APPLICATION FOR BAIL BY CHATTERS
[2017] VSC 2
•4 JANUARY 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0001
| IN THE MATTER of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an application for bail by ASHLEIGH-SUE CHATTERS |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 4 JANUARY 2017 |
DATE OF RULING: | 4 JANUARY 2017 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY CHATTERS |
MEDIUM NEUTRAL CITATION: | [2017] VSC 2 |
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CRIMINAL – Application for bail – Show cause situation – Charged with indictable offence while on bail – Whether an unacceptable risk – Intentionally or recklessly causing a bushfire – No direct evidence of the commission of the alleged offences – No prior related offences – No prior convictions in Victoria and limited convictions interstate – Relative youth of the accused – Availability of support and supervision from Community Mental Health Services – Availability of alternative stable accommodation – Availability of support and undertakings from Salvation Army – Bail Act 1977 (Vic), s 4(1), (2) and (4)(a) – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T McCulloch | Victoria Legal Aid |
| For the Respondent | Mr M Roper | Victoria Police |
HIS HONOUR:
A. Introduction
- The applicant, Ashleigh-Sue Chatters, is 23 years old and is presently on remand. She was arrested on 29 December 2016 and charged with 4 counts of intentionally causing a bushfire.[1] She was held at the Melbourne Custody Centre until the afternoon of 30 December 2016. Since that time she has been held at the Dame Phyllis Frost Centre. She applies for bail.
[1]According to the remand summary exhibited to the affidavit in support of the application, the 4 counts of intentionally causing a bushfire contrary to s 201A of the Crimes Act 1958 (Vic) relate to 2 incidents which occurred on 28 and 29 December 2016. The charge-sheet was not exhibited or otherwise tendered.
This is the first time that she has been held in custody. She has found the experience confronting and feels unsafe. It is not an experience she intends to revisit if she is granted bail.
B. Present charges
The present charges giving rise to the applicant being held on remand relate to 2 grass fires that occurred at 2 separate locations in Parkville on 28 and 29 December 2016.
The first of the fires occurred in grassland adjacent to the applicant’s then residence in Parkville. However, there is no evidence presently indicating that she was anywhere within the vicinity of the fire itself on 28 December 2016.
The second fire occurred along a bike path in Parkville between Flemington Bridge and Royal Park railway stations. A call was made to 000 at the time of the fire and the caller stated that a person with dark coloured clothing and a dark coloured backpack was in the area both before the fire and at the time the fire was burning.
Approximately 30 minutes later the applicant was arrested by police whilst standing 200 to 300 metres from the location of the fire. When first observed by police she was facing in the direction of the fire. She was the only person in the vicinity at the time. Police seized from her a cigarette lighter and 4 deodorant cans, together with an empty can of spray paint, as well as a mobile phone.
Upon being questioned by police, the applicant admitted that she had been in the area of the fire earlier on and that she had left some deodorant cans behind. But she said she had done so after she had been "chroming". She denied any involvement in lighting any fire. Presently there is no direct evidence that she did so.
The case against her with respect to both fires is entirely circumstantial. Although I express no view on the merits of the case as it might be ultimately presented at trial, on the present state of the evidence the case could not be properly described as a strong one. Further, there is nothing to suggest that the applicant has ever been involved in arson related offences previously.
The applicant has a number of outstanding charges which include: theft, marking graffiti on property without consent, being drunk in a public place, assaulting police and criminal damage. The applicant has also previously failed to answer bail.
C. Applicant’s evidence of relevant matters
The applicant has had a troubled background. The affidavit in support of her application sets out the detail. I do not propose to rehearse those matters here. They were not in issue. Self-evidently, given her background and her condition, her ongoing incarceration would be highly likely to have a deleterious effect on her mental well-being.
Specific factors relied upon by the applicant in support of her application for bail included:
(1) The availability of stable accommodation.
(2) The applicant's young age.
(3) The applicant's lack of prior conviction in Victoria and limited prior convictions interstate.
(4) The applicant has never before been held in custody.
(5) The availability of support and supervision from Community Mental Health Services.[2]
[2]The applicant submitted that other factors, including her identification as a person of Aboriginal heritage, might be relevant. No submissions were made concerning the applicability of s 3A of the Bail Act 1977 (Vic). In circumstances in which the factors identified in par 11 above supported the grant of bail in this case, it is unnecessary to further consider other potential factors in the applicant’s favour.
As to the issue of accommodation, the applicant's previous residence at Parkville was provided by the Salvation Army. It was initially proposed the applicant return to that address. It was also suggested on behalf of the applicant if bail were not granted the applicant might lose her place in the Salvation Army’s accommodation as it might be filled by others. The informant gave evidence of his concerns about the applicant being proximate to the location of the grass fires and said, if bail were granted, it should be on the condition that she not be allowed to reside permanently at the Parkville address.
Enquiries were made during the course of the day and the court was then informed that other Salvation Army accommodation would shortly be available, which the Salvation Army assured the court is safe and secure.
The court was informed that, although the accommodation provided by the Salvation Army is not strictly supervised, the relevant officers of the Salvation Army had indicated they are willing, and had given undertakings to the court, to inform police if they become aware that the applicant has absconded or failed to comply with curfew conditions of any bail order. Furthermore, the Salvation Army has agreed to increase her case-management meetings to every second day and to engage her in meaningful activities.
With respect to support and supervision, the applicant was, until her incarceration, being treated by the Waratah Clinic of Northwestern Mental Health affiliated with the Royal Melbourne Hospital. If she is granted bail her treatment will resume. However, in the past the applicant has not always fully cooperated with respect to her treatment. It is for this reason that it is proposed that the conditions of bail include a condition that the applicant obey the lawful directions of treating practitioners at the Waratah Clinic, or such other clinic nominated by the Waratah Clinic, and attend all appointments as directed.
In addition, attempts have been made for some months for the Department of Health and Human Services to put in place a justice plan.[3] Again, the applicant has not always assisted as she might in this regard. Accordingly, proposed conditions of bail included the following:
[3]See Sentencing Act 1991 (Vic), s 80.
(1) The applicant attend and participate in all necessary assessments with the Department of Health and Human Services, to determine suitability for a justice plan.
(2) The applicant, if assessed as eligible for services under the Disability Act 2006 (Vic), accept services and treatment, and obey lawful directions of workers for the Department of Health and Human Services.
The applicant is obviously in need of care, including for her mental health. In the past, this care has not always been administered as it might have been. In part, the fault of this lies with the applicant, who has not always acted in her best interests with respect to the help on offer.
D. Relevant provisions of the Bail Act
The applicant is presently in a show cause situation as it is alleged that she has committed indictable offences whilst awaiting trial for another indictable offence. In this circumstance, the court is required to refuse to grant bail unless the applicant shows cause why her detention in custody is not justified.[4]
[4]Bail Act 1977 (Vic), s 4(4)(a).
The balance to be struck in such an application between this requirement and the requirement in s 4(2)(d) of the Bail Act 1977 (Vic) that the court consider whether there is an “unacceptable risk”,[5] is the subject of competing authorities.[6] In this case, the application of either approach would produce the same result.
[5]Section 4(2)(d)(i) of the Bail Act requires the court to refuse bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail would:
[6]See Robinson v The Queen (2015) 47 VR 226, 234-236 [25]-[31] (Maxwell P, Redlich and Priest JJA).
E. Ruling
The applicant has now had the experience of a period of time in custody. This is a fundamentally different circumstance to the circumstances with which she has previously been confronted. Further, through the proposed conditions of bail proffered, the applicant has now demonstrated a willingness to receive the assistance that she clearly requires. Moreover, given the entirely circumstantial case of the present charges, coupled with each of the other factors referred to above and the strict conditions for bail referred to below, in my view the applicant does not presently represent an unacceptable risk and has shown cause as to why her ongoing detention is not justified as those terms are used in the Bail Act.
In the circumstances, the applicant will be released on bail on the following conditions:
(1)The applicant reside at [address], from 4 January 2017 to 6 January 2017, and thereafter at [address] (“Place of Residence”).
(2)The applicant report daily from 7 January 2017 to the Boroondara Police Station between 6 am and 9 pm.
(3)The applicant not leave the Place of Residence between 9 pm and 6 am.
(4)The applicant not carry or possess outside her Place of Residence, any fire-starting implements, including lighters, matches or aerosol cans, such cans (including spray paint cans).
(5)The applicant submit to a non-intimate search of her person or personal belongings at the request of any member of Victoria Police to check for any fire-starting implements.
(6)The applicant present at the front door of the Place of Residence during curfew hours at the request of a member of Victoria Police.
(7)The applicant obey all lawful directions of treating practitioners at the Waratah Clinic, or such other clinic nominated by Waratah Clinic, and attend all appointments as directed.
(8)The applicant forthwith provide to the informant a medical consent limited to the informant being informed by the relevant medical practitioner as to her attendance or non-attendance at scheduled medical appointments.
(9)The applicant attend and participate in all necessary assessments with the Department of Health and Human Services to determine suitability for a justice plan.
(10)The applicant, if assessed as eligible for services under the Disability Act 2006 (Vic), accept services and treatment and obey lawful directions of workers from the Department of Health and Human Services.
(11)The applicant not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
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Fail to surrender himself into custody in answer to his bail;
Commit an offence whilst on bail;
Endanger the safety or welfare of members of the public; or
Interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
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