Application for Bail by CL
[2022] VSC 151
•24 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0068
| IN THE MATTER of the Bail Act 1977 | |
| - and - | |
| IN THE MATTER of an application for bail by CL | Applicant |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 March 2022 |
DATE OF JUDGMENT: | 24 March 2022 |
CASE MAY BE CITED AS: | Application for Bail by CL |
MEDIUM NEUTRAL CITATION: | [2022] VSC 151 |
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CRIMINAL LAW – Bail – Applicant charged with burglary and theft of firearms – Applicant identifies as Aboriginal – Compelling reason established – Unacceptable risk not established– Bail granted with stringent conditions – Bail Act 1977 ss 3AAA, 3A, 4AA, 4C, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Linh Cao (Solicitor Advocate) | Law and Advocacy Centre for Women |
| For the Respondent | Mr Nick Goodenough | Office of Public Prosecutions |
HER HONOUR:
It is alleged that on 1 December 2021 the applicant and co-accused, JR, entered private property in Mortlake and removed a gun-safe containing three firearms located in a large shed at the rear of the property. After a police investigation the applicant and her co-accused were arrested on 4 January 2022. The applicant was remanded on the following charges (‘the Informant Blake charges’):
(a) Burglary (intent to steal) pursuant to s 76(1) of the Crimes Act 1958 (Vic);
(b) Theft of firearms (x3) pursuant to s 74AA of the Crimes Act 1958 (Vic);
(c) Theft of a gun safe pursuant to s 74 of the Crimes Act 1958 (Vic);
(d) Commit an indictable offence while on bail pursuant to s 30B of the Bail Act 1977(Vic).
Bail was refused at the Warrnambool Magistrates’ Court on 5 January 2022 and the applicant has remained in custody since. As at the date of the hearing of this application, she will have spent 79 days in custody. The applicant is a 41 year old Aboriginal woman of the Yorta Yorta and Wamba Wamba tribe on her maternal side. Prior to her arrest she was in a two year relationship with her co-accused.
The applicant has several other outstanding matters for which she is on bail. The first relates to an incident on 12 March 2020 in which it is alleged the applicant attempted to steal a vacuum cleaner from Kmart (‘the Informant Malikoff charge’).[1]
[1]Charged with attempted theft pursuant to s 321M of the Crimes Act 1958 (Vic).
The second set of charges (‘the Informant Hunter charges’) involve two separate incidents being:
(a) On 27 February 2020 the applicant is alleged to have stolen two bottles of bio oil skin care from a Chemist Warehouse in Warrnambool.[2] At the oral hearing Ms Cao, for the applicant, told the Court the applicant had taken the bottles for treatment of scarring which was the result of surgery she had undergone for throat cancer.
(b) On 22 March 2020 at 1:27am the applicant was intercepted by police in Warrnambool and is alleged to have been driving an unregistered vehicle and driving whilst disqualified.
[2]Theft pursuant to s 74 of the Crimes Act 1958 (Vic).
At the time of the alleged offending the applicant was on an 18 month Community Corrections Order (‘CCO’) which commenced on 16 December 2019. She was subsequently charged with contravening that order (‘the Informant Lamplough charge’).[3]
[3]Pursuant to s 3AD of the Sentencing Act 1991 (Vic).
The applicant’s criminal history includes a significant number of prior convictions for dishonesty, drug related and driving offences.
The applicant’s co-accused is charged with the same charges as the applicant, along with further charges of burglary and theft alleged to have occurred on 26 November 2021.[4] He has an extensive criminal history and also currently on remand for this matter.
[4]See Affidavit in response [13].
Theft of the gun-safe
Police rely on CCTV footage which was taken from a neighbouring property. They allege the man seen in the footage is JR and the woman in the footage is the applicant. The following events are captured on CCTV:
(a) On 30 November 2021 at 11:20pm a man is kneeling in front of and looking at the mail box of the property from where the gun safe was stolen.
(b) On 1 December 2021 at 1:07am a man is wearing a jumper with a large Nike tick on the rear. He is shown walking out of the shed and opening the side gate.
(c) A white Subaru parks on the street nearby.
(d) The man and a woman enter through the side gate and enter the shed. They later walk out with the gun safe and walk to the street. The man waits with the safe while the woman runs back to get the car.
(e) Shortly after this a white Subaru, alleged to be driven by the applicant, arrives to pick up the man and the safe.
In addition to the CCTV footage, phone records indicate the applicant and co-accused were at the scene of the burglary at the relevant times on 1 December 2021. Police investigations also revealed the co-accused JR is the owner of a white 2007 Subaru wagon with registration WDE144.
On 4 January 2022 investigators executed a search warrant at JR’s address. The applicant was in the hallway of the premises while JR was seen leaving via a bedroom window and jumping multiple fences before he was apprehended.
The applicant made a partial ‘no comment’ interview however, she stated she thought it was a filing cabinet and did not realise there were firearms in the safe.
Personal History of the Applicant
The applicant’s personal history was provided to the court via a 6 page psychological assessment prepared by Psychologist Warren Simmons and dated 4 December 2019.
The applicant was born in Hornsby, New South Wales and lived in various parts of Sydney until the age of eight. She reports only meeting her biological father once. The applicant’s mother had an on again off again relationship with a man named Brian with whom she had four further children. Both her mother and Brian were drinkers and the applicant witnessed a great deal of verbal and physical violence. The applicant says she felt she had responsibility for her siblings as their carer and that it was her job to keep them safe and call the police or the ambulance if Brian was being abusive. When she was eight years old Brian went to prison. She reports that her mother was asleep or drinking a lot at the time and the applicant was hardly ever going to school. At about this point the Department of Health and Human Services became involved and she went to live with her maternal grandmother for a period. The applicant noted that her grandmother had also lost custody of her own children when she was younger including the applicant’s mother.
The applicant moved to Mildura and by the age of 17 was living in Warrnambool. She reports that she did not really have a childhood and that between the age of eight and sixteen years old she and her siblings were in about five or six foster homes, including some group homes. She missed a lot of school due to frequent moves and looking after her younger siblings. She did well when she was at school and reported no problems with teachers, particularly during the periods when she was in a more stable foster home environment. However, when the home environment was not stable and she was unhappy she would sometimes fight with other pupils who called her ‘a foster kid.’
At 13, when her foster parents relationship broke down, she started drinking alcohol and commenced a relationship with a boy who was two or three years older than her. From this relationship she had a son, C, who is now 26 years old and lives in Mildura with his partner. Shortly after she gave birth to C she gave birth to a daughter, JL.
JL is currently 25 years old. When she was 17 she met James[5] with whom she had two further children (currently 22 and 20 years old). She described her relationship with James as “rocky” and revealed that he was physically, verbally and sexually abusive until he was incarcerated about 8 or 9 years ago. It is not clear when that relationship ended. She was living with the co-accused at the time of the incident founding the current charges and they had been involved with one another for about two years.
[5]A pseudonym.
The applicant’s mother died in 2007 at the age of 43.
The applicant was diagnosed with throat cancer whilst serving a term of imprisonment in 2019. After she was released from prison in December 2019, she had a lump removed from her throat at St Vincent’s Hospital. In June 2020 she received radiation therapy and she has been required to attend every six months for a scan to see whether the cancer has returned.
The applicant’s uncle has recently passed away and at the time of the written application for bail the funeral was scheduled to be held on 25 March 2022, being one day after the date of this application. It was the applicant’s wish to attend Sorry Business with her family. On 24 March 2022 the Court was notified by the applicant’s solicitor that the funeral was to be rescheduled with a new date to be confirmed.
Drug and Alcohol History
In his 2019 report Mr Simmons also provided a detailed history of the applicant’s drug and alcohol use as follows:
The consumption of alcohol commenced at the age of 13 with older peers, adding that she was mixing with a large circle of friends. [CL] indicated that initially she was drinking on a weekly basis, although it eventually increased to every other day and she would become intoxicated. When asked about what attracted her to alcohol, she said that it made the world a better place, she was happy and she could "leave her shit behind". [CL] indicated that alcohol consumption continued until she met [REDACTED], revealing that he introduced her to cannabis. She explained that it relaxed her and she felt less stressed, explaining that she does not like who she is when she is "straight". It increased to daily after two weeks and peaked at about two grams a day in a consistent manner until 2014. She decided to give it up as JL was pregnant and did not want drugs around her.
[CL] however was drinking again when in a tough patch, adding that she was having cans of premixed spirits for a period of four to five years. She did attend a community residential drug withdrawal program in 2014 at [REDACTED] and was abstinent for a month.
After leaving Dwayne, [CL] met Jason who was smoking cannabis daily. However, she met some individuals who introduced her to both amphetamines and heroin. She had a preference for amphetamines and used the drug when going night clubbing, stating that she had heroin for a period of three to four days when she didn't have custody of the children.
[CL] indicated that she became dependent and used the drug regularly for three or four months, using morphine tablets if she was unable to obtain heroin. She subsequently attended a local doctor who commenced her on Buprenorphine at the age of 18.
However, [CL] revealed that she continued the use of amphetamines, although this later changed to methamphetamines which has continued until the present time. It peaked at about two grams a day, commencing just before she attended [REDACTED],
[CL] denied any other substance use. She has shared needles in the past, but only injected into her arms. [CL] reported undertaking counselling in the past, usually as a condition of an order of some type. She has initiated treatment of own initiative on two occasions, once early last year. [CL] does believe that counselling helps.
The applicant has a criminal history that includes a substantial number of prior convictions for dishonesty, drug related and driving offences. It is noted that in the last five years the applicant was:
(a) sentenced to 208 days’ imprisonment and an 18 month CCO for a consolidation of driving, property, bail and drug offences in December 2019;
(b) sentenced to 14 days’ imprisonment for four counts of obtain property by deception in April 2018; and
(c) sentenced to 13 months’ imprisonment for a consolidation of property, dishonesty, bail, driving and drug offences in January 2018.
Applicable Law
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Bail Act 1977 (‘the Act’).[6]
[6]The Act, s 1B(2).
Pursuant to s 3A of the Act, the Court must take into account any issues that arise due to the applicant’s Aboriginality, including cultural background and any other relevant cultural issues or obligation.
Step 1 – compelling reason
The applicant is required to show a compelling reason that justifies a grant of bail pursuant to s 4AA(3) of the Act, as she is accused of a Schedule 2 offence.[7] It follows that bail must be refused unless the Court is satisfied by the applicant that a compelling reason exists that justifies the grant of bail.[8] In considering whether a compelling reason exists the Court is obliged to take into account all of the relevant surrounding circumstances including, but not limited to, those set out in s 3AAA of the Act.[9]
[7]Namely an indictable offence whilst on bail for another indictable offence (sch 2, item 1(a)) and an offence against the Act (sch 2, item 30).
[8]The Act, ss 4AA(3), 4C(1A)-(2).
[9]Ibid s 4C(3).
Step 2 – unacceptable risk
If satisfied that a compelling reason exists that justifies the grant of bail, the Court must then apply the unacceptable risk test.[10] Bail must be refused if the respondent satisfies the Court that, if released on bail, the applicant poses a risk of engaging in any of the conduct outlined in s 4E(1)(a) of the Act, and that such a risk is unacceptable.[11] In determining whether a risk is unacceptable the Court must again take into account the surrounding circumstances and consider whether any conditions of bail may be imposed to mitigate the risk so that it is not unacceptable.[12]
[10]Ibid ss 4C(4), 4D(1)(b).
[11]Ibid ss 4D(2), 4E(2).
[12]Ibid s 4E(3).
Applicant’s Submissions
The applicant conceded that any offences involving firearms are serious in nature and that it was of concern that the whereabouts of the firearms remain unknown. It was also acknowledged the applicant was on bail for two matters at the time of the alleged offending and that she has previously been found to have committed indictable offences whilst on bail.
The applicant made the following submissions in favour of granting bail:
(a) the applicant was released in December 2019 and between the March 2020 matters and the current charges she had been in the community for a lengthy period without offending.
(b) the applicant has had an impoverished and unstable childhood and suffered abuse at the hands of her partner during her early adult years. She has struggled with alcohol and substance abuse which, it was submitted, has largely been responsible for driving her criminal behaviour.
(c) the Court must take into account the factors set out in s 3A of the Act regarding vulnerability arising from the applicant’s Aboriginality. The applicant and her family have experienced intergenerational trauma as the result of the applicant having been part of the Stolen Generation. It is noted the applicant’s mother, the applicant, the applicant’s children and the applicant’s grand children have been subject to periods of time in foster care. The applicant continues to maintain connection to her culture and has been accessing cultural based services through [REDACTED]. If the applicant’s matters resolve, she would apply to proceed through Koori Court to enable her to access the benefits of the Koori sentencing process.
(d) The applicant’s uncle has recently passed away. Were the applicant granted bail she would attend Sorry Business to say goodbye with her family in Mildura. The Court must take into account the applicant’s cultural background and the importance of maintaining ties to her extended family.
(e) The applicant’s comments during the record of interview indicate she played a lesser role in the offending. This is further supported by the comments made by her co-accused during his record of interview which indicate the applicant did not know there were guns in the safe.
(f) The applicant submitted that despite the serious nature of the charges which would ordinarily result in a custodial sentence, were the matter to resolve in a way which was consistent with the applicant’s comments in her record of interview it would be open to the Court to consider a non-custodial sentence, (noting that the principles in Bugmy v the Queen [2013] HCA 37 which would be raised at the plea hearing).
(g) The applicant has been connected to the ACSO ReStart program, which she will continue to access if released on bail. The program could assist her to obtain mental health support, and other transitional needs over a three month period.[13]
(h) The applicant has the offer of stable accommodation and family support. It is proposed that she reside with her daughter [JL] in [REDACTED], where it is said that she has ties to the jurisdiction.
(i) It is submitted that any unacceptable risk alleged by the respondent can be moderated to an acceptable level by the imposition of conditions of bail, including as to residence, reporting, not to associate with the co-accused, not to leave the state of Victoria and curfew.
[13]See Exhibit MC-6 to Affidavit in support for copy of letter of [REDACTED].
Respondent’s submissions
Although the respondent did not strongly press a submission that compelling reasons could not be shown in this case, the issue of unacceptable risk of re-offending was pressed. The respondent submitted the applicant has an extensive criminal history, including numerous findings of guilt for bail offences. Moreover, the applicant was subject to bail at the time of the alleged offending, and has a significant history of failing to answer bail and committing indictable offences whilst on bail.[14]
[14]At the oral hearing counsel for the Respondent, Mr Goodenough, submitted that the applicant had failed to answer bail on 27 occasions. However, under further examination Mr Goodenough conceded that this was likely to be an error because many of the convictions for bail offences repeated themselves due to the applicant re-appearing in respect of the same when further action was required regarding her community corrections order.
The respondent also relied on a risk of the applicant:
(a) Interfering with a witness or otherwise obstructing the course of justice – as the firearms are still outstanding, the respondent is of the view that there is a risk that the evidence will be tampered with if the applicant is granted bail.
(b) Failing to surrender into custody in accordance with the conditions of bail – the respondent submits that the applicant’s criminal history is indicative of her risk of failing to surrender into custody in accordance with bail.
Analysis
I have closely considered all the oral submissions and documentary material in this matter, including the record of interviews of both this applicant and the co-accused, [JR]. Whilst mindful of the serious nature of the Blake charges, it does appear that this particular applicant had a significantly lesser role in the matter and that there is potentially an open question about her level of knowledge of the contents of the safe.
As such, there is an open question about whether, if she were sentenced for that matter in light of the significant personal challenges she has been facing in recent years, coupled with the factors in her personal history that give rise to potential Bugmy and Verdins mitigation, whether she would ultimately be sentenced to a term of imprisonment that could be less than further time spent on remand. This is especially so given that she has already spent a period of 79 days in custody in relation to the Blake matters.
In considering whether compelling reasons are shown in this case I note that as well as having served a lengthy period of imprisonment from which she was released at the end of 2019, the applicant was then placed on a CCO and that during the period of that CCO, she faced the challenge of her ongoing treatment for throat cancer, as well as difficulties encountered in the COVID-19 environment.
Notwithstanding all of those matters, the CCO report does indicate that efforts were made by the applicant to comply with the rehabilitation which was offered to her. I note that despite those efforts, probably partly due to the COVID environment, she was unable to get the assistance that she might otherwise have received. If she were at liberty at this point in time, she would be in a better position to pursue that kind of rehabilitation than was the case in 2020. I also note that she has been offence-free since the March 2020 offences and that the Hunter and Malikoff charges are of a different and less serious nature.
She has the offer of a stable residence with her daughter, who was present in Court on the day of the hearing, combined with the offer of reintegration through the ACSO facilitated ReStart Program, the support of the [REDACTED] community and that of her own GP, who prescribes her methadone and has knowledge of the applicant going back some time. I also note that the considerations set out in s 3A are very significant to this particular application, given the intergenerational issues that have afflicted the family in this case and the importance of a stable family home for the applicant. All of these factors, combined with condition that she not be in contact with [JR], mean that compelling reasons are shown.
Regarding the issue of unacceptable risk, I am not satisfied the applicant is an unacceptable risk of committing offences on bail or of the other matters referred to in s 4E(1) of the Bail Act, provided that very strict bail conditions are put in place. In support of this conclusion I note that the applicant’s daughter has been good enough to attend Court to support her mother in this application and has indicated, through her mother’s solicitor, Ms Cao, that she would accompany her mother to the upcoming Sorry Business for the applicant's uncle. She would also accompany her mother if her mother needed to go to Warrnambool for medical appointments.
It does appear that given the applicant’s health circumstances, and her age and stage of life, that she may be at something of a crossroads and that a stable home, stable medical treatment and stable drug and alcohol counselling would assist her in having a more structured lifestyle and in avoiding further offending.
I am cognisant of the fact that the applicant indicated to police, when she was arrested for the current offences, that she had been trying hard to remain offence free. This position is supported by the fact that there has been no evidence of offending between March 2020 and December 2021 and is further supported by comments contained within the community corrections report. I note that there was a level of cooperation with the police when she was arrested in relation to the Blake charges.
From the materials before me it would appear that the applicant has some insight into the need for support and treatment, including drug and alcohol treatment, remaining on her methadone program for the time being, and pursuing the assistance of the [REDACTED] community as well.
Taking all those matters into account with the kinds of bail conditions that have been foreshadowed, I have concluded that there is not unacceptable risk in this case and bail will be granted.
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