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Supreme Court of Victoria |
Last Updated: 25 November 2020
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Application for bail – Charges of committing Schedule 2 offence whilst on a Community Corrections Order for a Schedule 2 offence – Allegations of family violence – Offending with a knife - availability of place at residential rehabilitation facility – Anticipated delay due to COVID-19 – exceptional circumstances not established – unacceptable risk established - Bail Refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr T Antos
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Bowler, Man & Co
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For the Respondent
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Ms B Cowley
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Victoria Police
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Introduction
1 JL (‘the applicant’) has been on remand since 22 June 2020 for charges relating to family violence against his former intimate partner, ‘SS’. The applicant is charged by Detective Senior Constable Johnson (‘the Informant’) with the following:
(a) Charge 1: Reckless conduct endangering serious injury on 8 March 2020 (contrary to s 23 of the Crimes Act 1958 (Vic))(‘Crimes Act’);(b) Charge 2: Intentionally cause injury on 8 March 2020 (contrary to s 18 of the Crimes Act);
(c) Charge 3: Recklessly Cause Injury on 8 March 2020 (contrary to s 18 of the Crimes Act);
(d) Charge 4: Assault with a weapon on 8 March 2020 (contrary to s 23 of the Summary Offences Act 1966);
(e) Charge 5: Using controlled weapon without excuse on 8 March 2020 (contrary to s 6(1) of the Control of Weapons Act 1990);
(f) Charge 6: Making threats to kill on 8 March 2020 (contrary to s 20 of the Crimes Act);
(g) Charge 7: Contravening a family violence intervention order (‘FVIO’) by being within 5 metres of SS on 7 March 2020 (being the complainant in this case)(contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic)(‘FVP Act’);
(h) Charge 8: Contravening a family violence intervention order by SS on 8 March 2020 (being the complainant in this case)(contrary to s 123(2) of the FVP Act);
(i) Charge 9: Contravening a family violence intervention Order assaulting SS with a knife and threatening to kill her, intending to cause harm or fear by on 8 March 2020 (contrary to s 123A(2) of the FVP Act); and
(j) Charge 10: Possessing a drug of dependence on 22 June 2020 (alleged to be heroin)(contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)).
2 Before making this application, the applicant made two unsuccessful applications for bail in the Ringwood Magistrates’ Court.[1] He was legally represented on both occasions. His first application[2] was refused on the basis he posed an unacceptable risk of committing offences whilst on bail. His second application[3] was refused on the basis that he had failed to show exceptional circumstances existed to justify bail being granted.[4]
3 On 23 November 2020, the applicant’s charges were dealt with at a contest mention at the Ringwood Magistrates’ Court and adjourned for a part heard contest mention to 14 December 2020.
4 The applicant intends to contest the charges against him. It has been suggested by the applicant that the indication from Ringwood Magistrates’ Court is that any contest would not be likely to be listed before April 2021 even if it was conducted via Webex.
Circumstances of the applicant’s arrest and current charges
Background
5 At the time of the alleged offending the applicant and SS had been in an intimate relationship one year.
6 Prior to the incident that is the subject of the current charges, there were two family violence incidents between the applicant and SS that resulted in charges against the applicant:[5]
(a) On 7 January 2019, SS and the applicant had an altercation at the applicant’s home. During the altercation, the applicant yelled at the complainant and accused her of cheating on him. He then obtained a hunting knife and held it to SS’s throat while yelling at her. He then put down the knife and threw items at SS’s head. SS the left the address, and the applicant followed, grabbing her handbag and returning to his apartment. The applicant’s neighbour phoned police, and the applicant was charged with unlawful assault.(b) On 8 January 2019, police issued a Family Violence Safety Notice (‘FVSN’) against the applicant. On 11 January 2019, an interim FVIO was later issued with full conditions (no contact), protecting SS.[6]
(c) On 24 March 2019, there was another altercation between the applicant and SS at the applicant’s home. During that altercation, the applicant sat on the couch next to SS, while holding a knife and yelling at her. He then held a knife to SS’s throat and said “I’m going to kill you. You are going to end tonight”. SS walked away from the applicant into the bedroom. The applicant followed SS and smashed her head into a bedroom wall three times. The applicant was charged with making threats to kill, contravening a FVIO and assault with a weapon.
7 On 15 April 2019, a final FVIO was made in the Ringwood Magistrates’ Court against the applicant, for SS’s protection. That Order had full, no contact conditions, and was due to expire on 15 April 2020.
8 On 29 April 2019, the above charges[7] were heard and determined at the Ringwood Magistrates’ Court. The applicant was sentenced to 9 months imprisonment, and a 12 month Community Corrections Order (‘CCO’).
Current alleged offending
9 The factual summary alleged by police is as follows:
(a) On 7 March 2020, the applicant contacted SS and told her he had taken some pills. She felt sorry for the applicant and agreed to meet him at a park in Templestowe. They met at approximately 11:00pm that evening and returned to the applicant’s home. A witness, L, was present at the home when the pair arrived, but left shortly after.(b) In the early hours of the morning, the applicant became angry with SS and accused her of cheating on him. He left the bedroom, obtained a 30cm knife from the kitchen and returned to the bedroom, telling SS “This time you are gone, you’re gone. I’ve turned now, I’ve turned”. The applicant then started swinging the knife at SS. He tried to stab her in the eye and missed, then slashing her wrist causing a laceration. The applicant continued to swing the knife, with SS begging him to stop. Eventually, he placed the knife down and assisted SS in the bathroom. SS was bleeding and crying but the applicant would not allow her to leave the apartment to seek medical assistance. The pair have then gone to sleep in the applicant’s bed.
(c) They woke up around 9:30am that morning, and the applicant agreed to take SS to get medical treatment for the injury. Whist in the garage to the applicant’s home, on the way to the applicant’s car, SS became frightened of the applicant’s housemate’s dog, and a further altercation erupted, after which SS ran away from the applicant, and called a friend (BT). BT collected SS and took her to a medical centre where she received treatment for a knife wound which was greater than 7cm and required stitches.
(d) Police attended the applicant’s home later that day but he was not there. L was home and allowed police inside. Police observed a large knife on the sink. Police were able to speak with the applicant that day using L’s phone. They told the applicant they needed to interview him regarding a family violence assault against SS. The applicant allegedly told police he was working that day and would phone them back to arrange a time to be interviewed.
(e) On 9 March 2020, a search warrant was executed at the applicant’s home. Several items of clothing, the bed sheet, a knife and a knife block were seized, and several DNA swabs were taken.
(f) The police contacted the applicant several times by phone to arrange an interview, but he failed to keep appointments and could not be located.
(g) Between 16 March 2020 and 16 April 2020, the applicant sent 271 text messages to SS, breaching the FVIO. The Court understands a further charge is to be served in relation to these text messages.[8]
10 On 14 April 2020, police applied to the Ringwood Magistrates’ Court to extend the FVIO in place for SS’s protection against the applicant. An interim order was made, and served on the applicant on 23 June 2020. On 13 November 2020, a final FVIO was made against the applicant for SS’s protection, with the same full, no-contact conditions. That Order expires on 13 November 2022. The applicant was not present at the hearing, presumably because he was (and continues to be) in custody.
Incident in Western Australia
11 On or around 25 May 2020, the applicant flew to Western Australia (‘WA’) to stay with his son. He returned to Victoria sometime in mid-June. The applicant is wanted for questioning in WA in relation to a serious incident that allegedly involved the applicant whilst he was in WA. He is alleged to have threatened his son, by holding a knife to his son’s throat, and assaulting his son’s friend with a knife, attempting to stab him in the abdomen. The Court understands that the victim in that matter suffered defensive injuries.[9] The Informant in the current matter gave evidence that depending on the outcome of the current matter, she understands that WA Police may seek to extradite the applicant in relation to the incidents that occurred earlier this year in WA.
12 On or around 11 June 2020, the applicant returned to Victoria. Police contacted him by phone on 22 June 2020 and he agreed to hand himself in to police that day. The applicant met police at the agreed location and he was arrested. At the time, police found a small amount of drugs, thought to be heroin, in his wallet.
Police interview
13 When interviewed by police, the applicant denied threatening SS or breaching the conditions of the FVIO, stating he believed it was no longer active. He said he was aware what the conditions of the FVIO were. He admitted he was under the influence of amphetamines at the time of the alleged incident. He admitted SS was at his address on the relevant evening, that there was an incident where SS was lying on the floor ‘carrying on.’ He could not recall how the incident started. He admitted to standing in the bedroom with a knife in his hand, and that SS was throwing her arms around, causing a laceration on her forearm. He says that he bandaged up her arm, and told her to get medical attention. He admitted that SS’s friend collected her from his residence later that morning and took her to the doctor. He denied knowing about the substance found in his wallet.
CCO
14 The CCO put in place on 29 April 2019 (as mentioned above) was in force at the time of the current offending. Community Corrections have since commenced contravention proceedings.
15 Community Corrections allege the applicant has failed to show any progress on his CCO. A report dated 30 March 2020 from Nicole Gittus, Advanced Case Manager at Box Hill Community Correctional Services,[10] outlines the following breaches:
(a) The applicant failed to report as directed on three occasions between February and March 2020;(b) He left Victoria without permission on a total of two occasions in January and March 2020 - once to work as an interstate truck driver and the other to attend Albury Magistrates' Court;
(c) he failed to undergo treatment and rehabilitation on 18 March 2020; and
(d) he failed to undergo drug testing as directed on three occasions in February 2020, claiming he forgot or something else came up.
16 Due to his poor compliance, the report recommends that the order be cancelled, and he be resentenced on the original offences, which involved family violence offending against SS, as detailed above.
Criminal, FVIO and Bail History
17 The applicant has an extensive criminal history in Victoria,[11] dating back to 1989. It includes family violence offending, bail offences and non-compliance with court orders.
Family violence offending and FVIO history
18 The applicant has been subject to a total of 11 FVIOs.
19 On 21 March 2013, the applicant was sentenced to an aggregate sentence of four months imprisonment for intentionally causing injury to a former intimate partner, CF, on 7 January 2012. He was also fined in respect of two charges of failing to answer bail, criminal damage, and speeding offences.
20 On 10 January 2014, the applicant was sentenced to 3 months imprisonment for further family violence offending against CF on 17 July 2013. He was convicted of threatening to inflict serious injury and persistent contravention of a FVIO.[12]
21 As mentioned above, on 29 April 2019, the applicant was sentenced to 9 months imprisonment and a 12 month CCO for family violence offences, committed against SS on 7 January 2019 and 24 March 2019.[13] On that occasion the applicant was also convicted for having committed an indictable offence whilst on bail.
Other history
22 Relevantly, the applicant also has prior convictions or findings of guilt for:
(a) 11 July 2012 (Vic): failing to answer bail;(b) 22 June 2012 (WA): breaching a bail undertaking;
(c) 7 April 2008 (Vic): using a carriage service to menace, relating to a family violence incident against another ex-partner; and
23 There are possible further charges to be laid in this matter, as well as charges relating to the incidents in WA and Queensland.
The applicant’s subjective circumstances
24 The applicant is 51 years of age. He has four adult children and four grandchildren with whom he has limited contact.
25 The applicant grew up in Melbourne. He attended Balwyn Primary School, and then Balwyn High School up to year 7. He then commenced a Mechanics Apprenticeship at the Swinburne Technology Trade School. He did not complete his apprenticeship. He has worked as a truck/large vehicle driver in the past.
26 The applicant is in contact with an older brother, and his parents. Both his parents live in Queensland, and have undisclosed health concerns. Prior to being remanded, the applicant was living in an apartment in Doncaster.
27 The applicant started smoking cannabis between 12 and 14 years of age, which gradually led to heroin by the age of 18. He has been ‘plagued’ by heroin and drug abuse for most of his adult life.[14]
Statutory tests applicable to the applicant’s bail application
28 When interpreting the Act, the Court must have regard to the guiding principles set out at s 1B(1) of the Bail Act 1977 (Vic)(‘the Act’).
29 In this case, the parties agree that the applicant must establish that exceptional circumstances exist in order to justify the grant of bail[15] due to being charged with a Schedule 2 offence,[16] committed whilst he was subject to a CCO for Schedule 2 offences.[17]
30 Therefore, the Court embarks on a two-step process in determining the application. First, the Court must refuse bail unless satisfied by the applicant that exceptional circumstances justify the grant of bail.[18] Second, even if satisfied by the applicant under Step 1, the Court must refuse bail if the respondent satisfies the Court under Step 2 that the applicant poses an unacceptable risk pursuant to ss 4D and 4E of the Act.
Step 1 – the ‘exceptional circumstances’ test
31 In considering whether exceptional circumstances exist, the Court must take into account ‘the surrounding circumstances’.[19] This includes all the circumstances that are relevant to the matter, including, but not limited to, those set out in s 3AAA(1) of the Act.
32 In the bail application of Re Brown,[20] Lasry J summarised principles relevant to interpreting ‘exceptional circumstances’ in the context of applications for bail:
The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[21]
Unacceptable risk test
33 Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing an unacceptable risk that if released on bail, any or all of the matters captured by s 4E(1) would arise. In the present case the respondent says the applicant poses an unacceptable risk of:
(a) Endangering the safety and welfare of any person;(b) Committing an offence while on bail;
(c) Interfering with a witness or otherwise obstructing the course of justice in any matter; and
(d) Failing to surrender into custody in accordance with the conditions of bail.
34 Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’ in determining whether there is any relevant risk and whether it is unacceptable, and is directed to consider whether there are any conditions of bail that could mitigate risk so that it is not an unacceptable risk.
Family violence risks
35 In accordance with s 5AAA(1), because the applicant is charged with a family violence offence,[22] the Court must make enquiries of the prosecutor as to whether there is a family violence intervention order, safety notice, and or a recognised DVO in force against the applicant. As outlined above, I am informed by the respondent that there is a current FVIO in place for SS’s protection.
36 Pursuant to s 5AAAA(2), in deciding whether to grant bail, I must also consider the following:
(a) Whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and
(i) the imposition of a condition; or
The applicant’s arguments in favour of bail
37 The applicant filed the below materials in support of the application:
(a) Amended Affidavit in Support of Bail sworn by Mehernoz Bowler dated 17 November 2020 (‘Affidavit in Support’);[23](b) Affidavit of [PL] (the applicant’s father) dated 15 November 2020; and
(c) Submissions dated 23 October 2020.[24]
Arguments in relation to exceptional circumstances
38 The applicant appears to rely on a combination of factors to establish there are exceptional circumstances that justify a grant of bail. They are as follows:
(a) Strength of the prosecution case: The applicant submits the prosecution’s case with respect to the ‘violence and injury’ charges is ‘questionable’ because of credibility issues surrounding the complainant’s recollection of the evening of the incident, the lack of forensic medical evidence;[25](b) Delay and time spent on remand: The applicant concedes he is likely facing a term of imprisonment if the violence charges against him are proven (also taking into account the CCO contravention and the applicant being re-sentenced on the offending that gave rise to that CCO). However if only the ‘lesser’ charges in this matter are proven, the applicant submits his time on remand may exceed his ultimate sentence, due to the delays in the court system occasioned by the COVID-19 pandemic.[26] During the hearing, the applicant also conceded that the delay could not be characterised as ‘inordinate’;[27]
(c) Progress on remand: The applicant has used his time on remand productively, having completed two drug rehabilitation courses, being ‘Cannabis and Me’ (completed 12 October 2020) and ‘Ice and Me’ (completed on 30 September 2020);
(d) Availability of residential rehabilitation: The applicant has been approved for a 12 month residential rehabilitation program at Dreambuilders Transformations (‘Dreambuilders’) in Hoppers Crossing. The applicant relies on evidence from Stephen Dunnett, Program Co-ordinator of Dreambuilders, given both at the hearing and within a letter annexed to the Affidavit in Support.[28] Mr Dunnett lives at the Hoppers Crossing facility. Mr Dunnett confirmed the applicant’s eligibility for their program and the availability of a bed for the applicant.[29] Mr Dunnett gave evidence that he had had two phone calls with the applicant to conduct his intake, all told he had spoken to the applicant for about 40 minutes. Mr Dunnett explained that residents leave the facility two to three times a week, and on Saturdays, to undertake work therapy. Residents supervise other residents during the work therapy, with the supervising resident having to report any absconding to Mr Dunnett. In the program the applicant would be subject to random drug and alcohol screens, and if he breached any bail conditions, Mr Dunnett gave an undertaking that he would report any such breaches[30] to either the Informant or Victoria Police. Mr Dunnett confirmed he had done this in the past. Mr Dunnett conceded that the facility was not secure and that residents could leave if they wanted to. Under cross-examination, Mr Dunnett conceded that if a resident left the facility during the night, Mr Dunnett may not become aware of that until the following morning. The program has been running since 1999 and is described as follows:
This program will equip [the applicant] with the skills and restoration needed to live a fulfilling life that contributes to his family and the community[...]
The Transformations program targets specific needs by introducing group sessions and practical teaching on issues such as; conflict resolution, communication skills, self-worth, life skills, work place ethics, discipline and boundary setting. Through an Individual Treatment Plan we aim to support the resident while they address issues associated with their addiction whilst helping them to discover why their lives have become unmanageable.
The program was first established in 1999 and has evolved over the last 20 years to maintain best practices and principles of recovery and rehabilitation. The program has a high level of success and statistically proven effectiveness shown over a 10-year follow-up of graduates. It is a holistic program that operates with a therapeutic community model that integrates rehabilitation, education, work readiness and support within the four areas of bio, psycho, social and spiritual aspects of a person's recovery
39 The applicant also submits that a surety of $10,000.00 is available, put forward by his father, PL.[31] PL gave evidence that he lives in Queensland and is not intending to return to Victoria, but he gave an undertaking to notify the Informant if made aware of the applicant breaching bail.
Respondent’s material in opposition to bail
40 The respondent filed the following material:
(a) Affidavit in Response to Bail dated 17 November 2020 (‘Affidavit in Response’);(b) Submissions dated 20 November 2020 (‘Respondent Submissions’); and
41 The respondent submits that the applicant has not discharged the burden of satisfying the Court that exceptional circumstances exist to justify bail being granted.[32] They submit that the matters set out by the applicant are ‘not sufficient’ to satisfy the exceptional circumstances test.
42 In response to the applicant’s arguments, and with respect to the applicant’s ‘surrounding circumstances’ the respondent submits as follows:
(a) The nature and seriousness of the alleged offending:[33] the alleged offending is ‘inherently serious’, committed against the applicant’s partner, with a large knife, causing an injury that required stitches. That offending occurred during the operation of a FVIO and a CCO.[34](b) Strength of the prosecution case:[35] the respondent submits that the prosecution case is strong and there is material in the brief to support causation. Under cross-examination, the Informant stated that photos of the complainant’s injuries were captured by the complainant and then recaptured by police taking screenshots of the complainant’s phone. She agreed there was no forensic medical report.[36]
(c) The applicant’s criminal history:[37] involves offending against SS, and breaches of FVIOs for her protection.
(d) Drug and alcohol support:[38] the respondent notes that treatment is voluntary, and that the applicant is expected to transport himself to the facility. The respondent relies on the CCO breach report as evidence of the applicant’s history of poor compliance with treatment and community-based programs.
(e) Delay and potential sentence:[39] the applicant has been in custody since 22 June 2020, which at the date of the hearing is 156 days (including 24 November). The respondent submits that it would be open to a court to impose a significant term of imprisonment given the family violence context of the offending, together with his prior history for similar offending. It is submitted that should the matter proceed to a contested hearing (which may occur in the first half of 2021), the applicant is unlikely to spend more time on remand than any sentence that may be imposed. Further, if he is found guilty of the instant offending, he would also be in breach of the CCO and likely to be liable to resentencing on the offences underpinning the CCO.
(f) The applicant’s personal circumstances associations, home environment and background:[40] The respondent refers to the applicant’s disregard for court orders, and his ‘life-long’ drug habit, which they say contributes to his ‘propensity’ to offend.
(g) Attitude of the complainant:[41] The respondent gave evidence that the complainant wants the charges proceeded with, is supportive of police opposing bail, and also understands her obligations if the matter proceeds. She is also supportive of the FVIO. The complainant had also told the Informant about a further incident that occurred in Acacia Ridge in Queensland on 15 January 2020 where she alleged the applicant had struck her multiple times with a tyre iron. It is alleged that at the time of reporting that matter to Queensland Police, she declined to make a statement, but she is now reconsidering that.
Unacceptable risk
43 The respondent submits that even if the Court is satisfied that exceptional circumstances exist to justify the grant of bail, the applicant poses the following unacceptable risks:
(a) Endangering the safety and welfare of any person, due to:
(i) The applicant’s alleged use of a knife in his assault on SS, and in the alleged offending in WA against his son and son’s friend;(ii) The applicant’s consistent, offensive and threatening text messages to SS both historically (sometimes contacting her the same day he has been released from prison), and after the alleged incident, in breach of the FVIO. SS has expressed to police she believes the applicant will manipulate and coerce her due to her drug addiction, and that he will continue to commit family violence against her.
(iii) The applicant’s threatening text messages to his son after the alleged incident in WA, including the following messages:
[...] and as for Callum [son’s friend] what is that dog saying that I took his choof I wish I cut his head off I have never taken nothing without asking but to late now cunt anyway now you and me are finished I’m coming for you and I’m going to show you how I really work cunt just remember I’ve spent half my life in jail if you weren’t my son I’d cut your throat[...][...]I warned you don’t cross me trust me you won’t even see me coming an tell that dog who is going to hurt me I haven’t finished with him ether you have no idea I live for this shit son or no son I’m going to come for you for what you have done I should just come over now and finish the lot of you I have nothing to lose now dog your[sic] fucked.
(iv) The applicant’s significant history of family violence.
(b) Committing an offence while on bail due to the applicant’s history of doing so, his long history of drug use and addiction, his present lack of employment, and his non-compliance with the current CCO.[42](c) Interfering with a witness or otherwise obstructing the course of justice in any matter, due to applicant’s non-compliance with the FVIO in place for SS’s protection and telephone records which demonstrates ‘no regard’ for that Order, which leads the police to hold concerns that the applicant will attempt to contact SS and pressure her to withdraw her complaint.
(i) The applicant’s mobile phone call charge records indicate between 16 March 2020 and 16 April 2020, he sent 271 text messages to the complainant.(ii) In addition, his mobile phone records indicate that he was persistently breaching the FVIO by contacting her prior to the incident giving rise to the alleged offending on 7 March 2020.
(d) Failing to surrender in custody due to:
(i) The applicant having failed to appear on five occasions in Victoria, and having been convicted for failing to comply with bail in WA.(ii) The applicant absconding to WA after the current incident when he was aware he was wanted by police for interview, which is said to demonstrate his ‘propensity to flee the jurisdiction if given the opportunity.’ The Informant gave evidence that police members had been in contact with the applicant’s family whilst the applicant was living in WA after the offending. She testified that, in her view, the applicant’s parents had little influence over him;
(iii) The applicant’s previous employment as an interstate truck driver, as such, he has contacts in other states.
44 The respondent also submits that there is a high risk of the applicant contravening the FVIO, due his history of contravening FVIOs and the instant offending which occurred while subject to a FVIO. The informant gave evidence that it was her view the applicant would continue to breach the FVIO if released on bail.
45 The respondent gave evidence that the surety did not reassure her about the applicant’s level of risk and gave evidence that she thought he would take no notice of the surety. The Informant did not think the surety would ameliorate risk to an acceptable level. Under cross-examination, PL conceded that when he heard the applicant was in WA, he was relieved that he had got out of Victoria.
46 When the Informant was asked about the option of the applicant residing at the Dreambuilders residential facility, she did not believe that offer would ameliorate the risk of the applicant breaching bail, given his extensive history of drug use and family violence.
Analysis
Step 1 – Do exceptional circumstances justify a grant of bail?
47 In relation to the applicants arguments for the existence of exceptional circumstances, I say the following:
(a) Strength of the prosecution case: In light of the further material that the respondent has now provided (being SS and BT’s statements, injury photographs and doctor’s notes), the argument that the prosecution’s case is ‘questionable’, is considerably undermined. Noting the applicant’s submission that he has an ‘alternative narrative’ of the alleged offending, it is my assessment nevertheless, that this does not appear to be a case where the prosecution case could be described as ‘weak’ in such a manner that would count towards the existence of exceptional circumstances.(b) Delay and time spent on remand: The delay in matters being finalised at trial as a result of the COVID-19 pandemic has led to consideration of general principles to be applied in the context of bail, in particular by Beach JA in Re Diab.[43] I accept that this case will likely be delayed in progressing to a contested hearing. I also accept that the applicant’s time in custody will likely be more onerous due to the additional restrictions in place in response to COVID-19. However, I do not agree that, having regard to the applicant’s relevant family violence offending history including, the recent convictions for offending against SS, and bearing in mind the nature of this alleged offending, and the disturbing photos of her injury, that the applicant’s ultimate sentence would likely exceed his time on remand. This is particularly so in light of the fact that he is also facing a charge of contravening a CCO and if found guilty, is liable to be re-sentenced on the offending that led to the CCO;
(c) Residential rehabilitation: This Court has previously considered the availability of rehabilitation treatment ‘persuasive’ in establishing exceptional circumstances, but it has not always sufficient to either establish exceptional circumstances or otherwise ameliorate risk.[44]. Further, this applicant has persisted with his offending, including family violence offending, in spite of the current CCO which provided him with supervised, therapeutic opportunities and support. He did not avail himself of the support and supervision offered by the CCO. This does not bode well for the applicant’s ability to accept supervision within a residential facility. While it is encouraging that the applicant has undertaken some course work for drug offending whilst on remand, and is willing to attend Dreambuilders, he has not shown any real commitment to addressing his drug addiction, or his apparent anger management issues, in the past, nor does he appear to have taken any steps to address his family violence offending. In fact, it appears to the Court, having regard to the applicant’s history, that his family violence offending is escalating. I note Counsel for the respondent agreed with this.
(d) Family support and surety: The applicant’s familial support, albeit limited, is a matter that is favourable to him, as is the availability of a modest surety. However, neither are particularly ‘out of the ordinary’ or exceptional. Further, I am not convinced that PL, although well-intentioned, would have any influence over the applicant’s behaviour.
48 On balance, in light of the serious nature of the alleged offending, in breach of a CCO and a FVIO, a seemingly strong prosecution case, the potential for further charges, and the lack of evidence that shows the applicant is ready to rehabilitate, even recognising the offer of a placement at Dreambuilders, I am not satisfied that exceptional circumstances are shown in this case.
Step 2 – does the applicant pose an unacceptable risk?
49 Even if I am wrong as to my finding on exceptional circumstances, I am well satisfied by the respondent that there is an unacceptable risk that that the applicant, if released on bail, would endanger the safety or welfare of a person, commit offences on bail, interfere with a witness (SS), or fail to answer bail.
50 Of great concern is the fact that the current alleged offending occurred whilst the applicant was on a CCO for previous offending against SS, and during the operation of a FVIO in place for SS’s protection. In light of this, and his alleged text messages to SS after the incident, also in breach of the FVIO, the Court is satisfied the applicant presents an unacceptable risk of endangering the safety of SS if granted bail.
51 On the basis of the applicant’s offending history and his apparent disregard for his CCO, also in place for family violence offending, the Court is satisfied that he presents an unacceptable risk of committing further offences whilst on bail.
52 Also concerning is the fact that even after being told by police that he was wanted for questioning, the applicant left the jurisdiction of Victoria and visited his son in WA where he is alleged to have been violent towards his son and his son’s friend. He is then alleged to have fled back to Victoria. The Court considers, in light of the applicant’s past history whilst on bail, and present circumstances, that he poses an unacceptable risk of failing to answer his bail.
53 The applicant’s text messages to SS and his son are also very concerning and on their face appear to contain numerous threats, and requests that his son withdraw his complaints. Given the applicant’s history of violence against SS and his text messages to her, as well as his recent behaviour towards his son, the Court is satisfied he poses an unacceptable risk of interfering with witnesses.
54 The Court has little confidence the applicant would attend or remain at Dreambuilders if released from prison to reside there given his recent flight when wanted by police. I am not satisfied he would have the commitment to stay at Dreambuilders, or that his behaviour could be contained by the level of staff supervision described. On this point, I note further PL’s evidence that in the past, the applicant had never made a “full go” of drug rehabilitation.
55 Because the allegations in the present case involve family violence offences, the Court must consider whether – if the applicant were released on bail – he would pose a risk of committing family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.[45] As detailed above, the applicant is currently subject to an active FVIO.
56 Preventing family violence in the community can be difficult because victims are often reluctant to come forward and/or may be easily dissuaded from pursuing complaints. The presence of a FVIO does not, on the face of the evidence before me, appear to have dissuaded the applicant from offending in the current instance, or in the past, or from contacting SS. Therefore, I am not convinced that the imposition of the current FVIO or bail conditions would mitigate the risks the applicant poses not only of committing further family violence, but also of seeking to dissuade SS from proceeding with her complaint.
57 Given the applicant’s poor history of compliance with previous bail orders, CCOs, and other court orders, his family violence history committed against different partners and his persistent drug use and offending, I am not satisfied that the risks he poses can be sufficiently ameliorated with conditions on bail.
58 There was little persuasive material before the Court that suggested these risks could be managed by bail conditions. The applicant’s behaviour appears to be escalating in seriousness, and there is scant evidence that at the present time he is capable of complying with a drug treatment program. I have no hesitation in concluding that on the evidence before the Court the applicant is a poor candidate for bail.
59 Accordingly, bail is refused.
[1] On 23 June 2020 and 16 October 2020.
[2] On the 23 June 2020.
[3] On 16 October 2020.
[4] Affidavit in Response to Bail dated 17 November 2020 (‘Affidavit in Response’), PM-1 [30].
[5] Amended Affidavit in Support of Bail sworn by Mehernoz Bowler dated 17 November 2020 (‘Affidavit in Support’), JL-1.
[6] Affidavit in Response, PM-1 [37].
[7] As well as the following charges: commit indictable offence whilst on bail, retention of stolen goods, drive whilst suspended, and exceed speed.
[8] Affidavit in Response, PM-1.
[9] Ibid.
[10] Affidavit in Response, Exhibit G.
[11] He also has a limited history in WA and SA with mainly historical driving and drug offences. He also has a limited history in NSW, with convictions mainly for driving and drug offending between 2012, and 2020. Most recently he was fined $500.00 for a drug possession charge that occurred on 21 January 2020.
[12] The applicant was also sentenced for a charge of failing to answer bail that day.
[13] Affidavit in Response, PM-1 [33].
[14] Affidavit in Support, [15].
[15] The Act s 4A(1A). The Affidavit in Support, incorrectly refers to s 4AA(3) of the Bail Act 1977 (‘the Act’), which relates to the ‘show compelling reason’ test.
[16] Namely, Charges 1, 6, 7, 8 and 9, see Affidavit in Response, [12]: Making a threat to kill that is also a family violence offence (item 7, Sch 2 of the Act); contravening a FVIO, which in the course of committing the applicant allegedly used violence, and in the preceding 10 years he has been convicted of an offence where he used or threatened to use violence against any person (item 18(a), Sch 2 of the Act); an indictable offence, which in the course of committing, the applicant is alleged to have used an offensive weapon (item 23, Sch 2 of the Act).
[17] An offence against the Act (item 30) and offences falling within the definitions in items 18(a) and 7 of Sch 2.
[18] The Act s 4A(1A).
[19] The Act, s 4A(3).
[21] Ibid [65] (citations omitted).
[22] Per the Act at s 3(a) an offence against section 37(2), 37A(2), 123(2), 123A(2) or 125A(1) of the FVP Act; or (b) an offence where the conduct of the accused is family violence: in this case charges 1-9.
[23] There was an Affidavit in Support dated 2 November 2020 originally filed, but the Affidavit had to be amended and re-filed due to formatting issues with the Exhibit cover sheets.
[24] These were filed during the hearing.
[25] Affidavit in Support, [18].
[26] Applicant Submissions dated 23 October 2020, [6(l)].
[27] They say a contested hearing would not likely be heard until April 2021.
[28] Affidavit in Support, MB-5, letter dated 17 November 2020.
[29] Ibid.
[30] Including by absconding from the facility.
[31] Affidavit of PL dated 15 November 2020.
[32] Affidavit in Response, [23].
[33] The Act s 3AAA(1)(a).
[34] Also relevant to the Act s 3AAA(1)(f)(i).
[35] The Act s 3AAA(1)(b).
[36] The Court notes there was a treating medical report in relation to the complainant’s injuries.
[37] The Act s 3AAA(1)(c), (e)(v).
[38] The Act s 3AAA(1)(i).
[39] The Act s 3AAA(1)(k), (l).
[40] The Act s 3AAA(1)(g).
[41] The Act s 3AAA(1)(j).
[42] Affidavit in Response, PM-1.
[44] [2020] VSC 146, citing Rajic v R [2016] VSC 27; Re an application for Bail by Vasko Stankovski [2016] VSC 310; Re an application for bail by Fadi Afram [2018] VSC 708. See also: Re Nicholls [2020] VSC 189.
[45] The Act, s 5AAAA(2).
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2020/785.html