Re De Stefanis [2023] VSC 513 (29 August 2023)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

IN THE MATTER of an application for bail

Between:

FRANCO DE STEFANIS	Applicant

-and-

FIRST CONSTABLE BENJAMIN MURRAY	Respondent

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	25 August 2023
DATE OF WRITTEN REASONS:	29 August 2023
CASE MAY BE CITED AS:	Re De Stefanis
MEDIUM NEUTRAL CITATION:	[2023] VSC 513

CRIMINAL LAW — Application for bail — Charges of stalking, threat to kill, threat to inflict serious injury, breaching personal safety intervention order (“PSIO”), and using phone to menace — Threatening phone calls to receptionist at area mental health service attended by applicant — Applicant, aged 56, has paranoid schizophrenia — Applicant on summons for multiple charges of threats to employees of same service 12 to 18 months earlier — Applicant may have been psychotic at time of some or all alleged offences — Possible defence of mental impairment — PSIOs now in place for workers allegedly threatened — Nearly three months in custody since arrest — Limited criminal history — Usually on community treatment order when in community — Taking depot injections voluntarily in custody — Whether exceptional circumstances justifying bail — Whether, if bailed, unacceptable risk of offending, endangering safety or welfare of others, or interfering with witnesses — If found guilty, very unlikely to be imprisoned at all or any further — Accommodation available — Support worker willing to assist — Exceptional circumstances established — Asserted risks not unacceptable — Bail granted on own undertaking with conditions — Released on inpatient assessment order under Mental Health Act 2014 (Vic).

APPEARANCES:	Counsel	Solicitors

For the Applicant	Mr J. Anderson	Leanne Warren & Associates

For the Respondent	Mr R. Elishapour	Victoria Police, Legal Practice Group

Overview
1 On 25 August 2023, I heard an application for bail by Franco De Stefanis. I ordered that he be released on his own undertaking with conditions, including that he be transported from the prison to a designated mental health service (“DMHS”) at either Shepparton or Sunshine under the current inpatient assessment order, and, upon his discharge from the DMHS, he is to reside at his motel address in Shepparton.
2 I gave very brief reasons ex tempore and, with the concurrence of the parties, deferred giving more detailed reasons until today. Those reasons (which I have left largely in the present tense) follow.
Summary of allegations
3 On 2 June 2023, Mr De Stefanis, aged 56, was arrested and charged with stalking, threatening to kill, threatening to inflict serious injury, breaching a personal safety intervention order (“PSIO”), and using a phone in a menacing manner. He has remained in custody since his arrest which is now nearly three months.
4 The events giving rise to the charges occurred in Shepparton, where, until his arrest, Mr De Stefanis lived alone in a motel. The prosecution case is that, on 2 June, he made four threatening phone calls over a short period to a receptionist at the Goulburn Valley Area Mental Health Service (“the service” or “GVAMHS”). Mr De Stefanis has been a client of the service for about 20 years.
5 In particular, the allegations may be summarised in this way. In the first call, it is said that Mr De Stefanis introduced himself as “General Franco”, as is his deluded way at times, and demanded to speak to particular employees of the service. He then screamed at the receptionist Brandy Cross and called her a “fucking cunt”, before hanging up.
6 Five minutes later, he called again, this time saying to Ms Cross that he should call his daughters and she should have a “scrag fight” with them. He also called himself a “killer” and said he was going to kill everyone at the facility. He kept screaming at Ms Cross and again called her a “cunt”, before she hung up.
7 In the third call, which Ms Cross recorded in part on her phone, it is alleged that Mr De Stefanis said that he was a “professional killer” and that he “owns the bitch”, meaning Ms Cross. He also said he was going to “gut” the mental health team. Eventually, he hung up.
8 In the fourth and final call, Mr De Stefanis is alleged to have said that Ms Cross had to understand why he killed Annette Stevens and her daughter. (I interpolate that Ms Stevens is a former employee of the service. She is not dead. Nor is her daughter.) He demanded to speak to the manager, Paul Moffatt. When Ms Cross explained he was not available, Mr De Stefanis hung up.
9 Later that afternoon, he was arrested by police at his motel room. He was deemed unfit for interview. On multiple occasions, he told the independent third person arranged for the interview that nothing he said could be used in court because he has diplomatic immunity. It is alleged that, while under caution, he told police that he “owned” Ms Cross and that he threatened to kill her and Ms Stevens.
10 In the materials before the Court is a report of 26 June 2023 by Esther Oguntade, who is a mental health nurse and senior clinician with the Mental Health Advice and Response Service (“MHARS”) at the Shepparton Magistrates’ Court. Ms Oguntade explained that Mr De Stefanis has an “established history of chronic schizophrenia complicated by his itinerant lifestyle and ongoing substance abuse”. She said that he is a “case managed client of [the service]” and is on a community treatment order (“CTO”) under the Mental Health Act 2004 (Vic). At the time of writing her report, that CTO was due to expire on 8 August. In her opinion, Mr De Stefanis presented as floridly psychotic on 6 June. He was admitted to the Acute Assessment Unit of the prison for ongoing assessment and treatment. She concluded her report by saying that, in the event that Mr De Stefanis receives a non‑custodial disposition or he is released on bail, the “key recommendation for treatment and follow‑up” is that he “return to Shepparton under the care of his mental health team and [be] supported via NDIS [i.e., the National Disability Insurance Scheme]”. Ms Oguntade also gave viva voce evidence before me, which I shall return to later in these reasons.
Other charges
11 At the time of the calls on 2 June, Mr De Stefanis was on summons for five charges of threatening to kill, one of threatening sexual assault of, and one of making a harassing call to, persons connected with the same service in Shepparton. These charges arose out of separate events in November 2021 and February, June and July 2022.
12 The first of the threats is alleged to have occurred when Mr De Stefanis resisted compulsory treatment under the Mental Health Act. It is plain that he was very unwell at that time.
13 Some of the threats (alleged in both the charges on summons and the new charges) involve talk of shotguns. But, as his counsel Mr Anderson pointed out, there is no evidence either that Mr De Stefanis has ever possessed or had access to firearms or of his attempting to carry through with any of these threats.
14 Ms Cross (the receptionist) is also said to be one of the persons threatened or harassed by Mr De Stefanis on the earlier occasions (in February, June and July 2022). As I understand it, this behaviour formed the basis for the making of the PSIO protecting her, that he allegedly breached by his phone calls on 2 June.
15 Mr De Stefanis was not charged on summons with these older matters until September 2022, and the matter was not listed for mention until January this year. Presumably, the delay, is explained, at least in part, by the thought that he may have been psychotic at the time of some of these events. Similarly, the decision to proceed by way of summons, rather than by way of charge and bail or remand, may well have reflected a belief by police that Mr De Stefanis did not present as any realistic risk of harm to others at that time.
16 In any event, the older matters still have not progressed to resolution. Along with the new charges, the older charges are listed for further mention in the Shepparton Magistrates’ Court on 18 September.
Bail refused by magistrate
17 On 30 June 2023, Mr De Stefanis’s application for bail — which proceeded by way of submissions only, as the informant was unavailable — was refused in the Magistrates’ Court at Shepparton.
Tests for bail
18 In order to be granted bail on the new charges,^[1] Mr De Stefanis must establish exceptional circumstances that justify bail. This is because he is charged with offences falling under Schedule 2 of the Bail Act 1977 (Vic) while on summons for Schedule 2 offences.^[2]
19 If he clears that hurdle, bail must still be refused if the prosecution establish that he is an unacceptable risk of offending on bail, of endangering the safety and welfare of another, or of interfering with a witness or otherwise obstructing the course of justice.^[3]
20 Mr Anderson submitted that there are exceptional circumstances and that the risks asserted by the prosecution do not amount to unacceptable risks.
21 While Mr Elishapour, who appeared for the informant, did not formally concede that exceptional circumstances had been established, he went close to doing so. Instead, as we shall see, he focused his submissions mostly on the question of unacceptable risk.
Mental illness
22 As is apparent from Ms Oguntade’s report, and as may be apparent from the summaries of the alleged offending, Mr De Stefanis’s mental illness is serious. In particular, it is accepted that, for many years, he has suffered from paranoid schizophrenia, which is the source of his profound delusions. That is why he was a client of GVAMHS at the times of both sets of alleged offences. Indeed, he has been with that service for over 20 years. When in the community, he has been subject to a CTO for many years, and sometimes an inpatient treatment order (“ITO”).
23 As Mr Anderson pointed out, Mr De Stefanis has a range of grandiose delusional beliefs, many colourful, all pitiful. His recent custodial mental health file demonstrates that they include that he is a general, an Italian prince and a Mafia boss; that he built the Hadron Collider; that the Federal Police in Asia believe him to be the smartest person in the world; that a well‑known forensic psychiatrist (whom he names) sent a woman to rape him and that the same psychiatrist ate the ear of a patient; and that he has been raped by many women who have had numerous children to him.
24 On the application, I received a report from consultant forensic psychiatrist Associate Professor Andrew Carroll. While the report was written back in December 2017 for another matter, it provided helpful detail on Mr De Stefanis’s history of mental illness, his delusional beliefs, the hardship imprisonment is likely to present for him, and the risk of deterioration of his mental health in prison.
25 Mr Anderson explained that a forensic psychiatrist has examined Mr De Stefanis recently with a view to giving an opinion on various matters, including the potential for a defence of mental impairment to the charges, both new and old. However, that opinion is still pending.
26 As Mr Anderson pointed out, such an opinion is likely to be a major factor in determining whether various charges can be proved in the first place; whether a defence of mental impairment may be available; whether the charges should be maintained for policy reasons; and, if Mr De Stefanis were to be found guilty or to plead guilty, an appropriate sentence.
27 Mr Anderson also noted that it appeared to him that, subject to instructions and the psychiatric opinion given, both sets of charges would be capable of resolution in a way that ensured that Mr De Stefanis would not be imprisoned any further than he already has. As will be apparent from the discussion below, I agree.
28 Happily, Mr De Stefanis has been taking his depot injections voluntarily while in custody.
Criminal history
29 Mr De Stefanis has a criminal history, some of it relevant, some of it irrelevant. All of the following matters, except one, were heard in the Magistrates’ Court.
30 In 1998, he had a charge of intentionally damaging property dismissed under s 76 of the Sentencing Act 1991 (Vic).
31 In 2007, without conviction, he was placed on an adjourned undertaking for 12 months for shoplifting, assault, and theft.
32 In 2012, he was convicted and placed on a community correction order for threatening to inflict serious injury, public nuisance, assaulting police, and resisting police.
33 In 2014, without conviction, he was fined for possessing and using cannabis.
34 In 2019, he was convicted and sentenced to 624 days’ imprisonment for arson and reckless conduct endangering serious injury. Early one morning in July 2017, Mr De Stefanis set fire to toilet rolls in a supermarket, causing substantial damage and endangering customers and staff.^[4] He pleaded guilty, and the sentence represented the time he had already served in custody to that point.
Himmat Singh
35 I heard viva voce evidence from two witnesses on the application, commencing with Himmat Singh.
36 Mr Singh is a disability worker. He has had Mr De Stefanis as a client since June 2021. He has been funded to care for him through the NDIS. When Mr De Stefanis was in the community, Mr Singh would spend between three and six hours with him on an almost daily basis. He would take him to the park, go shopping, and drive him various places, including to his mother’s home and the homes of his friends.
37 Mr Singh confirmed with the motel at which Mr De Stefanis previously lived that they would have him back there, and that his NDIS funding would cover the cost.
38 Mr Singh’s experience is that Mr De Stefanis can be verbally abusive and threatening, but he has never been violent, and he believes he would not actually harm anyone. In his experience, Mr De Stefanis calms down when his mind is directed to other topics that interest him.
39 Mr Singh believes that Mr De Stefanis does not have access to weapons. He has had no experience of him picking up a carving knife and threatening anyone, although he acknowledged that one of the older charges (from November 2021) contains such an allegation.
40 In Mr Singh’s experience, usually, Mr De Stefanis receives his monthly depot injections from the service in Shepparton, either in his room at the hotel or at the hospital after being taken there by police.
41 Mr Singh is prepared to resume caring for Mr De Stefanis if he is released on bail.
Esther Oguntade
42 As I mentioned earlier, Ms Oguntade also gave viva voce evidence. As well as being a senior clinician with MHARS, she is a member of GVAMHAS.
43 She explained that the recommendation in the MHARS report is a recommendation from the prison at which Mr De Stefanis was being held (which was Ravenhall Corrections Centre).
44 In her liaison with the prison service, Ms Oguntade received a copy of an inpatient assessment order (“IAO”) completed by a mental health practitioner pursuant to s 29 of the Mental Health Act on 24 August — i.e., yesterday. In the IAO, the practitioner recorded that Mr De Stefanis:
presented as thought disordered [and] tangential with flight of ideas associated with poor insight [and] judgment, pressured speech, vulnerable, at risk of non‑compliance [and] at risk of serious deterioration in mental state if not provided treatment.
45 An IAO is an order made by a registered medical practitioner or mental health practitioner that enables a person who is subject to an assessment order to be compulsorily taken to, and detained in, a DMHS and examined there by an authorised psychiatrist to determine whether the treatment criteria apply to the person.^[5]
46 Ms Oguntade explained that, were he to be granted bail today, Mr De Stefanis would be released from Ravenhall and, pursuant to the IAO, transported by police or ambulance to either the DMHS at Shepparton or in Sunshine.
47 As I understood her evidence, given Mr De Stefanis’s history of being on a CTO, and subject to the assessment of the psychiatrist and the views of the Mental Health Tribunal, it is very likely that, ultimately, he would be released back into the community on a CTO or placed on an inpatient treatment order.^[6]
Exceptional circumstances
48 Mr Anderson submitted that, once all the surrounding considerations are taken into account, it can be seen that there are exceptional circumstances in this case. In his submission, the circumstances of the alleged offending and of Mr De Stefanis are clearly out of the ordinary.
49 Counsel put it that the critical factors to this conclusion are the following:
a) Mr De Stefanis’s mental health and vulnerability;
b) the delay between arrest and the ultimate hearing of the matter in the Magistrates’ Court, which could be well into next year;
c) the high risk that Mr De Stefanis will serve more time on remand than he will on sentence;
d) weaknesses in the prosecution case, particularly in relation to some of the more serious charges; and
e) the more onerous conditions in custody for a person in Mr De Stefanis’s state of mental health.
50 In contrast, Mr Elishapour submitted that, on the available material, the prosecution case is strong. Further, in his submission, it is speculative at this stage to say whether a defence of mental impairment may be available.
51 Mr Elishapour also emphasised the concerns of workers at the service to the effect that bail should not be granted.^[7] He added that, like Ms Cross, some of the other workers now also have interim PSIOs against Mr De Stefanis. However, as I understand it, those orders are framed in such a way that Mr De Stefanis may still contact the service for medical reasons or for the purpose of accessing treatment or support, whether through the mobile intensive support team or the like.
52 Mr Elishapour also submitted that the likely sentence to be imposed should Mr De Stefanis be found guilty would not be insignificant, particularly given the number of charges and seriousness of the alleged offending. He did not, however, submit a particular duration of sentence was likely beyond saying that a custodial term may well be open. He also accepted that the delay in reaching a final contested hearing could be well into next year.
53 In my view, whether or not Mr De Stefanis may have a defence of mental impairment or some other defence to one or more of the charges, enough is known about the circumstances to conclude that it is clear that he was mentally unwell at the time of the charged events. As a result, and given the hardship imprisonment presents in his particular circumstances, I think it is very unlikely that he would be imprisoned if found guilty or, if he were, that he would be required to spend any more time in custody than he has thus far, which is nearly three months. Accordingly, every day he spends in prison from this point onwards would amount to preventative detention, which would be wholly unsatisfactory. This, I am persuaded, is sufficient to amount to exceptional circumstances.
No unacceptable risk
54 On the question of unacceptable risk, Mr Elishapour submitted that Mr De Stefanis’s alleged offending conduct can be characterised as persistent, brazen and threatening. His behaviour is particularly concerning for the staff of GVAMHS, who again will be exposed to him in their work, should he be bailed.
55 While Mr Elishapour accepted that Mr De Stefanis’s only prior conviction for a threat‑based offence is relatively old, he submitted his criminal history is still such as to demonstrate a capacity for serious offending.
56 Mr Elishapour also referred to the concern expressed by the informant as to an alternative address to the motel. That address was to be with a friend of Mr De Stefanis who also has a serious mental illness and a prior criminal history for drugs and weapons offences. When asked about this address in cross‑examination, Mr Singh accepted that, while it might be good for Mr De Stefanis to have the company of another person, it would not be so good if he were exposed to drug use.
57 Mr Anderson accepted that there remains a risk that Mr De Stefanis may again engage conduct similar to that charged, especially given his history of engaging in abusive or threatening behaviour towards GVAMHS staff. However, he submitted that, on the evidence, there does not appear to be any realistic risk that he would follow through on threats of violence. Further, there is no evidence of him possessing weapons or making plans to effect physical violence.
58 Mr Anderson also submitted that, as undesirable as the identified risk may be, GVAMHS is uniquely positioned, in that clinical staff have explicit powers under the Mental Health Act to manage risk through treatment and coercive measures. Mental health services routinely work with Victoria Police to give effect to their powers. In addition, the evidence shows that it is apparent to receptionists at the service when Mr De Stefanis is calling and that there is potential for those calls to be screened.
59 Finally, Mr Anderson submitted that releasing Mr De Stefanis effectively into the care of mental health professionals on an IAO in the first instance, with the likelihood that he would then be released to live at his old motel room on a CTO, would sufficiently offset the risks asserted so that they were not unacceptable. I also understood him to accept that, on balance, because of the informant’s particular concerns, the motel address would be preferable to the room in the home of Mr De Stefanis’s friend.
60 In essence, I accept Mr Anderson’s submissions. Plainly, there is a risk that Mr De Stefanis would engage in abusive and threatening behaviour again, and thereby commit an offence. It is, however, less likely that he would endanger anyone’s safety or interfere with witnesses.
61 In any event, I am persuaded that whatever risks there are will be offset by his being released into the hands of the civil mental health system. He will be kept on an IAO so long as is considered necessary for his mental health and then, in all likelihood, will be returned to his motel in Shepparton on a CTO. While there, his treatment for his mental illness will continue to be managed by the GVAMHS. I am confident that, while it may be difficult for members of that service, they, and the service as an organisation, will be able to manage Mr De Stefanis in a way that ensures he is treated properly, and that also preserves their safety. Further, he will have the support of Mr Singh, which should reduce the risk of his behaving in a prohibited fashion.
62 Finally, given that any additional time in custody would be very likely to amount to preventative detention, and given also that there does not appear to be any realistic risk that he would act on his threatening behaviour, concerning though this state of affairs may well be for the GVAMHS staff, it is, in my view, unthinkable that he would be kept in custody in a prison any longer.
Conclusion and orders
63 It is for these reasons that, at the conclusion of the hearing on 25 August, I admitted Mr De Stefanis to bail on his own undertaking and on the following conditions:

^[1] At the application in this Court, I understood that only the new charges were the subject of the application, as the older charges were brought by way of summons. That said, some of the submissions of counsel appeared to assume that bail was necessary on both the older and the new matters. In any event, it became apparent after the hearing that it was thought that there may have been a remand warrant in existence on the older charges, which may have reflected a decision by a magistrate, under s 12B(2)(a) of the Bail Act 1977 (Vic), to remand Mr De Stefanis on those older charges too. In those circumstances, with the consent of the parties, it was made clear subsequent to the hearing that the order granting bail extended to those older charges too.

^[3] See Bail Act 1977 (Vic), ss 4D & 4E. There is no suggestion that he would fail to appear.

Supreme Court of Victoria

Re De Stefanis [2023] VSC 513 (29 August 2023)