Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Pleterski [2016] NSWCCA 14 Hearing dates: 5 February 2015 Date of orders: 05 February 2015 Decision date: 15 February 2016 Before: Hoeben CJ at CL at [1] Beech-Jones J at [1] Wilson J at [1] Decision: The Crown's detention application should be granted. The respondent's bail is revoked and he is to be returned to custody. Catchwords: BAIL – detention application made by Crown – additional information becoming available after successful bail application – Crown case significantly strengthened – strong Crown case – unacceptable risk to victim and witnesses established – unacceptable risk not able to be sufficiently mitigated by bail conditions – detention application granted and bail revoked. Legislation Cited: Bail Act 2013 – s 49, s 50 Crimes Act 1900 ss 33B(1), 47, 61, 195(1)(b) Crimes (Domestic and Personal Violence) Act 2007 - s 13(1) Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 – s 55(1) Category: Principal judgment Parties: Regina - Applicant Milan Darko Pleterski - Respondent Representation: Counsel: Mr E Balodis – Applicant Crown Respondent in Person Solicitors: Solicitor for Public Prosecutions – Applicant Crown Respondent in Person File Number(s): 2015/341915 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Bail Date of Decision: 25 January 2016 Before: Davies J File Number(s): 2015/341915 Judgment 1. THE COURT: Background to this application On 27 October 2015 the respondent was arrested and charged with the following offences: 1. Common assault: s 61 Crimes Act 1900. 2. Throw explosive substance with intent to do grievous bodily harm: s 47 Crimes Act. 3. Use offensive weapon with intent to intimidate: s 33B(1)(a) Crimes Act. 4. Stalk/intimidate with intent to cause fear: s 13(1) Crimes (Domestic and Personal Violence) Act 2007. 5. Damage property by fire: s 195(1)(b) Crimes Act. 1. On 25 January 2016 the respondent made a release application before Davies J pursuant to s 49 of the Bail Act 2013 (the Act). The respondent was not represented on that application. 2. Bail was granted, subject to the following conditions: 1. To be of good behaviour; 2. To report to Balmain Police Station between 8am and 6pm every Monday, Wednesday and Saturday; 3. To live at xxxx Henry Street, Leichhardt NSW; 4. Not to go within 1km of Forestville for any reason; 5. Not to associate or communicate by any means (except through his lawyer) with TS, TW and Z. 1. On 29 January 2016 the Crown made a detention application pursuant to s 50 of the Act. The papers relating to the application were served on the respondent on Wednesday, 3 February 2016. 2. The application was heard on 5 February 2016. After the completion of submissions the Court made orders granting the application and revoking the respondent's bail. The Court stated that reasons would be provided at a later date. This judgment constitutes those reasons. Factual background 1. The following narrative, which is disputed by the respondent in a number of respects, sets out the Crown case against him. There is independent corroboration of important parts of the Crown case. 2. The respondent had previously been in a relationship with Ms S (the complainant) for a period of about six months. The complainant lived in Starkey Street in Forestville. She resided there with her ex-partner, TW, and their child, Z, who is aged five. The premises comprised two bedrooms and is on the first floor of a block of units. The complainant is also the owner of a silver Toyota Yaris motor vehicle. 3. In her statement the complainant said that over the period of their relationship, the respondent was subject to "massive mood swings". He would go from being "really kind and loving" to abusive and aggressive very quickly. On one occasion early in the relationship, the respondent slapped the complainant. That was the only episode of physical violence until the events the subject of the charges against the respondent. 4. The complainant said that on Saturday, 24 October 2015 she decided that she would end the relationship and she did not go to the respondent's house as had been previously planned. This caused the respondent to make a number of abusive calls and send text messages to both the complainant and to TW. The complainant did not call the police at that time because she did not have any reason to be frightened of the respondent. 5. At approximately 7.20am on 27 October 2015 the respondent telephoned the complainant and in the course of that conversation was told by her that TW was not home but had gone to work. At approximately 8am the respondent knocked on the complainant's door. When the complainant opened the door to him, he pushed his way in causing her to back away. The respondent then raised a spray bottle which he was holding to head height. The complainant described it as a "regular cleaning style bottle". The bottle was full of a clear liquid. The respondent began to spray the complainant with the contents of the bottle, aiming for her eyes and face. The complainant noticed a strong smell, which she thought could be either petrol or turpentine. 6. The respondent continued spraying the liquid over the complainant's face. Every time he sprayed her, she took a step backwards and he kept moving forward pushing her down the hallway towards the kitchen with his left hand. While this was occurring, the complainant noticed that the liquid was causing a burning sensation to her face. 7. The complainant said that while he was pushing her down the hall, the respondent was saying words to the effect "Bitch, you want to fuck with gangsters. This is what happens when you fuck with gangsters. This is it bitch, I don't care if I go back to gaol." 8. Eventually the complainant stopped at the entrance to the kitchen and the respondent continued to spray the liquid on her. There was a large amount of liquid on her face at that point and it was dripping from her face onto her shirt. The respondent said "You won't use those eyes again. Say goodbye to that face". 9. The respondent moved the spray bottle to his left hand and brought out a black, rectangular shaped lighter. He flicked the lid of the lighter off with one hand and ignited the flame. He ran the flame along the complainant's clothes at about stomach height, which caused her to jump backwards. The respondent continued to move towards the complainant, raising the flame towards her face. It got within centimetres of her face when she pushed his arm away. The respondent brought the lighter and flame back towards the complainant's face about four or five times and each time she pushed his arm away because she was afraid that the flame would ignite the fluid on her face. 10. Eventually the complainant was able to push her way past the respondent towards the entrance to the unit. She heard the respondent say "Where's Z? Where's Z? Hey Z, hey Z come here." The respondent walked into Z's room while still holding the spray bottle. He looked around for Z but did not see him and then left his room. (Z was in fact hiding under the bed.) The respondent said "You're nothing but a whore. This is what whores get. This is your last day. I don't care about going back to gaol." 11. The complainant ran out the front door of the unit and unsuccessfully sought help from neighbours. She was followed by the respondent. The complainant succeeded in avoiding the respondent and was able to return to her unit after which she closed the door. The complainant then called the Manly Police and described what had happened. Approximately five minutes later, she heard a knock at her front door. She heard a male voice which said "It's the police. It's the police. It's the police." The complainant telephoned the Manly Police Station and was able to confirm that the police had not yet arrived at her unit. The complainant did not open the door and waited inside until police arrived. 12. By the time police arrived, the complainant's eyes and face were burning. She took off the clothes which she was wearing at the time and gave them to police before having a shower to wash the substance from her face. She then participated in a video interview with police. 13. At the conclusion of her statement, the complainant said "I am scared that Milan will come and try to hurt me again in the future. He's bragged to me in the past about his criminal record and that he associates with outlaw motorcycle groups and gangsters. I am very scared of him". 14. Subsequently the complainant's car (which was in a nearby carpark) was found to have sustained a large burned area on the offside front bonnet. Photographs of this damage were before the Court and it is clear from those photographs that this part of the motor vehicle had been burned by some substance. 15. The police were able to retrieve the texts apparently sent by the respondent to TW in the days before 27 October 2015. Included in those texts were the following: 26.10.2015 – 10:37:28 – "Can u catch petrol" 26.10.2015 – 10:49:53 – "Oh scare of so scared petrol what a great invention" 1. Although the respondent initially denied going to the complainant's unit on 27 October, he subsequently admitted that he had done so in the proceedings before Davies J. Police also obtained CCTV footage which showed the respondent carrying a backpack and travelling in the direction of the complainant's unit at a time fully consistent with the events described by the complainant. 2. Scientific tests were carried out in relation to some of the liquid residue located on the kitchen floor. Tests were also carried out on the pink jumper and grey track pants worn by the complainant at the time. The results of those tests were: "A medium petroleum distillate was detected in the contents of these items. Medium petroleum distillates can be found in a variety of products including mineral spirits, low odour mineral turpentine; low odour kerosene, some paint thinners, dry cleaning solvents and aerosol lubricants." 1. Police obtained statements from a number of eyewitnesses which confirmed not only that the respondent was outside the complainant's unit as alleged by her, but that he was holding a plastic bottle. 2. On 29 October 2015 the respondent participated in an electronically recorded interview with police. Without going into detail, there are a number of inconsistencies between what the respondent said in that interview and matters which have been independently established by evidence other than that provided by the complainant. Most particularly, the respondent denied that he had been at the unit at 8am on the morning of the 27th October (Q.332 – 333). 3. The respondent has a long criminal record dating back to 1975 although there has been minimal offending since 2002. The respondent has not been in prison since 2002 and his offending since that time has been sporadic and minor. The only offences of violence on his criminal record appear very early in that record. The majority of offending since that early period related to drug and property offending. 4. The respondent owns the house in which he resides. At the time of the events with which he has been charged, the respondent was unemployed. The respondent was in custody from the date of his arrest on 29 October 2015 until he was released on bail on 25 January 2016. There was material before the Court which indicated that on 24 December 2015 while the respondent was in custody, an order was made pursuant to s 55(1) of the Mental Health (Forensic Provisions) Act 1990 directing that he be transferred to a mental health facility as he appeared to be a mentally ill person. He was transferred to that mental health facility in prison on 20 January 2016. On 25 January 2016 he was reviewed by two doctors at the mental health facility when it was determined that he was a mentally ill person and as such, a s 56(2) order was issued directing that he was to remain in a mental health facility. The respondent was in that mental health facility (unknown to Davies J) when he successfully applied for bail. 5. As a result of the respondent being granted bail on 25 January 2016, the respondent was scheduled to the Prince of Wales Hospital under the Mental Health Act 2007. The respondent was assessed at the Prince of Wales Hospital on 2 February 2016 and was discharged. 6. Most of the foregoing material was not before Davies J when he granted bail to the respondent. At that time the Crown's case depended on the evidence of the complainant being accepted in preference to that of the respondent. As can be seen, the factual circumstances had changed considerably by the date of the detention application and the Crown case was much stronger. Submissions 1. The Crown accepted that the respondent did not have to show cause under s 16A of the Act. 2. The Crown accepted that for this application to succeed, it had to establish that the continued liberty of the respondent amounted to an "unacceptable risk" which could not be sufficiently mitigated by the imposition of bail conditions (s 20(1) of the Act). 3. The Crown relied upon the following unacceptable risks which it submitted were made out by considering the ongoing risk to the complainant not only because of her previous relationship with the respondent but as now being the person who had made a complaint against him of serious criminal offences: 1. Risk of commission of a serious offence (s 17(2)(b) of the Act). 2. Risk of danger to the complainant, individuals and community (s 17(2)(c) of the Act). 3. Risk of interference with witnesses or evidence (s 17(2)(d)). 1. The Crown submitted that there was a very strong case against the respondent which did not depend only upon the evidence of the complainant and her former partner. It was corroborated independently by eyewitnesses and objective material such as the results of the forensic tests of the liquid substance sprayed onto the complainant. The Crown submitted that should the respondent be convicted of these offences he was likely to serve a significant period in prison. This provided an incentive for him to take steps to weaken the Crown case or otherwise discourage the complainant from pursuing the matter. 2. The Crown submitted that at the heart of the offences with which the respondent had been charged was the concept of retaliation against the complainant because she sought to break off their relationship. The Crown submitted that this kind of motivation gave rise to a continuing risk that the respondent might again take retaliatory action against the complainant, not only because of the failed relationship but because she was now the instigator of the serious charges which had been brought against him. 3. The Crown submitted that the risk posed by the respondent to the complainant and her family was serious and could not be said to have been sufficiently mitigated by the bail conditions imposed by the Court. The Crown submitted that the respondent's behaviour was both premeditated and unusual. Had the respondent been successful in his assault upon the complainant, she would have suffered serious injury and likely permanent disfigurement of her face. The Crown submitted a further disturbing matter was the respondent's attempt to find the child when his attempts to set fire to the complainant had been unsuccessful. 4. The Crown submitted that even if the conditions already imposed by the Court were made more stringent, such as imposing a curfew and more regular reporting, the compliance with those conditions would still largely depend upon the motivation of the respondent which was highly problematic. 5. In oral submissions, the respondent denied that he had committed the offences and that he had carried out the actions attributed to him by the complainant and TW. He said that the complainant had not communicated any intention of breaking up the relationship to him and that he had been invited to go to her unit on 27 October. 6. The respondent submitted that he needed to be at liberty so that he could arrange for tests to be carried out in relation to his phone and other phones so as to make it clear that he was the person being threatened by texts, not the complainant and TW. He submitted that as a result of being in custody since 29 October 2015 and restrained at the Prince of Wales Hospital, he had not been able to pay bills relating to his residence and ran the risk of losing his home if he were returned to custody. No further information was provided in relation to those matters. Consideration 1. As was submitted by the Crown these are very serious offences. The Crown case is strong and the respondent if convicted will undoubtedly receive a significant prison sentence. We accept that this provides motivation for him interfering with the complainant and other witnesses. 2. There is also, as the Crown submitted, a somewhat unusual element in the offences alleged against the respondent. The level of retaliation appears to be out of all proportion to the complainant's actions. All that the complainant did was to seek to end the relationship which had only existed for a relatively short period. There is a level of irrationality in the offences charged which might be explained by the mental health element which is referred to in the factual material before the Court but which was not otherwise explored. 3. As the Act makes clear, a court considering a bail application has to consider the risks to which witnesses and complainants might be exposed should the applicant for bail be granted liberty. In this case, given the seriousness of the offending and the otherwise unexplained mental health elements which could lead to the respondent behaving in an irrational manner, the Court is not satisfied that the unacceptable risks identified by the Crown can be appropriately ameliorated by bail conditions. Conclusion 1. It was for the above reasons that the Court made orders on 5 February 2016. ********* Amendments 17 August 2018 - publication restriction removed - judgment published 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: 17 August 2018