographical exclusions and a requirement he reside with his sister in Shepparton, which is some distance from the home of the complainant.
36 In respect of the risk of the applicant committing an offence whilst on bail, the applicant points to the fact that he has no prior history of doing so.
37 In respect of the risk of failing to answer bail, the strong ties of the applicant to the community and other matters are pointed to.
38 The respondent, on the other hand, submitted that the applicant has failed to demonstrate that a compelling reason exists that justifies a grant of bail. Moreover, the respondent contends that the applicant, if released on bail, would present an unacceptable risk of committing further offences, endangering the safety or welfare of the complainant, and interfering with witnesses. No reliance was placed on the risk of the applicant failing to answer bail.
39 In respect of the guiding principles set out in s 1B of the Act, counsel submitted that the first of these - namely 'maximising the safety of the community and persons affected by crime to the greatest extent possible' - should be given paramountcy in light of the proven history of animosity in this case. Counsel made particular mention in this regard of the nature of the applicant's breaches of the FVIOs, one of which involved the applicant gaining entry to the complainant's home, the locks of which had been changed, by removing tiles from the roof.
40 Ms MacDougall submitted that it was concerning that even 20 months after the separation, the rage of the applicant still ran 'white hot' at the time of the events and the subsequent interview.
41 She submitted that realistically, no bail conditions could make the obvious risk the applicant poses to the complainant an acceptable one. This was, she submitted in reference to the charge of aggravated burglary, a serious example of a grave crime, supported by a strong Crown case. The evidence of premeditation was concerning. The breach of the previous intervention orders was a powerful matter, going to the likelihood of the applicant complying with bail.
42 The meaning of 'compelling reason' was considered by Beach JA in the bail decision of Re Ceylan.[2] In that case, his Honour stated:
Similarly, an enquiry under s 4(4) as to whether an accused shows compelling reason why his or her detention in custody is not justified is an inquiry that involves a consideration of all of the relevant circumstances including the strength of the prosecution case and the history and personal circumstances of the accused. When one takes account of all of the matters required to be taken into account in a particular application, the question becomes whether there is compelling reason why the particular applicant's detention is not justified. For an applicant required to show 'compelling reason', a synthesis or balancing of all relevant matters must compel the conclusion that the applicant's detention in custody is not justified.[3]
While one must be careful not to substitute other expressions for the language used in the Act, compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified...While again one should guard against substituting the statutory language, in terms of resistibility, 'compelling reason' in s 4(4) of the Act might appropriately be described as a reason which is difficult to resist.[4]
44 I preface the following remarks with the acknowledgment that, of course, the allegations against the applicant are as yet unproven, and I understand that it is his intention to contest the charges.
45 I am required, when considering whether or not the applicant has shown the existence of a compelling reason that justifies the grant of bail, to take into account the surrounding circumstances, as that term is explained in s 3AAA of the Act. I am also required to take into account the surrounding circumstances if I come to consider the unacceptable risk test on being satisfied the compelling reason test has been made out.
46 The first matter required to be taken into account is 'the nature and seriousness of the alleged offending, including whether it is a serious example of the offence.'[5] On that score, there is no question the offending alleged is exceedingly serious. It is alleged that in daylight hours, and armed with items intended for use in incapacitating the complainant, the applicant went unlawfully onto her premises, interfered with a CCTV camera which might have recorded his later conduct, and then lay in wait for her. He grabbed her from behind and dragged her to a place of his choosing, forced her to the ground, sought to bind her wrists and gag her, forced her inside her own home away from prying eyes, and again forced her to the ground, this time binding her at the ankles. He threatened her most graphically and frighteningly as she was so bound and helpless.
47 This attack upon the complainant in her own home, which only came to an end when, fortuitously, she was able to escape, was calculated to, and did cause, great terror to the complainant. The alleged offending was pre-meditated and involved a significant degree of planning and the use of equipment taken along for the purpose of incapacitating the complainant. It was offending which was brazen, frightening and disturbing. Only the escape of the complainant prevented a continuation of, and possible escalation of, the offending. The threat to kill her and her family was especially chilling.
48 As to the strength of the prosecution case, the next matter required to be taken into account, on my assessment of it, the case is a wholly compelling one. Mr Rattray relied on the existence of what he described as an 'arguable defence', but to my mind, the defence, as outlined briefly by him, sounded somewhat optimistic.
49 The next two matters in s 3AAA(1) are the applicant's criminal history and the extent of compliance with conditions of earlier grants of bail. As indicated, his criminal history is limited, and there is nothing to indicate previous breaches of bail, but the criminal history, to my mind, is telling of two things. First, the failure of the applicant to come to terms with the break-up of his marriage, and secondly, his refusal to properly respect orders of the Magistrates' Court in connection with his former wife. Both of these things are not of assistance to him in this application.
50 The fifth matter to which regard must be had includes, as part of it: (e) 'whether, at the time of the alleged offending, the [applicant] - was otherwise serving a sentence for another offence.[6]' On that score, at the time in question, the applicant was only a little over six weeks into a six month adjourned bond which he received for his multiple breaches of the FVIOs. It seems to me that that is an important matter.
51 Section 3AAA(1)(g) concerns the applicant's personal circumstances, associations, home environment and background. These are all very much to his credit.
52 Section 3AAA(1)(j) concerns any known view of an alleged victim of the offending as to the grant of bail. The former wife of the applicant made that very clear. She is terrified of him, fears he will kill her, and does not want him to be released on bail.
53 The length of time the applicant would be likely to spend in custody if bail is refused is the subject matter of s 3AAA(1)(k). On that score, it is clear that if the applicant chooses to go for trial, a substantial period of between 18 months and two years would elapse before trial. A delay such as this is always of concern, but I note there is nothing to suggest that any delay in this case is likely to be longer than that which would, unfortunately, be normal.
54 Finally, of the matters I will specifically mention, s 3AAA(1)(l) of the Act touches on the likely sentence should the applicant be found guilty. In this case, as I indicated during the hearing of the application, the applicant could expect to receive a substantial term of imprisonment if he is found guilty of the offences with which he is charged, which in my view would far exceed any time spent on remand.
55 In my view, the applicant has fallen well short of establishing that a compelling reason exists that would justify the grant of bail. None of the matters upon which reliance is put, alone or in combination, is capable of discharging the burden which rests upon the applicant.
56 Far from being satisfied of forceful, and therefore convincing reasons in justification for bail, the circumstances, as I see them, clearly point to the need for the applicant to be kept in custody pending trial.
57 I say, for the sake of completeness, that had there been matters which to my mind, amounted to a compelling reason under s 4C, I would have been satisfied that, in the second step of the two-step test, there would be an unacceptable risk of the matters set out in s 4E(1)(a)(i) to (iii), with a particular focus on the safety and wellbeing of the complainant. In the circumstances, the risk of further violence or intimidation by the applicant towards his former wife is significant, and entirely unacceptable.
58 In the circumstances set out above, the applicant's application for bail must be refused.
[6] [Applicant] has here been substituted for the accused.