Re application for bail by Harley Brown [2021] VSC 738 (10 November 2021)

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

IN THE MATTER of the Bail Act 1977

v

IN THE MATTER of an application for bail by HARLEY BROWN	Applicant

JUDGE:	Niall JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2021, 4 and 10 November 2021
DATE OF JUDGMENT:	10 November2021
CASE MAY BE CITED AS:	Re application for bail by Harley Brown
MEDIUM NEUTRAL CITATION:	[2021] VSC 738

CRIMINAL LAW – Application for bail – Charges of committing an indictable offence on bail, contravening a conduct condition of bail, assaulting an emergency worker on duty and resisting an emergency worker on duty – Applicant intellectually disabled and reliant on support – Previously found to be unfit to plead – Exceptional circumstances conceded – Whether unacceptable risk of reoffending if bailed – Bail granted – Bail Act 1977 ss 1B, 4A, 4AA, 4D, 4E, 5AAAA, 30A, 30B, 31.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Lowy	Criminal Lawyers Geelong

For the Respondent	Mr S McGinness	Legal Services Department, Victoria Police

Introduction
1 Harley Brown (‘the applicant’) is a 27 year old man with an intellectual disability. He has been in an intimate relationship with his aunt, LC, who also has an intellectual disability. The relationship is, in many ways fraught, and police allege it has been associated with violent behaviour by the applicant towards LC. Some of that behaviour, if proven, is serious. An interim Family Violence Intervention Order (‘FVIO’) is in place that prevents the applicant going to LC’s home. In what follows I will set out the allegations but note that they have not been proven. As will emerge there is also a real issue about the applicant’s fitness to plead to the allegations.
The alleged offending – the second Horvath matter
2 In circumstances to which I will later refer, on 11 September 2021, the applicant was charged and bailed on a number of offences relating to LC (‘the first Horvath matter’). Those charges were recklessly causing injury (two counts), assault with a weapon, unlawful assault, criminal damage (two counts), contravening a FVIO intending to cause harm or fear, and contravening a final FVIO.
3 After his release on bail, police were informed that the applicant had attended LC’s home. At 12.40 pm on 12 September 2021, police attended the address and the applicant answered the door. He was told that he was not supposed to be at LC’s residence and that he was under arrest. The applicant responded that he was allowed to be there. When police asked him to stand to be handcuffed, he attempted to flee inside of the house and hit a police officer with the screen door in the process.
4 He was charged with the following offences by Detective Senior Constable Jacob Horvath (‘the second Horvath matter’):

5 The applicant has been on remand since 12 September 2021 when he was arrested and charged in this matter. He was refused bail in the Geelong Magistrates’ Court on 15 September 2021. It appears that bail was refused in the context of the applicant not having sufficient funding through the National Disability Insurance Scheme (‘NDIS’) for 24 hour support in the community. The applicant’s NDIS plan has since been reviewed and 24 hour support seven days per week is now available, at least on a short term basis.
6 The second Horvath matter is next listed for mention in the Geelong Magistrates’ Court on 24 November 2021.
Other outstanding matters and procedural history
7 The applicant is facing a number of unresolved charges mainly concerning alleged offending against LC. These matters are also listed for mention on 24 November in the Geelong Magistrates’ Court. The details are as follows:
Informant Drever matter (summons)
8 On 28 April 2020, LC became agitated after the applicant refused to accompany her on a walk and she eventually requested that he leave her home. The applicant hit and kicked LC until his carer intervened. He then punched a hole in LC’s bedroom door. Police attended and served him with a Family Violence Safety Notice.
9 The applicant was charged on summons on an unknown date^[5] with criminal damage, unlawful assault, and assault by kicking.
Informant Dickson matter (summons)
10 On 31 July 2020, the applicant was with his carer, Gbeadeh Toubay Sangar. At the applicant’s request, Mr Sangar drove the applicant to LC‘s house,where the applicant argued with her. The applicant then left and kicked and cracked the windscreen inside of Mr Sangar’s car on the way home.
11 The applicant apologised. Mr Sangar reported the incident to police, who interviewed the applicant at the scene. He admitted to causing the damage and said he wanted to pay to fix it.
12 The applicant was charged on summons with wilful damage to property on 1 September 2020.
Informant Smith matter (summons)
13 On 10 June 2021, the applicant was at LC’s home when they got into an argument. The applicant kicked LC’s leg multiple times. Police attended and took the applicant to Corio Police Station where a Family Violence Safety Notice was issued.
14 The applicant admitted to kicking LC during his interview. He was charged on summons on 29 July 2021 with assault by kicking and unlawful assault.
15 On 22 June 2021, a final FVIO was made against the applicant at the Geelong Magistrates' Court to protect LC. The order included safe contact conditions, including not to commit family violence against LC or destroy her property. It was served on the applicant on 1 July 2021.
The first Horvath matter
16 At 4.00 am on 11 September 2021, the applicant was at LC’s home when they argued over cigarettes. This escalated to the applicant punching LC’s arm, kicking her leg, and threatening her with a 15 centimetre knife. LC received a small laceration on her hand from trying to protect herself. The applicant then swung the knife towards her chest but LC avoided being struck. The applicant also broke crockery, cups, and a bedroom window during the incident.
17 Police attended and arrested the applicant. He was charged on 11 September with recklessly causing injury (two counts), assault with a weapon, unlawful assault, criminal damage (two counts), contravening a FVIO intending to cause harm or fear, and contravening a final FVIO.
18 He was then granted bail on the same date by a bail justice on conditions including as to residence, not to go or remain within 200 metres of LC’s home, not to contact witnesses for the prosecution other than the informant, and to comply with any active FVIO. His bail in the first Horvath matter was extended on 20 September to the next listing date on 24 November 2021.
The applicable legislation
19 When interpreting and applying the Bail Act 1977 (‘the Act’), the Court is required to take into account the guiding principles set out in s 1B(1) of the Act.^[6]
20 Because the applicant seeks bail for offences against the Act which are Schedule 2 offences in their own right,^[7] bail must be refused unless the applicant satisfies the Court that exceptional circumstances exist that justify the grant of bail.^[8]
21 Under s 4AA(2)(c)(i) of the Act, the exceptional circumstances test applies, as those Schedule 2 offences were allegedly committed while the applicant was on bail for Schedule 2 offences. The respondent submitted that the contravention of the FVIO charges in the first Horvath matter (on which the applicant was bailed shortly before the alleged offending in the second Horvath matter) fall within item 18 of Schedule 2. Contravening a FVIO^[9] is a Schedule 2 offence under item 18 if, in the course of committing that offence, the accused is alleged to have used or threatened to use violence and:

22 Charge 3 of contravening a FVIO intending to cause harm or fear in the first Horvath matter is particularised in the charge sheet as arising from physical violence. Further, the applicant was found guilty of unlawful assault and making a threat to kill in 2016, and unlawful assault in 2017 (item 18(a)). Given that the applicant must meet the exceptional circumstances test on this basis, it is not necessary for me to be satisfied that the applicant has used or threatened to use violence against LC.
23 If the Court is satisfied that there are exceptional circumstances justifying the grant of bail, the Court must apply the ‘unacceptable risk test’.^[10] Bail must be refused if the respondent satisfies the Court that there is a risk of a kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk.^[11]
24 In considering both steps above, the Court must take into account the ‘surrounding circumstances’ contained in s 3AAA of the Act,^[12] and in relation to risk, consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.^[13]
Intervention orders and family violence risk
25 As already noted, there have been a number of interim FVIOs in place in relation to the applicant and LC. On 15 September 2021, the FVIO made against the applicant to protect LC on 22 June 2021 was varied by the Geelong Magistrates’ Court to an interim FVIO with full non-contact conditions. The FVIO matter is next listed on 24 November 2021.
26 Section 5AAAA(1) of the Act requires the Court to make certain inquiries of the prosecutor including whether there is in force a FVIO against the applicant.
27 I note that s 5AAAA(2) of the Act requires the Court, considering the release of a person charged with a family violence offence, to consider whether, if the accused were released on bail, there would be a risk that they would commit family violence; and whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO. Section 3 of the Bail Act defines ‘family violence offence’ as: (a) an offence against section 37(2), 37A(2), 123(2), 123A(2) or 125A(1) of the Family Violence Protection Act 2008; or (b) an offence where the conduct of the accused is family violence. Although the context of the offending in the second Horvath matter is that the applicant attended LC’s house when he was not permitted (and he is charged in other matters with family violence against her), the actual offences for which he seeks bail are bail-related and resisting arrest. It is not necessary to decide whether s 5AAAA(2) of the Act applies because the risk of family violence directed towards LC is a central matter on the application and requires very close attention.
The applicant’s personal circumstances
28 The applicant is 27 years old and has an intellectual disability and a global cognitive impairment with a full scale IQ of 48. His mother also had an intellectual disability and he was removed from her care as a toddler due to neglect and abuse. He remained in state care until the age of 18, he experienced frequent changes to his residential arrangements, and attended specialist schools due to learning difficulties. The level of intellectual deficit is quite profound.
29 The applicant also has diagnoses of attention deficit hyperactivity disorder, epilepsy, Tourette’s disorder, and depression. He is in receipt of a disability support pension and a NDIS package. He requires a high level of assistance with almost all aspects of his daily living.

30 The applicant is currently receiving funding under the NDIS.
31 It appears that at an earlier time, the applicant had funding for 24 hour support seven days per week, however, this ceased at some point as the applicant was not staying at his home overnight.
32 Mark James, who is a social worker and director of All in One Support Services, is the applicant’s NDIS co-ordinator. In a letter tendered on the bail application in the Magistrates’ Court, Mr James said that at the time of the second Horvath matter the applicant only had sufficient NDIS funding for supports between 9.00 am and 5.00 pm seven days per week. Mr James indicated that a plan review would need to occur to determine whether additional support could be funded.
33 Mr James gave evidence before me. He explained that he had been working with the applicant for about five years and was aware of his needs. He said that the applicant has funding that is currently being used to pay for care from 9.00 am to 5.00 pm seven days per week. He said a carer assists the applicant with daily living needs. He said that a request has been made to vary the plan to fund 24 hour care but at the time of giving evidence the plan had not been approved. He said that in the meantime the existing funding could be used for that purpose and if spent in that way would last about two months.
34 When asked in cross examination how a carer would respond in the event the applicant tried to make contact with LC, he explained that a carer could not physically restrain the applicant from doing so, but could try and divert his attention or persuade him not to do so. He said that in the event that the applicant persisted or was otherwise in breach of his bail conditions they would call the police.
35 As the funding status of the applicant was uncertain, and given the importance of having support for the applicant in the event he was released on bail, the application was adjourned to provide details of funding and the level of care that would be available to the applicant immediately on release. The proposed level of care would involve a team of about 10 support workers and it was important that the proposed measures be clearly identified before the applicant was released on bail.
36 The matter has again adjourned on 4 November when the medium term status of funding remained unresolved and his existing carers were not in a positon to resume immediate care. The application was adjourned to 10 November 2021.

37 The applicant has some criminal history between 2016 and 2017, although he has no prior convictions. It primarily comprises bail and property damage related offences, as well as unlawful assault and making a threat to kill.
Fitness to stand trial
38 Significantly, the Office of Public Prosecutions discontinued prosecutions against the applicant in the County Court in 2020 in relation to six matters. These appear to have involved similar offending to the current matters faced by the applicant, being family violence allegations in contravention of a FVIO and bail related offences.
39 This followed reports by Dr Matt Treeby (clinical neuropsychologist and psychologist) on 5 June 2019, and Dr Joseph Sakdalan (clinical psychologist) on 14 April 2020, who both formed the view that the applicant was unfit to stand trial. Dr Treeby also considered the applicant had a defence of mental impairment.
40 Dr Treeby opined:

42 The applicant conceded that family violence is inherently serious, however, it was not conceded that this was a serious example of this type of offending. Whilst the applicant did not submit the prosecution case is weak, he submitted his fitness to be tried is a live issue. A fitness assessment in relation to the current offending was to be undertaken, however, the assessment appointment has been cancelled twice due to prison lockdowns. Due to the applicant’s IQ and based on the previous assessments, it was submitted to be almost certain he will be found unfit.
43 The applicant relied on his limited criminal history and absence of criminal convictions in support.
44 The applicant’s intellectual disability and cognitive impairment are submitted to render him vulnerable in custody. Further, this is the applicant’s longest period on remand and he is reportedly frightened.
45 The applicant further submitted that, as a matter of public policy, he should not remain in custody awaiting disposition given the severity of his cognitive impairment and with NDIS supports available that could not be provided to a similar level in prison.
46 The applicant also referred to the delays in the County Court (should this matter proceed in the committal stream due to the fitness issues raised), and submitted if the charges are proven the time spent on remand would exceed any term of imprisonment imposed.
47 The applicant proposed to reside at his home in Bell Post Hill (or as directed by his NDIS provider).
48 As to risk, the applicant relied on the support he will receive through the NDIS, accompanied by bail conditions requiring him to live at his Bell Post Hill address or as otherwise directed by his NDIS provider. The affidavit in support also proposed a condition that the applicant follow all lawful directions of his NDIS provider or support workers but this was not proposed in the submissions.
The respondent’s contentions
49 The respondent conceded that it may be open to the court to find that exceptional circumstances exist that justify the grant of bail.
50 However, the respondent opposed the application on the basis that there was an unacceptable risk that the applicant would endanger the safety or welfare of any person and commit an offence while on bail.
51 The respondent submitted that the case is strong, however, it was conceded by the respondent, that if future assessments mirror those provided with the affidavit in support, then fitness to plead may be a live issue. It was noted that there is no recent evidence as to the applicant’s fitness in the context of the current offending.
52 The respondent indicated remittance of the Horvath charges to the committal stream due to the fitness issues raised cannot be considered by the Office of Public Prosecutions until the outcome of the plan review is known.
53 The respondent submitted the current offending, when viewed in aggregate, involved a serious example of family violence. The informant’s report noted the applicant is recorded in the LEAP database as the perpetrator in multiple family violence incidents and he has criminal history involving physical violence and property damage.
54 The respondent asserted that the previous prosecutions were discontinued due to fitness, not due to factual issues with the prosecution case.
55 The respondent noted that the applicant will have spent 48 days in custody up to and including the date of the hearing. It was submitted that a term of imprisonment for the FVIO contraventions and assault charges would be within range, however, a rehabilitative disposition would be likely due to the applicant’s circumstances.
56 LC told police on 20 October 2021 that she wishes for the applicant to return to live with her and she believes he will do so even if he is provided with other accommodation.
57 The respondent submitted that the applicant’s history including as alleged in the discontinued prosecutions demonstrates a ‘pattern of behaviour’. The risk of future family violence is ‘extremely high’, considering the current allegations, previous history, and 15 records in the LEAP database between June 2018 and September 2021, where LC has been the victim and the applicant was responsible. The respondent also submitted that the applicant has an inability to control his anger and has contacted LC whilst remanded, expressing an intention to see her if released.
58 The respondent submitted that the current supports in place, which are limited to 9.00 am to 5.00 pm, do not ameliorate the risk of the applicant reoffending and the applicant’s disability is a risk factor for non-compliance with the FVIO or bail conditions.
59 The respondent relied on the applicant being charged 19 times with bail-related offences, and that the current offending occurred the day following his grant of bail in the first Horvath matter.

60 I am satisfied that there are exceptional circumstances. Having regard to the medical evidence and the nature of the charges there is a very real issue concerning the applicant’s fitness to plead. He suffers from a profound intellectual impairment that affects his daily life and plainly affects his reasoning process to a significant extent. He has a very low IQ and is dependent on a high level of care for his daily functioning.
61 It appears that the respondent has accepted that the applicant has been unfit to plead in respect of earlier offending and the condition of the applicant is obviously unremitting, and there is no reason to consider it has improved over time.
62 In addition to his fitness to plead, the incarceration in prison on remand of a person with the level of intellectual impairment suffered by the applicant raises important issues. I accept that there is some material that shows that he is coping on remand after a difficult start and that he is now more settled, nevertheless I am not persuaded that he has a proper understanding of his situation and this makes the incarceration more burdensome and inappropriate.
63 It is plain, and understandable, that the ongoing risks of offending towards LC are at the centre of the current application. The respondent makes the valid point that having regard to past events, LC is at risk of being subjected to further violence by the applicant in the event he is released on bail. However, as the Court of Appeal said in HA (a pseudonym) v The Queen,^[15] in the absence of any specific statutory provision, preventative detention is alien to fundamental principles that underpin our system of justice.^[16] It undermines the system of justice to use remand as a form of preventative detention to protect against the risk of criminal behaviour caused by mental impairment.
64 Given the applicant’s very poor level of comprehension, the imposition of conditions directed to him are unlikely to be of much utility in protecting against further offending unless the applicant has assistance with compliance.
65 As foreshadowed above, when this matter was first before me on 29 October 2021, 24 hour care was still in the process of being approved by the NDIS. I adjourned the matter to 4 November 2021, on the basis that approval would be obtained by this date. On 3 November 2021, I was advised in a letter sent by the applicant’s social worker that 24 hour care was still in the process of being approved and that, in any event, it would not be possible to commence 24 hour care until 8 November. On 4 November 2021, the applicant requested an adjournment until after 8 November so that his care arrangements could be approved. I adjourned the matter to 10 November.
66 On 10 November 2021, I was advised that the applicant has 24 hour care available under his current funding, at least for a limited period of time, and that this will be available for approximately seven weeks. I was also advised that a formal response from the NDIS regarding the applicant’s funding going forward is expected imminently.
67 The fact that the applicant has in place NDIS funding for 24 hour care, which was not in place when bail was refused in the Magistrates’ Court, will mean that the risk will be significantly ameliorated. In reaching that conclusion I am conscious of the potential limitations on what the NDIS workers can do. Their role is not to physically restrain the applicant but I am persuaded that the continuous oversight of an NDIS worker will assist in keeping the applicant away from LC and that they will be able to call the police for assistance. I appreciate that this may place strain on those involved, however, I am not persuaded that the burden would be onerous or justify keeping the applicant on remand.
68 I am satisfied that there are presently in place suitable arrangements for the care of the applicant at least in the short term. I will not require 24 hour care as a condition of bail. Whether or not the applicant has sufficient NDIS funding to allow that level of care beyond the current funding envelope is outside of his control. Obviously a central purpose of his care arrangements is to keep both the applicant and others, most importantly LC, safe. Having a carer with him will no doubt reduce the risk that the applicant will seek to contact LC, and under the current care arrangements it is contemplated that he will have that level of support. However, a shortfall in funding should not mean that the only option is for the applicant to be remanded in custody in a prison. That is particularly so where the question of the applicant’s fitness to plead, which will inevitably arise, will be dealt with in the County Court which is subject to significant delay.
69 The applicant will be bailed to appear before the Magistrates’ Court on 24 November 2021. Given the uncertainty as to the future progress of the charges including the attitude of the prosecution to the question of the applicant’s fitness to plead, which may significantly affect the delay in finalising the charges, and the uncertainty as to the applicant’s ongoing level of support once his current funding comes to an end, it would be appropriate for the Magistrates’ Court to be informed about the ongoing level of care at the next hearing.
70 I was advised by Mr James, who gave evidence before me again on 10 November 2021, that in the event that funding is not available for adequate care the informant will be notified. I do not think it is necessary for this Court to impose judicial monitoring. The applicant’s bail will be returnable to the Magistrates’ Court and in the event an issue as to fitness to plead arises the matter will be transferred to the County Court. I consider that the applicant’s bail will be subject to adequate supervision in those courts
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^[5] I note that the charge sheets are undated, however, he was summonsed to appear at Geelong Magistrates’ Court on 13 October 2020 so he was presumably charged prior to that date.

^[8] Bail Act 1977 ss 4AA(2)(c)(i), 4A(1A) and 4A(2). Additionally, the indictable offences for which he seeks bail (assaulting an emergency worker on duty and resisting an emergency worker on duty) also fall within Schedule 2 as they were committed while the applicant was on bail or summons for other indictable offences: e.g. recklessly causing injury in the first Horvath matter and criminal damage in the Drever matter (sch2, items 1(a) and (b)).

Supreme Court of Victoria

Re application for bail by Harley Brown [2021] VSC 738 (10 November 2021)