Re JK [2022] VSC 714 (21 November 2022)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

IN THE MATTER of an application for bail

Between:

JK (a pseudonym)	Applicant

-and-

DETECTIVE SENIOR CONSTABLE SAMANTHA PEREZ	Respondent

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	17 November 2022
DATE OF WRITTEN REASONS:	21 November 2022
CASE MAY BE CITED AS:	Re JK
MEDIUM NEUTRAL CITATION:	[2022] VSC 714

CRIMINAL LAW — Application for bail — Applicant, aged 57, charged with assault with intent to commit sexual act, recklessly causing injury, and threat to commit sexual offence — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others, offending, or interfering with witnesses or otherwise obstructing course of justice — Serious allegations, but bizarre — Complainant applicant’s 77-year-old mother-in-law — Applicant allegedly declared to complainant, “I want to make the sex with you,” and punched her repeatedly, breaking her nose — Applicant psychotic at time, but not so now — Applicant suffering profound grief over death of wife a year earlier — Whether psychosis drug-induced or resulted endogenously from mental illness — Psychologist opines drug-induced psychosis — No psychiatric report yet — Complainant fearful of applicant being bailed — Family violence intervention orders now in place — No prior criminal convictions — Support of CISP and treatment by psychologist — Contestable issues on mens rea and mental impairment — Delay of 12 months between arrest and contested hearing in Magistrates’ Court — If bailed refused, period in custody very likely to exceed any prison sentence (if imprisoned at all), if charges proved — Compelling reason established — Conditions of bail and other factors render risks acceptable — Bail granted on own undertaking with conditions — Bail Act 1977 (Vic), ss 4, 4AA, 4C, 4D, 4E & 5AAAA; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 5 & 20.

APPEARANCES:	Counsel	Solicitors

For the Applicant	Mr A Chernok	Valos Black & Associates

For the Respondent	Mr G Carr	Victoria Police, Legal Practice Group

Overview
1 JK,^[1] aged 57, applies for bail. He is charged with assault with intent to commit a sexual act,^[2] recklessly causing injury,^[3] and threatening to commit a sexual offence.^[4]
2 The incident giving rise to the charges occurred on 18 May this year. Police were called and JK was arrested immediately thereafter. He has been in custody ever since — i.e., for six months now. He has no criminal convictions.
3 The behaviour alleged, while serious, is also bizarre, to say the least. The complainant LM is JK’s 77-year-old mother-in-law. JK’s wife (LM’s daughter) PQ had died a year earlier after a long battle with cancer. He was grief-stricken, and descended into frequent consumption of alcohol and methamphetamine. The charged events occurred in LM’s home early in the morning after she had allowed JK to stay the night. It is alleged that, after displaying very strange behaviour from the time he arrived (at 2:00 a.m.), including asking whether PQ was there, and later screaming and stabbing at a pillow with a wooden spoon, at around 6:30 a.m., JK, out of the blue, did this. He declared to LM, “I want to make the sex with you,” and then punched her repeatedly to the face (which broke her nose) while uttering the same declaration.
4 There are two main issues on this application. The first is whether JK has established a compelling reason justifying bail. It is obvious that he was psychotic, or at least in a very disturbed mental state, at the time of the alleged offending. It seems to me that there will be difficulties in establishing the intent required to prove the charges, especially the sexual intent. Whether his mental state might additionally sustain a defence of mental impairment will not be known for at least a few weeks, when a psychiatric report is to be provided to JK’s solicitors.
5 Nevertheless, given his psychosis at the relevant time, even if found guilty at a summary hearing, it is inevitable that JK’s moral culpability would be found to be very low, or even non-existent. It is very unlikely that he would be imprisoned, or, if he were, that the duration of any term of imprisonment (which might be combined with a community correction order) would exceed the six months he has already spent in custody. Thus, the delay before a contested hearing (which will not occur before April next) is very likely to be such that, if JK is not bailed now, his period in custody will exceed any prison sentence imposed on him, were the charges proved against him.
6 I am satisfied that the latter point alone amounts to a compelling reason justifying bail, and that the argument for bail is even stronger when regard is had to the difficulties in proving all elements of the offences charged.
7 The second issue is whether the prosecution has established that there is an unacceptable risk that, if granted bail, JK would endanger the safety or welfare of others, commit an offence, or interfere with witnesses or otherwise obstruct the course of justice. The disturbing features of the alleged offending, JK’s recent history of alcohol and methamphetamine abuse and weird behaviour, the lack of treatment of his conditions (whatever they may turn out to be), and his desire to contact his in-laws (despite the presence of intervention orders prohibiting such contact), point to some risks of the kinds asserted. However, I am not satisfied that those risks are unacceptable. Instead, I am persuaded that JK’s lack of prior convictions, his preparedness to accept the support of the Court Integrated Services Programme (“CISP”) and treatment from a psychologist, and the proposed conditions of bail, mean that those risks are at, or at least are reduced to, an acceptable level.
8 Accordingly, I consider that bail must be granted. JK will be released on his own undertaking with conditions.
9 My more detailed reasons for these conclusions follow.^[5]
Summary of events
10 The evidence giving rise to the charges may be summarised in this way.
11 As indicated earlier, the complainant LM is JK’s 77-year-old mother-in-law. LM’s daughter PQ and JK were married for 37 years. JK nursed his wife throughout her ultimately unsuccessful battle with cancer. He has taken her passing very badly. He was overcome with grief at the time of the charged conduct, and perhaps still is. Following her death, he descended into abuse of methamphetamines and alcohol as a means of numbing his pain. His behaviour, however, became increasingly erratic and strange.
12 At about 2:00 a.m. on 18 May 2022, JK turned up unannounced at LM’s front door, and roused her from her sleep. He asked, “Is [PQ] in?” (This was the first sign, among many, of his disturbed state.) He said he did not want to sleep alone. LM let him in. She went back to bed, and he went to sleep in the spare room.
13 Later that morning, but still very early, LM could hear JK screaming in his room. He was shouting, repeatedly, “I want to go to the creek,” and was making loud banging noises. She went to his room and saw JK kneeling on the floor stabbing a pillow with a wooden spoon. He said, “[PQ] told me to kill [SR].” (It is thought that the mention of SR was a reference to JK’s brother-in-law — i.e., PQ’s sister’s husband.)
14 LM left the room and went to watch television in the lounge. The noises stopped.
15 At about 6:30 a.m., JK called out to LM to come to his room. When she arrived, JK said to her, “I want to make the sex with you.” Shocked, LM said, “[JK], you know who I am?” He replied, “Yes, I know, but I want to make sex with you.”
16 JK then lunged at LM and grabbed the front of her dressing gown with two hands. He pushed her and she landed on her back on the bed. He jumped on the bed and, after standing up, straddled her. He then punched her to the face, causing her nose to bleed. LM kicked out at him, pushing him backwards off the bed. When she stood up, he lunged at her again. Blood from her face had dripped down her body and pooled on the floor. JK grabbed at her dressing gown again to push her backwards. Her feet slipped on the pooled blood, causing her to fall to the floor. JK punched her multiple times to her head, face and body. He continued to scream, “I want to make sex with you!”
17 LM kicked at him again and pushed him backwards. She stood up and ran out of the room, into the hallway. As she ran, she hit the button on her medical alert bracelet. JK followed her and pressed the “cancel” button on the medical alert receiver in the hallway. LM made it to the front door, and opened it. JK grabbed her from behind and pulled her back inside the house, and closed the door. After a short scuffle in the hallway, LM broke free and ran out the front door and to her neighbour’s house. The neighbour let her inside.
18 Meanwhile, JK looked out the front door. He was wearing only his underwear and holding a rolling pin. He went back inside. After a short time, he exited again, this time wearing blue jeans and a black t-shirt. He was holding two knives. He went to the neighbour’s front door, and banged on it numerous times. The neighbour screamed out, “Fuck off,” and then called triple-zero.
19 A short time later, JK returned to LM’s house. He discarded one of the knives under the wheel well of his vehicle (which was parked in the driveway), and then entered the premises.
20 Most of the events that occurred outside the house were captured by CCTV (with audio) from two angles.
21 At about 6:45 a.m., police arrived at LM’s address. JK exited the residence and, upon seeing police, discarded a kitchen knife on the front porch. He was arrested.
22 In the statement of a police constable involved in JK’s arrest, the following things were said. While in the police divisional van, JK was screaming to himself, “God is good, God is great!” It is said that, later, in the course of a mental health check, JK told a forensic medical officer that he was “from a satanic family and his mother-in-law returned from the [dead] and is now a clone”. It is also alleged that JK said that his late wife told him in his sleep that he needed to kill his mother-in-law.
23 Unsurprisingly, JK was declared unfit for interview.
24 LM was taken to the Northern Hospital by ambulance. She had suffered injuries to her face, head and nose, including numerous fractures of the nasal bones and bony nasal septum, and significant soft tissue swelling of the eyes and infraorbital regions. She underwent surgery to her nose and was discharged from hospital on 20 May 2022 (i.e., two days after her admission).
25 The photographs taken of LM while in hospital are confronting. She has two black eyes, plaster on her nose, a swollen face, and bruising over parts of her face and head. It is troubling to see anyone in that state, but it is all the more harrowing to see a woman of her age so battered and bruised.
Bail refused in Magistrates’ Court
26 On 18 July 2022, JK applied for bail at Broadmeadows Magistrates’ Court. The magistrate refused the application because he was satisfied that JK presented an unacceptable risk of offending on bail and/or endangering the welfare of the community.
Applicable tests for bail
27 There is no dispute that, because JK is charged with assault with intent to commit a sexual act, bail must be refused unless I am satisfied that a compelling reason exists that justifies the grant of bail.^[6]
28 Further, if the compelling reason test is met, bail must still be refused if the prosecution satisfies me that there is an unacceptable risk that, if released on bail, JK would endanger the safety or welfare of any person, commit an offence, or interfere with a witness or otherwise obstruct the course of justice.^[7] If I am not so satisfied, bail must be granted.^[8]
29 In considering each of these statutory tests, I must take into account the relevant surrounding circumstances, which in this case include at least the following matters:^[9]

30 Further, in considering whether a risk of the kind alleged is an unacceptable risk, I must consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.^[10]
Family violence intervention orders in place
31 Since the charged events, LM and SR have obtained family violence intervention orders against JK. Among other things, the orders (which are of four years’ duration) prohibit JK from contacting LM or SR and from being within 200 metres of their premises. These orders were served on JK in custody on 27 May.^[11]
32 LM is so disturbed by her ordeal that she has moved away from her home to live with her other daughter VX (and VX’s husband SR) in another suburb. VX has taken LM back to her home to reintroduce her to her previous life at those premises, including by doing gardening, but almost immediately upon nightfall she wishes to return to VX’s home. She is “petrified” at the thought of JK being released on bail.
JK’s history, his progress in custody and his circumstances, if bailed
Introduction
33 Before the Court are three documents of particular relevance to JK’s past, his progress while in custody, and his prospects and circumstances were he to be released on bail.
Report of Dr Barth, psychologist
34 First, there is the report (dated 27 October 2022) of psychologist Dr Matthew Barth, who saw and assessed JK on 16 and 27 September.
35 Under the heading “Mental Health History”, Dr Barth’s report includes the following:^[12]
[32] [JK] described experiencing a range of symptoms during [the period following his wife’s death] which appear consistent with drug-induced psychosis. [JK] said that he began experiencing auditory hallucinations which involved the voice of his wife, his deceased brother-in-law and his other brother-in-law (who is alive). He told me that the voices of his two [brothers-in-law] “told me they were Satan” and the voice of his wife “would tell me not to listen to them”. He also reported paranoid ideations, specifically, the belief that “someone or something was out to kill me”. [JK] reported that his symptoms were particularly severe when he was heavily intoxicated with ice [i.e., methamphetamine] and when experiencing sleep deprivation. He described an incident where he “jumped through my window and ran away” due to his fears that someone was going to kill him.
[33] [JK] reported that, while the auditory hallucinations were distressing, he also felt comfort “when I heard her (his wife’s) voice, I felt like I could be close to her again”. He told me that, when he was sober, the auditory hallucinations and paranoid thoughts would dissipate.
[34] [JK’s] main treatment was with his general practitioner ... and there were also emergency presentations to the Austin Hospital and Royal Melbourne Hospital due to concerns about his behaviour. He was prescribed Olanzapine (an antipsychotic) and Diazepam (a benzodiazepine). [JK] said that his moods remained unstable up until he was charged with the current matter.
36 Towards the end of his report, Dr Barth expressed the following opinions:^[13]
[56] ... As a result of a comprehensive analysis of [JK’s] mental health, his substance abuse history and his risk of recidivism, the following conclusions were reached:
1) Psychological evaluation indicated that [JK] is experiencing ongoing symptoms of moderate emotional stress. This is underpinned by his guilt and shame for the nature of the charges against him and also his grief due to the death of his wife. Despite this, [JK’s] current symptoms have stabilised to a degree and are not sufficient to meet DSM-5-TR criteria for any mental disorder. Specifically, he is not suffering from an adjustment disorder, anxiety related disorder or mood disorder at this time.
2) [JK’s] thought processes were normal when I assessed him. He is not psychotic; his reality testing is intact and his moral judgement is unimpaired. [JK] is estimated to be a man of normal intelligence.
3) [JK] reported a severe substance abuse history following the death of his wife. He has suffered with a significant addiction to ice and a dependence on alcohol. [JK’s] history of substance abuse warrants a diagnosis of a “Stimulant-Use Disorder” by DSM-5-TR criteria and this disorder would have been specified as “Severe”. He would also have met criteria for an “Alcohol-Use Disorder” and this disorder would have been specified at the “Moderate” level. Provided [JK’s] current abstinence can be objectively verified, these conditions would be specified as “In Early Remission — In a Controlled Environment”.
4) [JK] was able to display an appreciation of the noxious impact of substance abuse on his behaviour and his life more generally. He expressed his motivation for sustained rehabilitation which is positive for his ultimate prognosis in the community. Nevertheless, when considering the severity of his previous addiction and the impact on his mental health and behaviour, ongoing treatment, supervision and support is clearly warranted to prevent a relapse.
5) A violence risk assessment utilising the HCR-20 V3 indicated that [JK] is likely to fall in the “Low-Moderate Risk” category. Participation in offence-specific treatment is required to reduce this risk. A comprehensive assessment of [JK’s] risk of sexual recidivism was completed by utilising the RSVP-V2. This assessment analysed historical, dynamic and protective factors germane to sexual offending. When evaluating the relevant risk factors, [JK] is assessed as currently posing a “Low-Moderate Risk” of sexual recidivism.
37 Dr Barth concluded his report in this way:^[14]
[57] [JK] expressed a strong desire to participate in any treatment required of him to avoid re-offending. While not attempting to minimise the gravity of the charges against [JK], should his substance abuse problems and psychotic symptoms be contained effectively, his risk of recidivism is likely to reduce. This assessment indicated that the following components are essential to any intervention offered to [JK]:
• Substance abuse treatment: Treatment should include a period of closely structured/supervised detoxification programme with regular urine screen testing to enforce prolonged abstinence. Advanced relapse prevention training should be included to allow [JK] to develop solid cognitive and behavioural strategies to achieve long-term abstinence from drug and alcohol abuse.
• Psychological treatment: [JK] requires grief-related counselling to assist him in processing the emotional impact of his wife’s death. Any mental health treatment should also focus on enhancing his limited coping skills and assisting with improving his general functioning.
• Psychiatric treatment: [JK] requires continued support from a psychiatrist. At a minimum, his medication should be monitored closely.
• Offence-specific treatment: Treatment should include a prominent focus on improving [JK’s] emotional awareness and insight into the manner in which his erratic behaviour developed in the context of his drug-induced psychosis. In particular, he should be encouraged to gain insight into the nature of his paranoid thoughts and auditory hallucinations and any propensity for violence. Treatment should also include a prominent focus on interventions which enhance his communication skills, as well as challenging his simplistic problem-solving strategies during emotionally challenging situations.
...
[59] I can confirm that this practice would be willing to assist in addressing [JK’s] rehabilitative needs. In particular, we could provide [JK] with the substance abuse treatment (with the exception of the drug urine testing which would need to be organised independently) and the offence-specific treatment as described above. Consistent with our policy, we would be pleased to do so in close collaboration with other agencies such (as the Department of Justice) and report any breaches by [JK] to the informant without delay.
CISP report
38 Next, JK was also assessed by CISP on 8 June and 15 November. In CISP’s most recent report (which is dated 15 November), JK is recommended for community referral “due to his confidence in his own ability to access supports within the community as well as continuing treatment received in custody”.
39 CISP contacted JK’s regular general practitioner and arranged an appointment for him at the surgery on 21 November. CISP encouraged JK to obtain from his doctor a mental health plan and further prescriptions for his medication.
40 Further, CISP encouraged JK to engage with a Men’s Behaviour Change Programme in his local area. CISP also referred him to a Men’s Referral Service, which, it is said, would assist him with family violence advice, support and counselling.
Support of and employment with local church
41 Finally, I received in evidence a short letter from a senior minister of a church in the local area in which JK would live, if bailed. This is said in the letter:
[The church is] happy to support and assist [JK] upon his release from incarceration.
[The church has] arranged for [JK] to undertake supervised voluntary work. [He] will assist with maintenance of the property, which will entail various trade works and gardening. He will be supervised by [the church’s] Property Warden. A parishioner has made the Property Warden and other ministers aware of JK’s circumstances.
There are many jobs that [JK] will be able to assist the [church] in completing that will see [him] kept busy each week, working over several days.
[He] will also be able to attend our Sunday church service and we hope to include him in ... mid-week Life Groups, which study the Bible together and support one another in Christian living.
Compelling reasons
JK’s submissions
42 Mr Chernok appears for JK. By way of background, counsel pointed out that JK and PQ were married on 18 May, which also happened to be JK’s birthday, and the date of the alleged offending. These factors placed yet another sad twist on the unusual circumstances in which the offences were said to be committed by the grief-stricken and disturbed JK.
43 Mr Chernok submitted that several matters combined to amount to compelling reasons justifying bail. In the circumstances of this case, it is sufficient to refer to just two of those matters in considering the compelling reason test.
44 First, in Mr Chernok’s submission, given the evidence showing that JK was in a psychotic state at the time of the alleged offending, he may well have a defence of mental impairment.^[15] Further, he submitted that, while the facts may seem clear, important matters going to the elements of the offences alleged may not be proved.
45 Second, Mr Chernok submitted that, even if JK were found guilty, given his psychotic state at the time of the charged conduct, and his personal circumstances (including an absence of prior convictions), the resulting prison sentence (if a prison sentence were imposed at all) would be exceeded by the period spent in custody awaiting a contested hearing, which, as we have seen, is expected to be about 12 months.
Police submissions
46 Mr Carr, who appears for the informant, submitted that a sentence exceeding 12 months’ imprisonment could be imposed. When I suggested that that might be so absent any evidence of psychosis, Mr Carr pointed to some of JK’s behaviour that suggested “moments of clarity”. He did not make any other submission on whether the defence of mental impairment might succeed or whether any of the elements of the offences charged might not be proved.
Consideration
47 While I expect that this will be a matter of psychiatric evidence at any contested hearing or plea in mitigation, experience in this Court tells that many who are psychotic often behave, in many respects, in quite clear and ordered ways, but their thought processes are such that they do not know that what they are doing is wrong or that their thinking is at least gravely compromised.
48 I have observed and listened to the CCTV footage. Having considered that material, LM’s account of the events and Dr Barth’s report, it seems plain that JK was psychotic at the time of the conduct constituting the alleged offending. Whatever level of psychosis he might have been suffering may well cause a magistrate to doubt that JK possessed the intent required for the offences charged, particularly any sexual intent. For this reason, he has arguable defences to the charges.
49 The level of psychosis JK was suffering may go further than that. In particular, it may well be so profound as to render it likely that one of the two ways of making out the first limb of the defence of mental impairment would be established — namely, that he did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong).^[16] If a magistrate finds an accused not guilty by reason of mental impairment of an indictable offence heard and determined summarily, the accused must be discharged.^[17]
50 An issue that is less clear at this stage, however, is whether a psychosis of that more profound order was caused by a mental illness such as schizophrenia or was induced by abuse of methamphetamines. On the state of the law in Victoria, the defence of mental impairment would succeed in the former case but fail in the latter.^[18] Dr Barth’s report suggests that JK’s psychosis was drug induced. Mr Chernok is instructed that JK’s solicitors are awaiting a report from a psychiatrist, which is expected to come in about three weeks.
51 Absent such a report, it is impossible to determine with any confidence whether JK has an arguable defence of mental impairment. The most that can be said is that at least one limb of that defence appears likely to be established. Nevertheless, that is a significant consideration in assessing the strength of the prosecution case.
52 What can be said with confidence at this juncture, however, is this. Even if found guilty at a summary hearing, it is inevitable that JK’s moral culpability would be classified as very low, or perhaps even non-existent, because of the psychosis under which he was so obviously labouring at the time of the charged conduct. Even if the psychosis were found to be drug-induced by recent methamphetamine use, this does not appear to be a case in which it could be said that JK was aware that taking that illicit drug would — or even could — cause him to behave violently or, less still, with sexual violence towards anyone, let alone his mother-in-law.^[19]
53 In those circumstances, it is very unlikely that he would be imprisoned, or, if he were, that the duration of any term of imprisonment would exceed the six months he has already spent in custody. Thus, the delay before a contested hearing is very likely to be such that, if JK is not bailed now, his period in custody would exceed any prison sentence imposed on him, were the charges proved against him. I am satisfied that this alone amounts to a compelling reason justifying bail.
54 In my view, the potential doubts I have identified about the strength of the prosecution case only add to the force of that conclusion.
Unacceptable risk
JK’s submissions
55 On the question of unacceptable risk, Mr Chernok accepted that it is the risk of family violence, combined with the mental health and substance abuse issues, that must be addressed.
56 He submitted that the risks asserted could be ameliorated sufficiently by imposing conditions directed at limiting JK’s movements (so as to ensure he stays away from LM and SR) while allowing him access to the assistance, monitoring and treatment he requires via CISP and Dr Barth, as well as to the work proposed with the church. Counsel placed reliance on the reports of CISP and Dr Barth. In his submission, the sentiments in those reports are consistent with his instructions that JK is now feeling quite hopeful about a positive future for himself, and that he has engaged in therapeutic supports in custody. Mr Chernok is also instructed that JK wishes to address his grief, his drug abuse and other problems in the ways recommended, and that he would accept any psychiatric referral.
57 The conditions proposed included that JK would:

Police submissions
58 Mr Carr submitted that, even if I found that compelling reasons exist justifying bail, it was open to find that JK presented an unacceptable risk of the kinds asserted.
59 In particular, Mr Carr pointed out that, while Dr Barth is able to provide treatment concerning psychological matters, substance abuse and offending behaviour, he is not able to provide urinalysis or psychiatric care or treatment. Further, the CISP report, Mr Carr submitted, seems to contemplate that JK will be relied on to organise quite a few things for himself. For example, for assistance with drug and alcohol issues, the report identifies a helpline for him to phone; and, for a mental health plan, he is to consult his GP. Thus, he is largely to be left to his own devices.
60 It was submitted that, instead of those arrangements, in order for any risk to be reduced to an acceptable level, I should give consideration to requiring that JK participate in a residential drug rehabilitation programme, including a programme of closely structured and supervised detoxification.
61 Mr Carr submitted that, were I minded to grant bail, any condition concerning treatment with Dr Barth should require JK to consult him within a given period and thereafter as directed. He accepted that the other conditions proposed would be appropriate.
Consideration
62 I have already observed that the offending behaviour alleged is serious but bizarre. But it is also disturbing. Given her ordeal, it is understandable that LM is reluctant to return to her home alone, and that she dreads JK’s release on bail.
63 But it must be remembered that JK has no prior convictions (other than for some drink-driving offences). And while his behaviour leading up to the charged conduct became increasingly odd, it seems that he was affected by a combination of extreme grief, excessive methamphetamine and alcohol consumption, and, perhaps, inadequate treatment for whatever the cause of his mental disturbance might be. Importantly, at the time Dr Barth assessed JK, his “thought processes were normal”, he was “not psychotic”, and “his reality testing [was] intact and his moral judgment [was] unimpaired”. Further, Dr Barth expressed the opinion that testing revealed that JH’s risk of recidivism for both violence and sexual offending was “low-moderate”.
64 JK has never been imprisoned before, and has now spent six months in custody on remand, with enforced abstinence from alcohol and methamphetamine. Further, I am persuaded that JK understands that he must not contact LM or SR, and that he is motivated to seek and take up the assistance and treatment proposed. In the latter regard, it is reassuring that Dr Barth observed that JK “was able to display an appreciation of the noxious impact of substance abuse on his behaviour and his life more generally”, and that “[he] expressed his motivation for sustained rehabilitation which is positive for his ultimate prognosis in the community”.
65 I am satisfied that, in those circumstances, the proposed conditions of bail, when adjusted to take into account a couple of Mr Carr’s thoughtful points, are sufficient to ameliorate the risks asserted to a level that is not unacceptable. I accept that it might have been preferable to have in place arrangements that, in some respects, involve more monitoring and direction from an agency or professional, rather than leaving JK to his own devices. But, in the end, I am persuaded that the conditions proposed, and those involved in the administration of some of those conditions (namely, CISP and Dr Barth), will ensure that JK will be subject to the strictures, and will receive the assistance, treatment and referrals, necessary to keep the risks at an acceptable level.
66 I should add that I understand that CISP routinely alert police to perceived breaches of bail. It will be remembered that, in his report, Dr Barth noted that his practice would “report any breaches by [JK] to the informant without delay”.
67 Finally, in my view, the question whether the asserted risks are unacceptable must be assessed against the consideration that, if JK is refused bail, it is very likely that the period spent in custody before a contested hearing would exceed any prison sentence imposed upon him (if prison were warranted at all), were the offences charged proved.^[20] When that assessment is made, it seems to me that it cannot be said that the risks asserted are unacceptable.
Conclusion and order
68 Accordingly, I am satisfied that the application for bail must be granted.
69 JK will be admitted to bail on his own undertaking with the following conditions:
a) JK is to reside at [redacted] (“the residence”);
b) JK is to follow any lawful direction of CISP;
c) Within a week of this order, JK is to consult psychologist Dr Matthew Barth for assessment and treatment and is to continue to consult Dr Barth and/or his nominee thereafter as considered necessary by Dr Barth and/or his nominee;
d) JK is to conduct urinalysis once per week and is to provide the results thereof to the informant (Detective Senior Constable Samantha Perez) or her nominee within 24 hours of receipt of the results;
e) JK is to be present at the residence between the hours of 10:00 p.m. and 6:00 a.m. (“the curfew hours”) and is to present himself at the door of the residence during the curfew hours, if requested to do so by a member of Victoria Police;
f) JK is not to enter the suburbs of [redacted] and [redacted];
g) JK is to report to [redacted] Police Station every Monday between 7:00 a.m. and 8:00 p.m.;
h) JK is not to contact witnesses for the prosecution except the informant or her nominee; and
i) JK is to appear at the Broadmeadows Magistrates’ Court for mention at 9:30 a.m. on 1 December 2022 and thereafter as directed by that court.
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^[1] The names of the applicant, the complainant and other members of their family, and various other details in this matter, have been anonymised, redacted or described in elliptical terms in these reasons because of the restrictions on reporting the identity of a complainant in respect of a sexual offence (see ss 3 and 4 of the Judicial Proceedings Reports Act 1958 (Vic)).

^[5] This is a revised and fuller version of the reasons I gave in open court when granting bail at the hearing on 17 November 2022.

^[6] See ss 4AA(3) and 4C and item 11 of Schedule 2 of the Bail Act 1977 (Vic).

^[7] See ss 4D and 4E of the Bail Act 1977 (Vic). There is no suggestion there is a risk that, if bailed, JK would fail to appear at court (see s 4E(1)(a)(iv)).

^[11] Section 166(2)(b) of Family Violence Protection Act 2008 (Vic) (“FVP Act”) limits the publication of information about proceedings under that Act, including any particulars likely to lead to the identification of any person involved in the proceeding or the subject of an order. While the prohibition might not be thought strictly to apply to matters this Court, its spirit has been observed by members of the Court for some time in other contexts (see, e.g., YY v ZZ [2013] VSC 743 at [5]- [14] (per Cavanough J)). On the other hand, as we have seen, s 3AAA(1) of the Bail Act 1977 (Vic) provides that, where a court must take into account the surrounding circumstances in considering bail, one of the relevant circumstances includes whether there is in force a family violence intervention order against the accused. Thus, it would seem to follow that, insofar as reasons are to be given publicly for a bail decision in this Court, the prohibition in s 166 of the FVP Act could not apply. In any event, in the circumstances of this case, I consider it necessary to publish the foregoing information concerning the family violence intervention orders even if it might otherwise be prohibited by s 166 in other circumstances. Further, there is even less difficulty in doing so when the names of those involved in the orders have been anonymised, as here.

^[15] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

^[16] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

^[17] See s 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

^[19] See and compare, e.g., R v Martin (2009) 20 VR 14 at 19[19]-20[21] (per Maxwell P, Nettle and Redlich JJA).

Supreme Court of Victoria

Re JK [2022] VSC 714 (21 November 2022)