Viavattene v R

Court of Criminal Appeal (NSW)|2018-09-05|Before: Hoeben CJ, McCallum J, Beech-Jones J, Wilson J, Hulme J, Hulme AJ, Campbell J, Basten JA

Solicitors: In person (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/220614

Judgment

THE COURT: This is an application made pursuant to s 49 of the Bail Act 2013 (NSW) for release on bail pending the hearing of an appeal to the District Court against convictions entered in, and sentences imposed by, the Local Court.
This Court has jurisdiction to hear the application by the operation of s 67(1)(e) of the Bail Act which enables the Court to hear a bail application for an offence if a bail decision has been made by the Supreme Court. On 21 July 2018 Wilson J refused the applicant bail in respect of the offences the subject of this application (R v Peter Viavattene, unreported, 21 June 2018, Supreme Court). A further application for bail was refused in the District Court by Herbert DCJ on 30 July 2018 (R v Peter Steven Viavattene, unreported, 30 July 2018, District Court).
The authorities in this Court confirm that the release application must be dealt with "de novo" that is by way of a fresh hearing (see for example R v Kugor [2015] NSWCCA 14 at [4] per Hoeben CJ at CL, R A Hulme J and R S Hulme AJ agreeing; R v Campbell [2015] NSWCCA 173 at [4] per R A Hulme J, Hoeben CJ at CL and Campbell J agreeing), although there is some scope to pay regard to the findings of the judge at first instance (Director of Public Prosecutions (NSW) v Tony MAWAD [2015] NSWCCA 227 at [8]; Trinh v R [2016] NSWCCA 110 at [28] per Basten JA and at [40] per McCallum J).

The Offences

As one aspect of the release application is that Mr Viavattene's appeal has reasonable prospects of success, it is necessary to outline the prosecution case and the Presiding Magistrate's findings (see Bail Act s 18(1)(j)). To the extent that the following addresses the merits or otherwise of the applicant's appeal it must be emphasised that that is ultimately a matter for the District Court to determine and that Court should not feel inhibited in determining the appeal by this Court's observations.
In June 2017, the applicant was charged with nine offences of stalking or intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (the "CDPVA"), one charge of knowingly contravene an apprehended violence order ("AVO") contrary to s 14(1) of the CDPVA and four charges of using a carriage service in a manner that was menacing, harassing or offensive contrary to s 474.17(1) of the Criminal Code 1995 (Cth). The offences were all said to have to been committed between 10 June 2017 and 20 June 2017.
The hearing of the charges took place in the Local Court, sitting in Lismore, over three days between 10 November 2017 and 6 April 2018. At some point the charges under the Criminal Code were withdrawn, apparently because the applicant did not consent to them being heard summarily (see Morgan v District Court of New South Wales [2017] NSWCA 105; "Morgan").
On 6 April 2018, the Presiding Magistrate dismissed two of the intimidation charges but found the applicant guilty of the remaining seven charges and the one charge of contravening the AVO. On the same day, his Honour sentenced the applicant to a total term of imprisonment of 28 months with a cumulative non-parole period of 22 months. The sentence was backdated to 6 February 2018 because the applicant had served a period of pre-sentence custody. The applicant's earliest date for release is 6 December 2019.
As noted the applicant has appealed his convictions and sentences in the Local Court. His appeal is listed for hearing in the District Court on 8 October 2018. Accordingly, as at the date of this application the applicant has been in custody pending his appeal for approximately five months. He faces a further period in custody of just in excess of a month before his appeal is heard.
On this application the Court was provided with the transcript of the hearing in the Local Court as well as a useful summary of the prosecution and defence cases. Overall the prosecution case in respect of the intimidation offences was that the applicant had placed on "YouTube" certain videos, a link to which was emailed to the Commissioner of Police and forwarded down the chain of command. In the videos, scurrilous allegations were made against various police officers in the part of the North Coast where the applicant resided, as well as his former neighbours, a teacher and principal of the school previously attended by the applicant's daughter and a solicitor who acted for an opposing party in civil litigation against the applicant and his wife.
The existence and contents of the videos were brought to the attention of each of the relevant victims. At some point the videos were taken down from "YouTube" however a large number of screen shots were taken and tendered in the Local Court proceedings. Part of the prosecution case was that, upon the applicant being arrested in June 2017, he made admissions to having posted the videos on YouTube.
The evidence of one of the police officers who saw the videos was that they were footage of himself and other officers attending the applicant's house for a bail check and the footage included a conversation between the officer and the applicant which contained a reference to the officer's wife. The video included captions labelling the officer a "paedophile cop" and other police officers as "crooked".
The applicant's former neighbours gave evidence in the Local Court that in the month prior to June 2017 human faeces were thrown onto their roof from the direction of the applicant's premises. They also saw the videos on YouTube which depicted them. The video included written material that made scurrilous allegations including that one of the neighbours was a "rock spider", a "peeping tom" and was "peeping" on the applicant's daughter. One of these neighbours recognised the applicant's voice in the video. During these events a provisional AVO was in force against the applicant nominating the male neighbour as the protected person and which operated to prohibit, inter alia, his "harassment" by the applicant.
The teacher and school principal both gave evidence that the YouTube videos that were posted accused them of being involved in molesting the applicant's daughter. The solicitor who previously acted for an opposite party to the applicant in civil litigation gave evidence that he had previously been threatened by the applicant who had attended his office. He said that when he viewed a screenshot of the "YouTube" material concerning himself he became concerned that he might be confronted by the applicant or "knocked off my bike".
One particular aspect of the evidence adduced by the prosecution should be noted. The office manager at the local school gave evidence that while she was at work on 29 May 2017 she received a call from an unknown male asking to speak to the school principal. She told the caller that the school principal was unavailable. She recalled that the caller then said to her to advise the school principal that "I know where he lives and I'm going to bring the boys around and tear him limb from limb". The office manager said she received another telephone call on 19 June 2017 from the male who again asked her about the school principal. The office manager said the caller told her that he was "going to kill [the principal] for what he did to" and then referred to a person with the same first name as the applicant's daughter. The caller then stated "I'm going to put an axe in his head and blood and guts is going to come out and then I'm going to fucking kill him, excuse me for swearing, and that he's dead".
Although the office manager stated she did not recognise the voice of the person on the end of the phone, there was evidence pointing to the applicant as the person who made the call. Telephone records were tendered in the Local Court which identified a call as having been made from the applicant's number to the school on 19 June 2017. Further, the school principal was the subject of one of the YouTube videos and, as noted, other evidence pointed to the applicant as the person who posted the videos.
The applicant did not give evidence in the Local Court. However, it appears that the substance of his defence to the charges was that the evidence of the YouTube videos was fabricated, that all of the witnesses were liars, that there was no connection between the applicant and the YouTube videos and that otherwise, as the videos were only posted and their attention brought to the Commissioner of Police, there was no "intimidation" of any of the victims. As noted by Wilson J, in the absence of any evidence from the applicant, there was no evidence to support his allegations that the evidence was fabricated, although of course the burden of proof remained on the prosecution throughout.
In relation to the intimidation offences, s 13(1) of the CDPVA provides that it is an offence where a person "stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm". Section 7 defines "intimidation" as follows: 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
After considering the evidence, the Presiding Magistrate found that he was satisfied that the applicant had posted the "YouTube" videos and made the relevant phone calls. His Honour concluded that the conduct amounted to intimidation of another person and also found that "the only rational inference is that [the applicant so acted] with the intention to create the kind of harm that is envisaged by the section". In view of the findings of fact his Honour made, it followed that the provisional AVO was contravened although in this Court the applicant contended the reference to "harassment" excluded conduct that took place by electronic means.
As noted, one aspect of the applicant's case for release is the supposed strength of his case on appeal to the District Court. In his oral submissions various points were raised in support of that contention including that overall the conduct alleged against him could not amount to intimidation as defined in the CDPVA. It is not appropriate on a release application for this Court to embark upon an exegesis of the concept of "intimidates another person" in s 13(1) of the CDPVA or to exhaustively review the evidence to ascertain the strengths or otherwise of the appeal. It suffices to state that the definition of "intimidation" does not necessarily require that the relevant conduct be undertaken in the physical presence of the victim or even that there be direct communication without intermediaries between the perpetrator and victim. In the context in which it appears that these events occurred, there appears to have been more than sufficient material to support the conclusion, for at least a substantial number of the charges, that the applicant's conduct satisfied one or more of the sub-paragraphs of the definition of "intimidation" and that it was done with the requisite intent. We note that Wilson J reached the same conclusion.
Otherwise we note that before Herbert DCJ the applicant contended that, as the Local Court did not have jurisdiction to hear and determine the charges under the Criminal Code, it did not have jurisdiction to hear and determine the state charges. In his oral submissions Mr Viavattene put a number of variations to this argument including that the effect of Morgan is that when hearing a State charge of intimidation a court cannot receive evidence which suggests that that intimidation occurred by electronic means. All of these contentions clearly have no substance.
Overall, the Court is not convinced that overall the applicant's case for setting aside his convictions has much strength.
So far as sentence is concerned, at the time the applicant was sentenced he was 49 years old. As will be explained, he had health difficulties and family needs. Commencing from around 2010 he accumulated a number of convictions for assault, contravention of apprehended violence orders, intimidation and has also committed driving offences. He spent time in custody during 2014 and 2017. The evidence led by the prosecution, his criminal record and the Presiding Magistrate's comments all suggest he is a substantial menace to his local community. For the purposes of this application, it suffices to state that, if any of the applicant's convictions are maintained then it is difficult to envisage the applicant's period in custody being reduced such that he could be released before the end of this year.

Has Cause Been Shown?

On 28 February 2017, the applicant was charged with two different offences under s 13(1) of the CDPVA. He was initially refused bail but on 30 March 2017 was granted bail in the Supreme Court and remained on bail in June 2017. Accordingly, at the time the offences the subject of this application were committed, the applicant was on bail. It follows that these are "show cause" offences (Bail Act s 16B(1)(h)(i)).
Where the show cause test applies the Court must apply a two-stage test (Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83; "Tikomaimaleya"). The first stage requires a determination whether or not the accused person has shown cause "why his or her detention is not justified" (s 16A(1)). The second stage arises if cause is shown, as the court must then assess whether or not the person's release raises any bail concerns (s 17(1); s 16A(2)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s19). A bail concern is a concern that the person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence (s 17(2) and s19(2)). With the first stage, the justification or otherwise for a person's detention is to be determined by a consideration of all the circumstances whereas the unacceptable risk test requires that consideration only be given to the factors in s 18 (Tikomaimaleya at [24] to [26]) although it "may well be that matters that are relevant to the unacceptable risk test will also be relevant to the show cause test" (Tikomaimaleya at [24])).
The applicant has represented himself and experienced difficulties in articulating his case for bail. Accordingly, it is not a straightforward matter to identify the various factors that he contends amount to cause being shown. However, as best as can be ascertained from considering what was raised before Wilson J, and the material that has been filed on his behalf and his oral submissions, it appears to be contended that a combination of factors is said to warrant the conclusion that cause has been shown, namely, the likely success of his appeal, the inadequate medical treatment he has been receiving in custody, health difficulties suffered by his wife and her need for assistance, the financial hardship his family are incurring from his absence, the difficulties the applicant is experiencing in preparing his appeal in custody, the alleged fact that the DPP did not oppose bail when he was convicted, his conviction free period prior to at least 2009 and his previous record of complying with bail conditions.
We have already addressed the applicant's prospects of success of his appeal against his convictions. In short, the Court is not persuaded that the applicant has much likelihood of success on his appeal against his convictions or sentence and, in particular, any likelihood of success that would lead to him serving a substantially less period of time in custody than what is required by his existing sentences. In that regard, it is to be remembered that there is only now one month remaining before his appeal is heard. To refuse bail now would not render his appeal nugatory given that, from the time his appeal is listed, he is still to serve a minimum of 14 months in custody under his existing sentences.
The evidentiary material concerning the difficulties the applicant is experiencing in custody is inadequate. There is an assertion in a letter sent by the applicant's wife to the District Court sometime this year that the applicant was assaulted in custody, received a ruptured eardrum and suffers pain and severe headaches. There was also an assertion that he has previously been assaulted by a police officer and that was causing ongoing difficulties. This letter and the accompanying material refer to his family as effectively now being homeless and that his wife has "cervical and lumbar disc protrusions impinging on [her] spinal cord that causes severe and disabling pain and headaches" resulting in her being on a disability pension. She states that she requires her husband's assistance to care for and provide for her children who are aged nine and seventeen.
It is difficult for this Court to act on this material given the form with which it has been presented. Nevertheless, the Court is prepared to accept that the applicant's family is experiencing hardship from his absence and that the applicant is finding incarceration difficult as no doubt most persons do.
To the extent that the matters relevant to unacceptable risks can also inform whether a show cause has been established, the Court notes that there has not been any proper bail proposal put forward to the Court which would appear to ameliorate the risks to the various persons who have been subject to the applicant's behaviour over the previous years. In particular, the evidence concerning the making of the threats to the school principal is a matter that, by itself, would often prove fatal to any bail application.
Overall, giving the greatest weight that the Court permissibly could to the material put in support of the applicant's case for bail, we are not satisfied that cause has been shown.
Accordingly, the release application will be dismissed and bail refused.

Amendments 20 September 2018 - Paragraph number removed from "Has Cause Been Shown" heading, and subsequent paragraph numbers amended accordingly. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2018

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