Application for Bail by Ezzy

[2018] VSC 4

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0337

IN THE MATTER of the Bail Act 1977 (Vic)

and

IN THE MATTER of an Application for bail by Karen Ezzy

---

JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 January 2018
DATE OF RULING:	11 January 2018
CASE MAY BE CITED AS:	Application for Bail by Ezzy
MEDIUM NEUTRAL CITATION:	[2018] VSC 4

---

CRIMINAL LAW – Application for bail – Show cause – Applicant charged with indictable offences whilst on bail – Charges of burglary, theft, possession of methylamphetamine and breach of bail conditions – Whether unacceptable risk of failing to answer bail and committing further offences while on bail – Long standing drug addiction – Offer of place in residential rehabilitation program at Odyssey House – Bail Act 1977 (Vic), ss 3A, 4(2), (4)(a) and (d) – Bail granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Lowy	Law & Advocacy Centre for Women
For the Respondent	Mr C Gauld	Victoria Police

HIS HONOUR:

1. The applicant, Karen Ezzy, has been remanded in custody since 4 August 2017 and is currently held at the Dame Phyllis Frost Centre.

1. Ms Ezzy has been charged with 18 offences including theft, burglary, dealing with property suspected of being the proceeds of crime, committing indictable offences whilst on bail, failing to adhere to her bail conditions, and possession of methylamphetamine (Ice).  These offences are alleged to have been committed between July and August 2017.  Ms Ezzy also faces six further separate charges in relation to alleged offending between May and August 2017.  It appears she is either on bail or on summons in relation to those other matters.

1. On 4 August 2017, Ms Ezzy’s application for bail was refused by a Magistrate at the Frankston Magistrates’ Court.  Similar applications were refused on 13 September and 10 November 2017.

1. On 23 November 2017, all the charges, including the 18 subject to this bail application, were listed for further mention at the Frankston Magistrates’ Court.  Up until yesterday, it appeared that all the charges would proceed as a consolidated plea hearing on 17 January 2018.  But in Court, I was told by counsel for Ms Ezzy that whilst there might be a plea to a couple of the other charges, the 18 subject to this bail application will now be contested and a further adjournment of this matter for a contest mention at the Frankston Magistrates’ Court is now being sought.  Further, counsel advised that a request has been made (or would be made) of the police to supply further material relating to Ms Ezzy’s alleged offending, including DNA evidence.

1. It is acknowledged by the informant, Mr O’Dwyer, that Ms Ezzy was, when at large, a regular user of ice.

1. The central question on this application is whether Ms Ezzy should be granted bail on the basis that she be immediately admitted to Odyssey House as a resident and undertake its Therapeutic Community Residential Rehabilitation program.

1. Ms Ezzy seeks bail on the condition that she resides at Odyssey House and undertakes that program.

1. The police opposed bail on the basis that Ms Ezzy has failed to show cause pursuant to s 4(4)(a) of the Bail Act 1977 (Vic), and is an unacceptable risk of committing further offences whilst on bail and of failing to surrender herself into custody in answer to bail.

Background—in precis

1. Ms Ezzy is now 39 years of age.  The affidavit filed on her behalf by her solicitor, Ms Jillian Prior, said the following:

30.The applicant instructs that she is the mother to 8 children aged between 21 years of age and 2 years of age.  She does not have care of any of her children but instructs that there are orders prohibiting her contact with them.

31.The applicant describes a lengthy history of trauma with prolonged incidents of family violence over 16 years and significant physical and psychological abuse with both of her most significant long-term relationships.  She instructs the report of severe physical abuse to police in South Australia and New South Wales.

32.The applicant also reports historical and repeat trauma as a victim of sexual abuse.  During the period of remand the applicant has engaged in counselling through WestCasa for treatment to address effects of sexual abuse.  She was scheduled for her first appointment on 12 December 2017.

33.Throughout her life the applicant has sought to self-medicate in relation to her trauma and has used illicit substances, in particular cannabis, ‘ice’, and ‘speed’.

34.Since she has been remanded in custody the applicant has participated in numerous courses to assist in her rehabilitation.

35.The applicant instructs that her most recent relationship has been a healthy one and reports it is free from family violence.  She instructs that the relationship brings a large extended and supportive family that welcome her.  She instructs that she seeks suitable treatment in order for long-term reunification with her children.

Criminal history

1. Although there are some Children’s Court matters going back a considerable time, Ms Ezzy’s criminal record, in effect, commences in 2012 with consistent offending in New South Wales, and in Victoria from 2014.

1. She has been convicted on a number of occasions of dishonesty and house breaking offences, culminating in imprisonment in New South Wales in July 2015 for 12 months with a 6-month non-parole period.  She was released after serving 6 months and is now in breach of her parole.  If and when she returns to New South Wales, she is liable to be imprisoned for 2 months and 26 days.

1. Ms Ezzy also has a prior conviction in Victoria, in September 2016, for failing to answer bail.

The current charges

1. I have set out in general terms the nature of the charges faced by Ms Ezzy.  Whilst none of the counts involve personal violence towards victims, there are numerous allegations of theft and burglaries of a relatively minor to moderate nature between July and August 2017.  It is also to be noted that, with at least one of the charges, it would appear that Ms Ezzy was perceived to be affected by the ingestion of drugs.

1. The other matters of relevance are that, on 4 July 2017, Ms Ezzy was bailed for burglary and theft charges, with reporting conditions.  She subsequently failed to report from 19 July 2017 and, according to the informant, admitted that she had not resided at the residence specified in the bail conditions.

1. It is apparent, at least from the police material, disclosed in the affidavit of Patrick McCarthy, that a number of the crimes alleged to have been committed by Ms Ezzy have been committed in company with males with whom she has a relationship, and who also have drug and criminal histories.

Consideration

1. Ms Ezzy is required to show cause pursuant to s 4(4)(a) and (d) of the Bail Act.

1. The question to be resolved is whether Ms Ezzy has demonstrated that she is not an unacceptable risk if granted bail on the condition that she reside at Odyssey House.

1. I accept that there are grounds upon which to conclude that Ms Ezzy does present an unacceptable risk.  In brief, they are as follows:

(a)   Her recent past history demonstrates that she will not necessarily comply with orders of the Court, as particularly demonstrated by her alleged breaches of  bail conditions.

(b)   It is alleged that, in recent times, she has committed offences whilst on bail.  She also has a conviction for failing to answer bail.

(c)    It is said that there is a degree of opacity in relation to the conditions of the Odyssey House admission, as reflected in a letter from Ms O’Connell, the alcohol and drug therapist, of 4 January 2018.[1]  In particular, the assessment process, how the program will be conducted, its duration, and the level of supervision outside Odyssey House are not addressed in that letter.  Counsel for Victoria Police sensibly did not insist upon the presence of Ms O’Connell, but made it clear that it placed him at some disadvantage in terms of addressing the issue of the Odyssey House program.  I accept that this goes to the weight to be attributed to the statements contained in Ms O’Connell’s letter.

(d)  In summary, it was said that notwithstanding any condition imposed on Ms Ezzy to reside at Odyssey House and complete the rehabilitation program, there is an unacceptable risk that Ms Ezzy would abscond whilst on bail and commit offences whilst the police endeavour to return her to custody.

[1]Exhibit KE-2.

1. Notwithstanding the force of these considerations, it seems to me that the acceptability of the risk is minimised (but of course, not eliminated) by Ms Ezzy being removed from a drug culture (as she has been whilst at the Dame Phyllis Frost Centre), and that a rehabilitation institution such as Odyssey House provides a real chance not only for prospective rehabilitation, but also of minimising the risk of her offending or breaching her bail conditions.  This is because, as the police brief makes clear, her offending is almost entirely associated or motivated by her drug addiction.  It is highly likely that, to supplement her income from Centrelink payments, she is involves herself in criminal activity which provides the additional funds for the purchase of ice.  Added to this, she has been in the company of other ice users—who have been involved in a number of the alleged offences.

1. Once it is understood (as I think emerges clearly from the material) that the centre point of her problem is her ice addiction, the fact that she has been drug abstinent since her incarceration in August 2017 and will be able to continue her rehabilitation if admitted to Odyssey House, places the risk of re-offending at a far lower level than it would have been in August of last year.

1. It is particularly significant, it seems to me, that this mini crime wave over the past two years appears to be bound up with her addiction.  If her addiction can be managed and addressed - and one would hope that the Odyssey House program would assist with this - then there has to be a genuine prospect that she will avoid the criminal justice system—with which she is now well associated in two States.

1. Next, it seems that Ms Ezzy has endeavoured, whilst in custody, to improve her lot in life.  She has engaged in rehabilitation programs and has worked in the kitchen.  The report of her case manager, Ms Lawrie, of the Law & Advocacy Centre for Women, notes that ‘Ms Ezzy has also engaged in drug and alcohol support while at DPFC and has completed the 12 hour ice program’.  This is in addition to completing a number of certificates whilst in custody.

1. Ms Lawrie concludes that ‘Ms Ezzy presents as highly motivated to use any supports available to her to encourage desistance from interaction with the criminal justice system; and is keen to work towards improving her future and living a positive and healthy life’.  Whilst such an opinion may be given through rose-tinted glasses, it is clear that Ms Ezzy has taken positive steps to rehabilitate herself and desist from ice consumption.

1. This case, therefore, can be distinguished from that considered by John Dixon J in Stankovski,[2] where his Honour was not convinced that a rehabilitation program demonstrated that the relevant risk would be ameliorated.  In this case, I form the opposite view because of the factors I have mentioned.

   [2][2016] VSC 310.

1. I have allocated little weight to s 3A of the Bail Act which requires the Court to take into account any issues that arise due to the applicant’s Aboriginality, including cultural background, ties to extended family or place, and any other cultural issue or obligation.  Ms Ezzy is of Aboriginal descent, but there is no evidence of any real bond with an indigenous community or her heritage.  I do note, however, that whilst in custody she has undertaken several courses related to indigenous culture.

1. Finally, the proposed conditions of bail mean that Ms Ezzy would not be in the community at large whilst undertaking rehabilitation.  This minimises the risk of Ms Ezzy reoffending, although I accept that there is always the prospect that she may abscond.  If that were to occur, I am confident that she well understands that any future prospect of bail or leniency on sentence will evaporate.

1. So, in summary, I am persuaded that Ms Ezzy should be granted bail on the condition that she reside at Odyssey House and undertake its Therapeutic Community Residential Rehabilitation program.