Weaver v DPP [2006] VSC 102 (15 March 2006)

Last Updated: 28 March 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1417 of 2006

IN THE MATTER OF an application for bail by RICKIE HANSEN WEAVER

---

JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2006
DATE OF JUDGMENT:	15 March 2006
CASE MAY BE CITED AS:	Weaver v DPP
MEDIUM NEUTRAL CITATION:	[2006] VSC 102

---

CRIMINAL LAW – Application for bail – Applicant previously convicted of offence under s.22 of Crimes (Family Violence) Act 1987 – Need to show cause why bail should be granted – Strong evidence of good character – Bail granted – Bail Act 1977, ss.4(2)(d) and 4(4)(ba).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.D. Hennessey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr F.R. Gucciardo	James Kelleher

HIS HONOUR:

1 This is an application for bail pursuant to s.18 of the Bail Act 1977.

2 The applicant was born on 18 December 1963 and is currently imprisoned at the Melbourne Assessment Prison, awaiting the hearing of charges of making a threat to kill and breaching an intervention order.

3 Between 1989 and 2004, the applicant lived in a de facto relationship with one Carmel Horsefelt and from that relationship was born a daughter, Lucette, who is now five years of age. Upon the relationship coming to an end, early in 2005 a dispute arose about access to the child and there followed proceedings in the Family Court which resulted in the applicant being granted supervised access at a contact centre in Bendigo.

4 Meanwhile, on 3 March 2005 Ms Horsefelt obtained an intervention order pursuant to the Magistrates' Court (Family Violence) Rules which, among other things, prohibited the applicant from knowingly being within 200 metres of the premises at which Ms Horsefelt was then living in Ballarat. Then, on or about 20 March 2005,

Ms Horsefelt moved to premises in Woodend relatively close to where the applicant was then living in Forest Street, Woodend, and she began to work at other premises which were nearby.

5 In June 2005 the applicant was arrested on charges of having breached the intervention order and of making a threat to kill Ms Horsefelt, and he was bailed to appear. But it appears that on 8 September 2005 those charges were struck out or withdrawn before the Magistrates' Court at Kyneton.

6 On 9 September 2005 the intervention order was varied so as to prohibit the applicant being within 200 metres of Ms Horsefelt's premises at Woodend and, later, in September 2005, the applicant was arrested on two further charges of breaching the intervention order, one charge of recklessly causing injury, two charges of breaching an interim intervention order, one charge of making a threat to kill Ms Horsefelt, and one charge of theft, as well as two charges of causing damage intentionally and one charge of using threatening words.

7 Those offences arose out of the applicant's conduct in deliberating damaging the car of Lucette's godfather and in driving his own vehicle either directly into the applicant's residence or alternatively into another vehicle so that it was driven into the applicant's residence to such an extent to cause it to be dislodged from its foundations.

8 On 1 November 2005, the applicant pleaded guilty to those charges before the Magistrates' Court at Bendigo and was convicted. On the charges of breaching the intervention order, recklessly causing injury, and breaching the intervention order, he was sentenced to six months' imprisonment, which was wholly suspended for a period of 12 months and, on the charges of making a threat to kill, theft and intentionally damaging property and using threatening language, he was placed on a community-based order for 12 months with a condition that he perform 125 hours of unpaid community work and undergo assessment for programs to reduce re-offending.

9 Early in February 2006, perhaps even shortly before that time, the applicant retained Messrs Galbally & O'Bryan to represent him in continuing family court proceedings against Ms Horsefelt, involving property and custody. Then on Monday 6 February 2006 at approximately 4.15 p.m. the applicant telephoned Mr Peter Ward, who is a member of Messrs Galbally & O'Bryan, and informed him that he was a client of the family law division of the firm and that he had had enough of spending money and that he was going to kill Carmel Horsefelt. He further stated that Ms Horsefelt lived at an address, which he gave, and that he lived at an address which he specified.

10 According to Mr Ward, the applicant spoke in a cool and chilling manner and Mr Ward, who is a very experienced criminal law solicitor, took the threat seriously. He contacted police immediately and the applicant was arrested later that day and charged with offences of threatening to kill and a further breach of the intervention order.

11 On Tuesday, 7 February 2006, the applicant appeared before the Magistrates' Court at Broadmeadows, representing himself, and applied for bail. He was then remanded to appear before the court on Friday 10 February 2006 for a further hearing of the bail application.

12 On Friday, 10 February 2006, the applicant appeared before the Magistrates' Court at Broadmeadows for the further hearing of the bail application, and on that occasion was remanded in custody to appear on Monday 13 February 2006.

13 On Monday 13 February 2006, the applicant again appeared before the Magistrates' Court at Broadmeadows, and on that occasion the Magistrate ruled that he considered that the applicant was an unacceptable risk and he remanded the applicant in custody to appear before the court for a contest mention on 5 May 2006.

14 Ordinarily a person accused of an offence and held in custody in relation to the offence is to be granted bail while he is awaiting trial.

15 Section 4(2)(d) of the Act provides, however, that:

"(d) if the court is satisfied -

(i) that there is an unacceptable risk that the accused person if released on bail would –

fail to surrender himself into custody in answer to his bail;

commit an offence whilst on bail;

endanger the safety or welfare of members of the public; or

interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person."

Section 4(4)(ba) of the Act further provides that:

"(ba) Where the accused person is charged -

with an offence against s.22 of the Crimes (Family Violence) Act 1987 of contravening an order in the course of committing which the accused person is alleged to have used or threatened to use violence and -

(i) the accused person has within the preceding 10 years been convicted or found guilty of an offence in the course of committing which he or she used or threatened to use violence against any person ...

the court shall refuse bail, unless the accused person shows cause why his detention in custody is not justified ...".

It is accepted that s.4(4)(ba) applies in this case by reason of the convictions before the Magistrates' Court at Bendigo on 1 November 2005.

16 In support of the application for bail, the applicant has deposed that he carries on business on his own account as a chemical spraying contractor and that, by reason of his incarceration, he is unable to complete contracts to be executed between January and March each year for local shires, land care groups and individual farmers. At the same time he faces lease costs of $709 per month in respect of his Landcruiser vehicle, $407 per month in respect of his Mule spray and $555 per month in respect of his Brumby boom spray. He further states that earlier this year he leased a house at Tylden at a rent of $640 per month and the rent is now already one month in arrears and that he has incurred very substantial legal costs in the Family Court and owes considerable amounts of money to his lawyers.

17 The applicant submits that if he is forced to remain in gaol until 5 May 2006, his business is likely to be forced into liquidation and he may well face personal bankruptcy.

18 He adds that he is further prejudiced by his incarceration in that he was booked to start a 14-week men's anger management course at Sunbury Community Health Centre commencing on 13 February 2006 as part of his community-based order and that so long as he is in gaol he is prevented from attending the course.

19 The application is supported by the applicant's mother and sister-in-law and a lady friend of the applicant, all of whom are present in court, and also by further oral evidence given by Mr Holdenson of Her Majesty's counsel as to the character and disposition of the applicant. Mr Holdenson stated that he has known the applicant for between four and six years and that over those years he has worked with him on some seven or ten occasions on a property in central Victoria, whereby he has come to understand the applicant reasonably well and to be in a position to say something of his personality and disposition. Mr Holdenson stated that in his opinion the applicant was a personable man who by nature is not violent or nasty. He is rather, generally speaking, a decent member of the community who works hard and takes pride in his business and who is particularly fond of his daughter, Lucette.

20 Mr Holdenson advanced the opinion that the probable cause of the present difficulties was the frustration which the applicant has experienced as a result of the breakdown of his marriage and the difficulties which he has had in maintaining his relationship with his daughter. Mr Holdenson also suggested that the applicant is the sort of man that would well understand the significance and importance of complying with bail conditions and would be likely to observe them.

21 The application for bail is opposed on grounds that there is an unacceptable risk that the applicant if released would commit further offences whilst on bail; that there is an unacceptable risk that he would interfere with witnesses; and further that there is an unacceptable risk that if released he would endanger the safety or welfare of members of the public.

22 That contention is supported by oral evidence given by the informant, Senior Constable Muscat, who explained in some detail the events which gave rise to the charges of which the applicant was convicted in November of 2005, and stated that as a result of those events and a conversation with the applicant in hospital after the events, he was concerned that the applicant could cause harm to Ms Horsefelt, if released on bail. Constable Muscat said that he has the feeling that things have escalated from the original transgression in June last year, through to the events of September last year, and now to the threat to kill which it is alleged the accused made to Mr Ward, and that worse may be to come. Ms Horsefelt has also informed the police that she is in fear of the applicant.

23 Senior Constable Muscat added that the applicant has twice admitted the threat to kill with which he stands charged, once on 6 February 2006 during a bail hearing conducted at the Broadmeadows Magistrates' Court and once more on 7 February 2006, during a bail hearing conducted before the Broadmeadows Magistrates' Court, and that on 13 February 2006, the applicant stated before the Broadmeadows Magistrates' Court that he had failed to keep an appointment for the initial session of the anger management class.

24 Plainly, there is a possibility that if the applicant is released on bail he may commit another offence directed at Ms Horsefelt and perhaps endanger her welfare. Given the history of this matter since the breakdown of the applicant's relationship with Ms Horsefelt, his previous acts of violence towards her, and, as it would now seem, towards others connected with her; his prior convictions for breach of the intervention order, and the fact that he is alleged to have committed the offence for which he is at the moment held in custody while serving a suspended sentence of imprisonment and a community-based order, it seems to me that there are a number of reasons to suppose that if released he would offend again.

25 On the other hand, I am mindful of the severe economic consequences for the applicant of being kept in custody until the date of the contest mention, and perhaps beyond. Those consequences are or would be very serious and it must always be borne in mind the applicant is presumed to be innocent of the charges which he faces, until and unless he is proved to be guilty of them.

26 That is not to say that I regard the Crown case as weak. To the contrary, there are the applicant's admissions, whatever be their effect, and the evidence of Mr Ward, as well as the evidence of the relationship, which is borne out by the events and convictions which have occurred and been entered since the relationship ended. But as it stands, I take the view that the applicant has shown cause why he should be released.

27 I am concerned about the risk of re-offending and about possible harm to Ms Horsefelt if he is released on bail. All things considered, however, I think that the risks may be reduced to an acceptable level by imposing conditions of the kind which have been suggested by Senior Constable Muscat.

28 They include a surety of a significant amount. He has suggested a sum of $100,000, but there appears to be some difficulty for the family in raising that amount. I contemplate a figure of $70,000. And that the applicant is not to attend at the township of Woodend. That he is to reside with his mother Noelene Weaver at 17 Parry Street, Seymour and to report to the Seymour Police Station twice daily, at hours which I shall specify. And, further, that he is to be prohibited from assaulting, molesting, intimidating, threatening, telephoning, approaching or contacting Carmel Horsefelt or Lucette Horsefelt and that he be prohibited from damaging property owned jointly or otherwise by Carmel Horsefelt or causing another person to engage in conduct of that kind.

29 I should say that, but for the evidence of Mr Holdenson and a report prepared by Mr Bernard Healey, clinical psychologist, of 7 March 2006, in which Mr Healey refers to the relationship which the applicant has newly established with the lady who attends here today in support of his application, I would not have been disposed to grant bail. I do so only because I am persuaded by what has been said by Mr Holdenson and the existence of that relationship that the applicant will abide by the conditions which I set.

---