Re Nagy [2020] VSC 878 (22 December 2020)

3 On 30 November 2020 the applicant gave notice of intention to make an application for bail in this Court. That application was heard on 21 December 2020.

4 For the reasons that follow, bail is granted on strict conditions.

5 Bradley Crawford, the deceased, lived in a caravan parked in the driveway of his mother's home in Borg Crescent, Scoresby. From there he trafficked a variety of drugs.

6 Whitfield was introduced to the deceased in June 2019. Thereafter she attended at his caravan on about 10 occasions to purchase drugs.

7 The applicant met Whitfield in July 2019. During a conversation between them in September 2019 Whitfield told the applicant she had been buying methylamphetamine from the deceased. During a further conversation between them on 13 September 2019 Whitfield told the applicant she owed money to the deceased. The applicant said words to the effect of 'fuck him, don't pay him', asked how much cash and what quantity of drugs were kept at the caravan and said he wanted to go there.

8 Just prior to 4.00am on 15 September 2019, Whitfield and the applicant exchanged text messages. Whitfield wrote 'we need to do this job like now'. They arranged to meet.

9 At 4.41am that day, CCTV footage from the Aria Hotel in Southbank shows the applicant driving from the hotel in a Mazda utility with Cugurno-Pfabe and Oldis as passengers. Prior to leaving the hotel carpark, the applicant is captured on that footage retrieving a pair of work gloves from the rear tray of the utility where a black handled, white headed mallet is also visible.

10 At approximately 5.38am, CCTV footage from a carpark at the Ferntree Gully Hotel depicts Whitfield meeting the applicant's group of three. Prior to all four leaving the carpark in Whitfield's Volkswagen, the applicant can be observed reaching into the rear tray of the Mazda utility, near the location of the mallet.

11 CCTV footage from Borg Crescent, Scoresby shows Whitfield's Volkswagen arrive and park in that street about 20 minutes later.

12 Witnesses, including the deceased's mother and her neighbours, report hearing loud banging noises, muffled voices and a car taking off at speed at about 6.00am.

13 At approximately 6.32am, CCTV footage from the carpark at the Ferntree Gully Hotel depicts Whitfield return in her vehicle with the applicant, Cugurno-Pfabe and Oldis as passengers. That footage shows Cugurno-Pfabe exiting the vehicle carrying a white plastic bag. The applicant, Cugurno-Pfabe and Oldis then returned to the Aria Hotel in the applicant's Mazda utility.

14 At approximately 7.01am, CCTV footage from the Aria Hotel in Southbank shows the Mazda utility parking and the three men walking towards the hotel. Cugurno-Pfabe can be seen re-arranging the white plastic bag and placing it down his pants.

15 The deceased was discovered in an unresponsive state at about 4.30pm that day. He had obvious facial injuries and his caravan appeared to have been ransacked. A wooden box containing cocaine was missing. A black handled, white headed rubber mallet with blood and hair on it was found.

16 During a later post-mortem examination conducted by Dr Lynch of the Victorian Institute of Forensic Medicine, the cause of death was unable to be determined. After noting significant injuries in the form of multiple bruises, abrasions and lacerations to the face in multiple planes and that there was resultant bleeding into the right and left maxillary sinuses, Dr Lynch stated the following:

Whilst the cause of death [of the deceased] remains undetermined, it is appropriate to make several comments. Whilst there was patchy bronchopneumonia noted and evidence of significant lung disease, in a young otherwise healthy man it would be unusual for this in itself to be an explanation for an individual's death. Toxicological analysis detected a number of drugs. Amphetamines and cocaine have the capacity to induce cardiac arrhythmias and thus contribution to death by these stimulants (amphetamines and cocaine) is not excluded. In terms of a possible contribution of the facial trauma to death, the impact to the head may have resulted in loss of consciousness and depending on the position of the injured individual after the incident, their airway may be compromised and lead to death as a result of cerebral hypoxia. In this instance, there was also fresh blood within the airways (as a consequence of the facial trauma) and this may have further compromised the capacity for adequate oxygenation.[2]

17 The applicant and co-accused were each arrested and interviewed on 11 December 2019. The applicant and Oldis gave 'no comment' interviews. Whitfield initially provided 'no comment' responses, but during a second interview admitted having attended at the location of the deceased's caravan with the applicant, Cugurno-Pfabe and Oldis in the knowledge that the others were going to 'roll' the deceased for drugs and money. She said that she went inside the caravan where she was joined by the applicant and Cugurno-Pfabe, who began to assault the deceased before she left. Oldis remained in her car as the driver.

18 During his interview, Cugurno-Pfabe admitted having travelled with the applicant, Oldis and Whitfield to the deceased's caravan. He stated that the applicant and Whitfield entered the caravan first. He then heard a commotion and followed them inside. He said that Whitfield was arguing with the deceased, causing a fight to break out in which punches were thrown. Despite observing the deceased to be bleeding from his head, Cugurno-Pfabe stated that he was still conscious when the group left.

19 Following his interview, Cugurno-Pfabe was recorded speaking with covert operatives inside his holding cell. He stated that he had attended the caravan upon being told that the deceased was 'holding', that he struck the deceased twice to the head with a hammer which he left behind and that his friend had placed the deceased in a choke hold while he took two ounces of methylamphetamine and one ounce of cocaine from the caravan.

20 The applicant and co-accused were released pending further enquiries.

21 As already noted, the applicant was charged and remanded on 7 August 2020.

22 The applicant has a criminal history of violent offending and breach of court orders.

23 On 18 March 2016 he was convicted of armed robbery and committing an indictable offence whilst on bail. He was sentenced to a community corrections order (CCO) for two years. The victim of the armed robbery was a sixteen year old boy whom the applicant threatened with a pruning saw while demanding his money as he, accompanied by others, went to a drug deal. The armed robbery was committed on 31 May 2015.

24 On 11 April 2016 the applicant was fined an aggregate amount, without conviction, of charges of possess methylamphetamine, dishonestly receive stolen goods, possess control weapon without excuse and possess dangerous article in a public place. The weapons/articles were a baseball bat, a hatchet and a five centimetre blade. The offences took place on 9 May 2015. These were the charges upon which the applicant was bailed at the time of the armed robbery for which he was sentenced on 18 March 2016.

25 On 26 October 2017 the applicant was convicted of aggravated burglary (offensive weapon), theft, recklessly cause injury and committing an indictable offence whilst on bail. He was sentenced to an aggregate of 72 days imprisonment (being the period of pre-sentence detention) and placed upon a CCO for three years.

26 The bail pertained to the armed robbery charge as detailed in paragraph [23] above. The aggravated burglary was committed with a co-offender. The offence date was 27 September 2015. Both men were wearing dark balaclavas and gloves. The applicant was armed with a double barrelled handgun and a tomahawk. The co-offender was armed with a steel bar. The applicant and co-offender confronted the occupant of a private dwelling in the early hours of the morning, threatened violence and smashed their way into the house. Thereafter the applicant hit the victim with a 'solid pillowcase' before stealing about $1,500.

27 It follows that the applicant was subject to a CCO at the time of the alleged murder and armed robbery.

28 The applicant also has subsequent convictions. On 4 November 2020 he was convicted and fined an aggregate amount with respect to possession of a schedule 4 poison, possession of a prohibited weapon without approval and driving whilst authorisation suspended.

29 Bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist which justify the grant of bail.[3] In determining whether exceptional circumstances are demonstrated, the Court must take into account the relevant 'surrounding circumstances' including, but not limited to, those prescribed in s 3AAA(1) of the Act.

30 The meaning of exceptional circumstances is well known. Variously expressed, it means that the circumstances must unite to produce a situation that is something other than ordinary, that is exceptional. The test is stringent, but not impossible to meet.

31 If exceptional circumstances are satisfactorily shown, the Court must still refuse bail if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. In determining that issue the Court must again have regard to the surrounding circumstances delineated in s 3AAA(1). The Court must further consider whether there are any conditions of bail that might be imposed to mitigate the risk so that it is not unacceptable.[4]

32 The Court must also take into account the guiding principles set out in s 1B(1) of the Act.

33 The applicant relies upon a combination of factors to establish the existence of exceptional circumstances.

34 First, difficulties in the prosecution case. While conceding that he is charged with serious offences, the applicant submits that the prosecution case with respect to murder is 'not strong' given the difficulties in proving the cause of death. In this regard the applicant refers to evidence of Dr Lynch, my characterisation of the issue as a 'hurdle' in Re Cugurno-Pfabe[5] and Tinney J's observation in Re Oldis that the prosecution case 'could not be described as an especially strong one'.[6]

35 Second, parity. The applicant notes that each of his co-accused has been granted bail. It is submitted that the principle of parity applies.

36 Third, delay and conditions of custody. The applicant has been in custody since 7 August 2020. The charges are next listed for a contested committal commencing 24 May 2021. The applicant notes that the effect of the delay was a live consideration in each of the successful bail applications by the co-accused. The applicant further contends that the impact of the COVID-19 virus upon conditions in custody should also be considered.

37 Fourth, the absence of any prior convictions for failing to answer bail or contravening a 'conduct condition' of bail from his criminal history. It is further submitted that while the applicant has twice been convicted of committing an indictable offence whilst on bail, he did comply with very strict bail for some 22 months from 8 December 2015 until 26 October 2017, being the dates he was respectively bailed and sentenced for the aggravated burglary and associated charges. The applicant also submits that his attitude to court orders may be gleaned from his successful completion of the two year CCO imposed on 18 March 2016 and his near completion of the three year CCO imposed on 26 October 2017 prior to the alleged offending.

38 Fifth, the availability of treatment and bail supports. A Court Integrated Services Program (CISP) report dated 16 December 2020 assesses the applicant as suitable for CISP case management. He has not previously received CISP support. Further, the applicant submits that he is able to maintain regular appointments with his general practitioner. A letter to this effect was provided to the court.

39 Sixth, youth. The applicant notes that he has only just turned 24 years of age.

40 Seventh, stable accommodation, employment and ties to the jurisdiction. The applicant points to the strong support provided by his mother and father. If granted bail, he proposes to reside in their home. The applicant's father, David Nagy, has provided a letter confirming that the applicant will have full-time work five to six days a week in the family asphalt business.

41 The applicant's mother, Michelle Nagy, gave viva voce evidence at the hearing of the bail application. She was an impressive witness. She described her detailed observations of her son's physique and demeanour during the years he was taking drugs. She said that she had not observed that demeanour since 2016. She said that if granted bail to reside in her home, she would enforce a strict regime on the applicant which would afford him little privacy. She undertook to contact the informant should she be aware that the applicant was in breach of any bail condition.

42 The further tie to the jurisdiction relied upon is the applicant's partner, Casey Thomas, and their infant daughter, born on 10 December 2020. Ms Thomas has lived with the applicant's parent's since his arrest in August. Mrs Nagy, who no longer works outside the home, provides assistance and guidance to Ms Thomas. The applicant first saw his daughter during a visit by Ms Thomas and Mrs Nagy to the Metropolitan Remand Centre on 18 December 2020.

43 Eighth, a surety. Mrs Nagy swore an affidavit offering the equity in the family home as surety for the applicant's bail. During her viva voce evidence, Mrs Nagy stated that the equity was about $550,000. She confirmed that she understood the consequences in the event that the applicant was granted and breached bail.

44 With respect to unacceptable risk, the applicant submits that the imposition of strict conditions will mitigate the risk of him reoffending. To this end the applicant proposes conditions including a static address, curfew, compliance with CISP, reporting and regular, supervised urine drug screens.

45 The respondent does not seek to persuade the Court that it cannot and should not be satisfied that the applicant has demonstrated exceptional circumstances. This position, most fairly adopted, rests upon the observations as to the relevant s 3AAA(1) factors made in the three decisions granting bail to the co-accused and the operation of the principle of parity.

46 The respondent does submit that the applicant poses an unacceptable risk of committing an offence whilst on bail.[7]

47 The respondent points to the applicant's history of violent offending and draws a comparison between it and the offending alleged. The respondent also submits that it is not clear that the applicant's use of drugs is behind him. It was argued that the current allegations are more explicable if the applicant was involved with drugs rather than if he was 'clean'.

48 The respondent also points to the applicant's history of committing indictable offences whilst on bail and the fact that he was subject to a CCO at the time of the alleged offending and the subsequent offending.

49 The respondent further submits that this risk of further offending of a violent kind cannot be ameliorated by conditions. While accepting the veracity of Mrs Nagy, it is argued her good intentions and supervision will not be sufficient to guard against the self-interest of the applicant. Any report she may make to the informant as to the applicant's conduct could only happen after a breach had occurred. Therefore it would be inadequate to prevent the risk from materialising.

50 Finally the respondent notes that the family of the deceased oppose the grant of bail.

51 In my view the applicant has demonstrated the existence of exceptional circumstances that justify the grant of bail.

52 Given the position of the respondent, it is unnecessary to repeat here the analysis of the relevant factors recorded in the decisions granting bail to each of the co-accused. It suffices to note, particularly, that there are triable issues in the Crown case (against all accused) with respect to statutory murder. And, I apply the principle of parity. In regard to the latter, I adopt the careful analysis of the application of the principle to bail decisions by Tinney J in Re Oldis.[8]

53 Turning to the issue of unacceptable risk, there are differences in the circumstances of the applicant in comparison with his co-accused. His criminal history is a troubling factor. After anxious consideration I have concluded that there is a risk that the applicant will commit an offence while on bail but when regard is had to the surrounding circumstances and the imposition of appropriate conditions, that risk is not an unacceptable risk.

54 While the applicant has convictions for instances of serious violence in the context of his drug use and the current allegations concern violence in the broader context of a drug milieu, the applicant has the benefit of a number of protective factors. His mother is an intelligent and informed observer of his habits and demeanour. She intends to be proactive in her observation. Mrs Nagy's support of the applicant is unwavering but it is not unconditional. I accept that should she become aware of any drug use by the applicant, she would immediately contact the informant. The offer of the equity in her home underscores her commitment.

55 The fact that Ms Casey and the applicant's new born daughter also reside in Mr and Mrs Nagy's home provides incentive for the applicant to abide by his bail conditions.[9] He has employment, treatment options and support from numerous persons and organisations. He has never before been engaged with CISP.

56 The applicant's prior convictions for committing an indictable offence while on bail relate to events five years ago. The current allegations notwithstanding, it is to be hoped that applicant, now aged 24 years and new father, has rather more maturity the 18 or 19 year old, whose drug habit was then 'raging'.[10] I also consider the nearly two year period the applicant spent on bail to 26 October 2017 to augur well. The fact that during the time he was subject to CCOs he did not return a positive drug urine analysis is similarly encouraging.

57 The applicant will be admitted to bail on his own undertaking, with one surety in the amount of $200,000 to attend the Magistrates' Court of Victoria on 24 May 2021, subject to the following conditions:

(a) He reside at [redacted], in the State of Victoria, and not change that place of residence without leave of the Court;

(b) He remain at those premises between the hours of 9.00pm and 6.00am each day for the duration of the bail;

(c) He present himself at the front door of the premises during those curfew hours at the request of any member of Victoria Police;

(d) He report to the Mornington police station each Monday, Thursday and Saturday between the hours of 7.00am and 7.00pm;

(e) He abstain from the consumption of any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic), except as prescribed by an appropriately qualified medical practitioner;

(f) He undertake three supervised urine drug screens per week (Monday, Wednesday and Friday) with the results of those screens to be sent to the informant;

(g) He abide by all lawful directions of CISP, including attendance and active engagement and participation in all appointments and programs recommended by them;

(h) He not contact, directly or indirectly, any co-accused or witnesses for the prosecution, save for the informant;

(i) He surrender any passport or any other travel documents he may have to the Mornington police station within 48 hours of this order, and not apply for another passport or any other travel documents; and

(j) He not attend other points of interstate or international departure.

[1] Re Whitfield [2020] VSC 632 ('Re Whitfield'); Re Cugurno-Pfabe [2020] VSC 687 ('Re Cugurno-Pfabe') and Re Oldis [2020] VSC 769 (Re Oldis).

[2] Autopsy Report Dr Matthew Lynch (undated), [8]. Although this report was not tendered in evidence on this application, this excerpt was quoted in Re Cugurno-Pfabe at [15].

[3] Bail Act 1977 (Act), ss 4AA(1), 4A(1A) and 4A(2). The applicant is charged with a Schedule 1 offence.

[6] Re Oldis, [51]. It is to be noted that his Honour stated that the case against Oldis was 'significantly weaker' than that against Whitfield and Cugurno-Pfabe.

[7] The written material filed by the respondent also referred to the risk of the applicant failing to surrender into custody in accordance with the conditions of bail, endangering the safety or welfare of any person and interfering with a witness or otherwise obstructing the course of justice. However, at the hearing of the application, the respondent confined the argument to the risk of offending.

[9] The applicant is the respondent to a Family Violence Order (FVO) made in favour of Casey Thomas. The FVO, sought by Victoria Police, was made by consent and without admissions. It is to be hoped that the change in his family structure and living arrangements will assist the applicant to behave appropriately and respectfully in all of his relationships. It is to be noted that at the hearing of the application the respondent did not advance the FVO as a reason why bail should be refused.

[10] DPP (Vic) v Nagy [2017] VCC 2049, [17], [24].