Bail decision deserves credit
APPOINTED by Rob Hulls? Tick. Headlines about previous cases which include the phrase “avoids jail”? Tick. Seriously, if he was going on what Google reveals about her, Richard Pusey could have been forgiven for daring to dream that, in Johanna Metcalf, he’d got lucky with the magistrate drawn to hear his bail application.
Until now, the most widely reported sentence Her Honour had handed down in her 11-odd years on the bench had involved her decision not to jail a road rager who punched a trainee paramedic after chasing her for 10km.
But Google searches are never perfectly accurate and the Porsche-driving property developer found out Metcalf’s wasn’t accurate.
He was flat out of luck. Metcalf sent him back to the clink to await trial even as she acknowledged that, in her opinion, he “could well spend a longer period on remand than any jail sentence he might he might receive”.
Her reasoning was interesting and shows how things have changed for the better in Victoria in recent times.
According to her summary, Pusey is facing 12 charges, including reckless conduct (driving 149km/h in a 100km/ h zone); failing to render assistance at the scene of a collision knowing a person had been killed; destruction of evicar dence; committing an indictable offence on bail and driving a motor vehicle with more than the prescribed concentration of drugs in his system.
The charges flow from the tragic events of last month when four police were killed on the Eastern Freeway when a truck struck them after they had pulled Pusey over. Pusey is not charged with offences in relation to their deaths. Nor is he charged with any offences for filming the scene of the accident which, in her opinion, while “highly intrusive and morally repugnant”, was “not illegal”.
In Victoria a person accused of an offence and remanded is entitled to be granted bail unless the bail decision maker is required to refuse bail by the Bail Act. In Pusey’s case his application had to pass a thing called the “show compelling reason” test because he was already on bail for an “indictable offence (being an alleged theft of keys in October 2018)”.
Pusey’s barrister Vincent Peters argued there were a number of “compelling reasons” why his man should get bail, starting with the fact any sentence would likely be less than the time he would spend on remand, before moving on to “pre-existing mental health issues”.
He had quite a lot to work with here, it has to be said, as in 2016 a shrink assessed his client as suffering “likely ADHD with comorbid anti-social/narcissistic PD and polysubstance abuse”. To deal with this dreadful affliction Pusey has been given “repeat prescriptions of Ritalin”.
Still, as Metcalf said “on a positive note” the report also stated “when adherent to (his antipsychotic medication) and avoiding substance misuse, Richard presents as calmer and more rational”. Even so, the authors concluded he “remains at high risk of further acting out behaviours, self-medicating with alcohol and recreational substances, and variable adherence with private mental health practitioner follow-up.”
In the end it was this that sunk Pusey’s bid for freedom. For while Metcalf found Pusey had made compelling cases for bail, namely that he may not get to trial until “well into 2022” and he might not receive appropriate mental health treatment in custody she still refused his application. Why? Because she’s required to consider whether there were “unacceptable risks” with a grant of bail.
There was, she said, “additional material suggestive of risk-taking attitudes and driving behaviour before the court”, namely messages found on his phone about speeding and fitting “blinders” onto his car to avoid police detection, as well as dashcam footage showing his car travelling at high speed along the Eastern Freeway and video recovered from his phone allegedly showing a person (believed to be him) driving a Porsche at speeds up to 247km/h on the Monash.
That, combined with “the prospect of ongoing drug and alcohol misuse and the risks that poses, including the potential undermining of the effectiveness of treatment to improve and stabilise Mr Pusey’s mental health”, as she noted, “his history reflects concerning behaviour and volatility when these risks are not being addressed”.
For these reason she declared he posed an “unacceptable risk” of committing more offences while on bail and sent him back to remand. And good on her.
IN VICTORIA A PERSON ACCUSED OF AN OFFENCE AND REMANDED IS ENTITLED TO BE GRANTED BAIL UNLESS THE BAIL DECISION MAKER IS REQUIRED TO REFUSE BAIL BY THE BAIL ACT