Re Application for Bail by Leigh-Jones [2019] VSC 845 (19 December 2019)

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IN THE MATTER of the Bail Act 1977

And

IN THE MATTER of an Application for Bail by John Peter LEIGH-JONES

JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2019
DATE OF ORDERS:	17 December 2019
DATE OF REASONS:	19 December 2019
CASE MAY BE CITED AS:	Re Application for Bail by Leigh-Jones
MEDIUM NEUTRAL CITATION:	[2019] VSC 845

CRIMINAL LAW – Application for bail – Charges of reckless conduct endangering persons and possessing explosive device – Prima facie entitlement to bail – Whether applicant ‘unacceptable risk’ – Extensive criminal history – Applicant suffering from paranoid schizophrenia – Applicant medicated in custody – Previous contraventions of conditions of bail – No bail conditions able to ensure adherence to medication plan – Bail refused – Bail Act 1977 s 4E applied.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms H Anderson	David Barrese & Associates

For the Respondent	Mr N Moran	Victoria Police

1 On 17 December 2019, I heard and dismissed an application by John Peter Leigh‑Jones for bail. I indicated then that I would publish my reasons in due course. These are those reasons.

2 The applicant was arrested and charged on 26 August 2019 with reckless conduct endangering persons and with possession of an explosive device. These offences were said to have been committed on 23 August 2019.

3 At the time of the alleged offending, the applicant was on summons for contravention of a Community Correction Order. The applicant remains on summons in relation to this matter.

4 With regards to the current application, the applicant has been on remand since his arrest in August. He applied for bail in the Moorabbin Magistrates’ Court on 20 November 2019. Bail was refused on the basis that he presented as an unacceptable risk. The matter will proceed to a contest mention, which is scheduled for 13 February 2020.

5 The prosecution alleges that between 28 June 2019 and 26 August 2019, the applicant had formed the belief that there was a conspiracy to have him murdered. During this period, he reported this theory to police. The background was as follows. In 2007, he had provided information to police that led to a successful arrest and conviction for drug trafficking offences. As a result, he believed that a ‘hit’ had been put out on him, and that an outlaw motorcycle gang had made threats to his life. He also believed that an Angelo Gargasoulas, (who was apparently a tenant residing with the applicant’s partner, Yvonne Sindatoc, in Glen Huntly) was involved in the conspiracy.

6 On 22 August 2019, the applicant telephoned 000 at 1:54 pm from a post office in Glen Huntly. He told the operator that his apartment had been broken into and that he had been threatened. He said that this incident took place over ‘several hours’, and claimed that he had then been followed by four people in a car. Following the call, police carried out investigations and determined that the applicant was suffering from some form of mental health episode. They referred him to the Alfred Hospital Psychiatric Triage, but were unable, however, to apprehend him.

7 Later that evening, Gargasoulas returned to the Glen Huntly address to find two glass jars, wrapped in clear plastic and coloured tape, in his bedroom. The jars contained a flammable substance with a fabric wick stemming from the liquid to the outside of each jar. Essentially, they were Molotov cocktails. The applicant then arrived at the property with Sindatoc. Gargasoulas asked him about the jars and he admitted to having created them. He repeated to Gargasoulas a similar narrative to that which he had given to police earlier that day. He said that he had prepared the jars for self-defence. Gargasoulas then took the jars from the applicant and concealed them from him. The applicant subsequently left the property.

8 At about 8:00 am the following day, the applicant attended Melbourne West Police Station. He spoke to an officer and expressed concern that his phone had been ‘bugged’. He also claimed that unknown persons has been in his apartment. He told the officer that he believed Gargasoulas had arranged for a ‘hit’ to be placed on him. He was offered medical assistance, which he refused.

9 At about 10:45 am, the applicant returned to the Glen Huntly address and confronted Sindatoc about Gargasoulas having kept him under surveillance, and having arranged to have him killed. He demanded that she accompany him to the Melbourne CBD, but she refused. Shortly afterwards, Gargasoulas contacted the Alfred Critical Assessment and Treatment Team, and then rang 000 to report the incident to Police. When they arrived, the applicant had already left. However, they found and seized the two jars.

10 The following day, Police searched the applicant’s apartment in the Melbourne CBD. They located paint thinner and methylated spirits, these being broadly of a kind consistent with that which had been used to manufacture the Molotov cocktails. During this time, numerous attempts to locate and apprehend the applicant were unsuccessful. On 26 August 2019, he surrendered himself to police.

11 Upon his arrest, the applicant was assessed by Dr Janine Rowse from the Victorian Institute of Forensic Medicine as to his fitness to be interviewed. Dr Rowse found that he exhibited features of psychosis, that he had no insight into his mental condition, and that he suffered from delusions, and was a suicide risk. She determined that he was not fit to be interviewed. He was then charged and remanded into custody.

12 The applicant is currently aged 44. He has been diagnosed as suffering from paranoid schizophrenia. When arrested, he advised police that he had not been taking his prescribed medication for that condition for several months prior to the offending.

13 The applicant has an extensive criminal history. He has prior convictions for intentionally causing injury, contravening a family violence intervention order, committing indictable offences whilst on bail, contravening conditions of bail, failing to answer bail, theft, failure to comply with a community based order, making threats to kill, assault, and possessing a controlled weapon.

14 It is agreed between the parties, and it is clearly correct that the applicant is prima facie entitled to bail. The live issue before me was whether he presented as an ‘unacceptable risk’.

15 Section 4 of the Bail Act 1977 makes it clear that the applicant is entitled to bail unless, for some reason, the Court is required to refuse bail. Section 4E(1) provides that the Court shall refuse bail if it is satisfied:

16 Before me, counsel for the applicant acknowledged that although the applicant did present ‘some risk’ of committing an offence whilst on bail or endangering the safety or welfare of members of the public, bail conditions could be imposed that would assist in reducing that risk to an ‘acceptable level’. She highlighted that the applicant was clearly unwell at the time of the offending. However, since being in custody (which, at the time of hearing this application, had been for a period of 113 days) the applicant had voluntarily resumed taking his medication, as prescribed. A psychologist, Dr Aaron Cunningham, assessed the applicant on 13 December 2019. His report was provided to the Court. Dr Cunningham concluded that the applicant did not present as psychotic or delusional at the time of assessment, and stated that his mental health had stabilised.

17 The primary submission put forward on behalf of the applicant was that the imposition of bail conditions to ensure that he continued his prescribed course of medication would reduce any risk that he might otherwise pose if he were granted bail. In support of that submission, counsel noted that the Court Integrated Services Program would be available to the applicant if he were to be released from custody. Counsel also informed the Court that she had made inquiries with Forensicare as to an informal discharge plan for the applicant. She was informed that such a plan would have to await a referral to the applicant’s GP, and to his local mental health service.

18 When asked whether there could be any assurance that the applicant would take his prescribed medication if granted bail, counsel noted that he had indicated a desire to adhere to his current regime, and had been taking the medication entirely voluntarily while in custody. She also submitted that a condition of regularly reporting to police might be of some benefit.

19 During the course of the hearing, the applicant informed his counsel that, if bailed, Sindatoc would reside with him at his apartment, and that she would ensure that he took his prescribed medication. She would also provide a level of monitoring as to his compliance and behaviour. It was submitted that, as she has previously done, Sindatoc would be able and willing to inform police if the applicant’s behaviour deteriorated.

20 Sindatoc was called to give evidence. She seemed unable to articulate clearly the extent of the applicant’s mental health issues. She had little real understanding of his current schedule of medication. She was unable to identify with any specificity the actual drugs he is currently taking, and how regularly they are to be administered. When asked what she would do to ensure that the applicant took his medication as required, she responded that she would ‘draw up a plan’ to ensure that the applicant ‘follows that daily’. She also said that she was willing to report him to police if his behaviour or mental health deteriorated. However, she conceded that she could not monitor him ‘24/7’.

21 Counsel for the respondent submitted that there were no conditions which would guarantee the applicant’s compliance in taking medication. It was also submitted that a self‑directed visit to the GP upon his release would not adequately address the present level of risk that the applicant poses. Additionally, it was submitted that the applicant was not considered a flight risk, and accordingly reporting to police on a regular basis would be of little use. Indeed, it might simply set the applicant up to fail.

22 I accepted the respondent’s submissions. The applicant has a significant criminal history that, at least in the present case, has arisen, in large part, out of his failure to adhere to his prescribed schedule of medication. On the evidence before me, I was persuaded that he posed an unacceptable risk of committing another offence, or of endangering the safety and welfare of members of the public. I was satisfied that there were no conditions of bail that would ensure that he adhered to his current course of medication.

Supreme Court of Victoria

Re Application for Bail by Leigh-Jones [2019] VSC 845 (19 December 2019)