APPLICATION FOR BAIL BY JAYDON REYNOLDS
[2016] VSC 730
•6 DECEMBER 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0170
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by JAYDON REYNOLDS
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 29, 30 NOVEMBER, 6 DECEMBER 2016 |
DATE OF RULING: | 6 DECEMBER 2016 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY JAYDON REYNOLDS |
MEDIUM NEUTRAL CITATION: | [2016] VSC 730 |
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CRIMINAL LAW – Bail – Multiple charges –Whether exceptional circumstances – Whether unacceptable risk – Delay –Availability of residential rehabilitation facility – Bail granted with strict conditions – Bail Act 1977 (Vic), s 4(1) and (2).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B Johnston | Balmer & Associates |
| For the Respondent | Mr B Nibbs | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
The applicant, Jaydon Reynolds, is 21 years old.[1]
[1]The applicant was born on 22 January 1995.
He was arrested and remanded in custody on 23 March 2016, having been charged with the following offences:
(1) 1 count of trafficking in a drug of dependence (commercial quantity) pursuant to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(2) 4 counts of trafficking in a drug of dependence pursuant to s 71AC of the Drugs, Poisons and Controlled Substances Act.
(3) 1 count of dealing with proceeds of crime while being negligent as to whether or not it is proceeds of crime pursuant to s 194(4) of the Crimes Act 1958 (Vic).
(4) 1 count of being a prohibited person in possession of a firearm pursuant to s 5(1) of the Firearms Act 1996 (Vic).
The applicant has applied to this court for bail. Section 4(2)(aa)(i) of the Bail Act 1977 (Vic) provides that the court must refuse bail where a person is charged with an offence under s 71AA of the Drugs, Poisons and Controlled Substances Act, unless the court is satisfied that exceptional circumstances exist which justify the grant of bail. Section 4(2)(d) of the Bail Act further provides that bail must be refused where there is an “unacceptable risk”.
For the reasons that follow, bail will be granted on strict conditions.
B. Procedural history
On 11 May 2016, the applicant made an application for bail. That application was refused on 16 May 2016. The magistrate was not satisfied that exceptional circumstances had been shown and, further, held that the applicant was an unacceptable risk of committing further offences whilst on bail.
On 10 June 2016, the prosecution served the hand-up brief. The brief did not contain transcribed telephone intercepts relied upon by the prosecution. The applicant’s solicitors were advised there would be delay in the material being provided due to the number of telephone intercepts that needed to be transcribed.
The applicant made a second application for bail on 14 July 2016. Additional factors in that application included the further delay and the availability of a bed for the applicant at a residential rehabilitation facility, Destiny Transformations in Hoppers Crossing. The applicant was assessed for the purposes of this rehabilitation. That caused some delay with the bail application, which was ultimately heard on 5 September 2016.
On 8 September 2016, bail was again refused, the magistrate not being satisfied that the availability of residential rehabilitation met the exceptional circumstances test. The magistrate also found that the applicant was an unacceptable risk of reoffending.
At the time of the application, the applicant was remanded in custody until a contested committal hearing scheduled for 6 March 2017. It is expected a trial date for the hearing of the applicant’s charges will be set after that hearing.
C. The present application
In support of the application for bail, counsel for the applicant relied on a combination of factors, which were said to be exceptional circumstances justifying the grant of bail. Those factors included delay, the applicant’s age, the availability of a bed at Odyssey House (an inpatient-residential rehabilitation facility) and the willingness of applicant’s mother to provide a surety of $100,000.
Availability of inpatient rehabilitation facility
The applicant has had a troubled childhood. His parents separated when he was 3 years old. He was diagnosed with attention deficit disorder at an early age and was prescribed methylphenidate (also known as “Ritalin”) to address his behavioural problems.
Although the exact timing is not clear, during his teenage years the applicant developed an addiction to drugs, including methamphetamine, amphetamine and prescription medication. He was admitted to a psychiatric unit at Box Hill Hospital on at least 3 occasions; 2 of these following the use of “ice” or “speed”, the other following an overdose of prescription medication.
The applicant has now spent 8 months in custody since his most recent arrest. In that time he has completed a number of courses and programs, details of which were before the court. He is also currently prescribed Avanza to manage his anxiety.
According to the affidavit in support of the application sworn by the applicant’s solicitor, during his incarceration he has had time to reflect on his situation. The applicant has had regular contact with his partner and his mother. He has conveyed to them his determination to undergo rehabilitation. Both of them, along with other family members, remain supportive of the applicant.
The applicant’s mother also gave evidence in support of the application. Her affidavit set out the applicant’s troubled background, the detail of which is not necessary to record. Since the applicant’s arrest in March this year the applicant’s mother has regularly attended Port Phillip Prison and spoken to him by telephone.
According to his mother, since being on remand the applicant has spoken about his goals for the future, including “getting clean”, obtaining a university degree, having a good job, and making his family proud. He has apologised repeatedly to his mother and his partner for the anguish he has caused. He has expressed the desire to acknowledge his substance abuse problems and his commitment to engage in a residential rehabilitation program. They have discussed at length the prospect of rehabilitation to address his substance abuse problems.
A bed is no longer available at Destiny Transformations for the applicant. However, more recently, a bed has become available at Odyssey House, where the applicant would be admitted as an inpatient in the event that bail were granted.
As an inpatient at Odyssey House, the applicant would be:
(1) Physically sighted every 2 hours and marked off the role from 7 am until bed time, which is between 11 pm and 12 am. If a resident is not sighted at 1 of these checks, a complete search of the grounds is done and if they cannot be found, Odyssey House would notify the informant as soon as possible.
(2) Confined to the facility and only permitted to leave in limited circumstances (for example, an off-site medical appointment) and only then in the company of a “senior resident”, being a resident who has completed more than 6 to 9 months in the program.
(3) Permitted to contact only a limited number of persons outside the program, both directly and by telecommunications.
(4) Required to complete tri-weekly urine screens. The applicant has agreed to waive privilege over the results of those screens, and to provide copies of the results to the informant as a condition of bail.
Further, if the applicant were to exit the program, a representative of Odyssey House would notify the informant as soon as possible.
In her affidavit, the applicant’s mother expressed a belief that the residential program would provide the applicant with the necessary tools to remain abstinent. She also stated that she will do everything within her power to ensure the applicant complies with the Odyssey House program and any proposed conditions of bail. She has undertaken to the court to contact police if she finds out the applicant is in breach of any bail condition imposed by the court.
Bail conditions requiring an applicant to attend and remain in a residential drug rehabilitation facility have been considered to be exceptional in the past.[2] Certainly in this case, where the applicant has undertaken to the court that he will attend Odyssey House continuously for the next 18 months if bail is granted, the circumstance is exceptional. It also has the potential to be extremely constructive.[3]
[2]See Robinson v The Queen (2015) 47 VR 226, 240 [50] (Maxwell P and Redlich JA).
[3]Ibid.
Delay
There was some disagreement between the parties as to the likely trial date. It was the applicant’s position that given the complexity of the underlying police operation and the nature of the charges, a trial date would not be set before March 2018. Counsel for the prosecution did not accept this and submitted a trial date could be as early as September 2017, but in any event was likely to be late next year.
On either case, it seems that the earliest trial date would be September 2017, meaning that, if bail is not granted, the applicant is expected to spend at least 18 months in pre-trial detention.
Surety
The applicant’s mother is willing to provide a surety of $100,000 by way of security over her property. She fully understands the risk of forfeiting that surety if the applicant fails to appear at court in answer to bail.
Unacceptable risk
The prosecution opposed the application on the grounds that there is an “unacceptable risk” of the applicant committing an offence whilst on bail or endangering the safety or welfare of members of the public.[4]
[4]Bail Act 1977 (Vic), s 4(2)(d)(i).
The applicant has prior convictions concerning conduct that took place in May 2013. These include convictions for an assault and an armed robbery of a liquor store. When he was arrested for these charges, a firearm was located in his vehicle, together with ammunition and a small quantity of amphetamines. A later search of the applicant’s bedroom located an imitation firearm and ammunition.
After his arrest, the applicant spent 2 days in custody and was bailed, on 26 May 2013, with Youth Justice Support. He complied with his bail conditions and did not reoffend for a period of nearly 11 months.
In January 2014, the applicant pleaded guilty to possess controlled weapon without excuse and was placed on an adjourned undertaking without conviction for 6 months.
In April 2014, the applicant pleaded guilty to the assault and armed robbery charges and was sentenced to a 2 year community corrections order. The applicant complied with this order until November 2014, at which point the applicant was convicted of 4 driving offences in breach of the order.
The prosecution submitted that, although the applicant did not have a history of breaching bail conditions, the breach of the community corrections order indicated there was a general risk that he would not comply with a court order. This, coupled with the applicant’s history of weapon-related offences, was said to indicate that the applicant posed an unacceptable risk.
It was submitted on behalf of the applicant that the strict nature of the program at Odyssey House and appropriate conditions of bail would ameliorate any unacceptable risk to the point of it being acceptable.
Prior to the applicant’s second bail application, there a bed was available at Destiny Transformations. The prosecution acknowledged that release to this residential rehabilitation facility on strict conditions would diminish any unacceptable risk. However, the prosecution submitted to this court that the conditions proposed by the applicant in this application were difficult to police, and amendments to those conditions were suggested.
D. Adjournment of the application
The hearing of the application for bail took place on 29 November 2016. At the conclusion of that hearing, I proposed to adjourn the application to 6 December 2016 so that the applicant could file further information in relation to the Odyssey House program. I proposed that the applicant would be granted bail during this time on conditions, including that he attend Odyssey House.
As the hearing on 29 November 2016 did not conclude in time for the applicant to be admitted to Odyssey House that day,[5] I adjourned the application to 9.00 am on 30 November 2016.
[5]Odyssey House required that the applicant be transported directly to their office from custody by 10.00 am. Odyssey House do not accept admissions after 12 noon.
On 30 November 2016, the applicant was granted bail on the proposed conditions (see paragraph 39 below), and the application was adjourned to 6 December 2016. The applicant was admitted to Odyssey House that morning and, since then, he has successfully complied with the program and has not breached the conditions of bail.
At the hearing on 6 November 2016, at the request of the court the applicant provided a list of strategies in relation to how he is going to approach his difficulties going forward. The applicant also provided the court with a letter reflecting his present attitude to life. I have read the list and the letter carefully and I am very grateful for them both.
E. Conclusion
As found above, the proposed terms of the applicant’s participation in the residential drug rehabilitation program is an exceptional circumstance. In any event, I am satisfied that the availability of a bed at Odyssey House, together with the applicant’s age, the likely delay in the matters coming to trial and the surety of $100,000, when viewed collectively amount to exceptional circumstances justifying the grant of bail.
I am also satisfied that any risk of the applicant reoffending while on bail or endangering the safety or welfare of the public is significantly reduced by the strict conditions that will be ordered.[6] I have taken into account the suggested amendments to the conditions put forward by the prosecution.
[6]Robinson v The Queen (2015) 47 VR 226, 240 [49]-[51] (Maxwell P and Redlich JA).
As such, the applicant will be granted bail on his own undertaking with 1 surety in the amount of $100,000 on the following conditions:
(1) The applicant reside at Odyssey House, 28 Bonds Road, Lower Plenty (“Odyssey House”).
(2) The applicant follow the appropriate treatment as directed and obey all lawful directions of the Odyssey House program manager and staff.
(3) The applicant submit to random drug testing as required upon request from Odyssey House staff.
(4) The applicant not use a drug of dependence as defined under the Drugs Poisons and Controlled Substances Act 1981 unless prescribed, and to obey the prescribed doses.
(5) The applicant arrange for copies of results of urine testing conducted at Odyssey House to be provided to the informant, Detective Senior Constable Shane Stevens, or his nominee.
(6) The applicant not possess a mobile telephone.
(7) The applicant not possess a Blackberry device.
(8) The applicant not use the WICKR messenger service.
(9) The applicant not contact witnesses for the prosecution except for the informant or his nominee.
(10) The applicant not contact or associate with any co-accused.
(11) The applicant surrender any passport held by him within 24 hours of release and not to apply for any further passport.
(12) The applicant not attend any points of international departure.
(13) The applicant not to leave the State of Victoria.
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