Application for bail by LP
[2020] VSC 764
•16 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0295
| IN THE MATTER of the Bail Act 1977 | Crown |
| v | |
| IN THE MATTER of an Application for bail by LP | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2020 |
DATE OF RULING: | 16 November 2020 |
CASE MAY BE CITED AS: | Application for bail by LP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 764 |
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CRIMINAL LAW — Application for bail — Charges of committing Schedule 2 offence whilst on bail for Schedule 2 offence — Allegations of family violence— Delay — Exceptional circumstances established —Unacceptable Risk of committing offences whilst on bail - Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 5AAAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Poole | Giorgianni & Liang Lawyers |
| For the Respondent | Ms D Karamicov | Office of Public Prosecutions |
HER HONOUR:
The applicant is charged by First Constable Page (‘the Informant’) with a number of family violence offences (‘the Page charges’).
The complainant in respect of the Page charges is TVD, with whom the applicant had an ‘on again off again’ relationship over several years.
The charges relate to a series of incidents involving the applicant and TVD in November 2017 and subsequent text message communication aimed at dissuading TVD from pursuing her complaints. There are four groups of charges which are summarised below. Many of the below charges involve constellations of alternative charges.
By way of background context to the applicant’s circumstances in 2017, it should be noted that at the time of the alleged offending against TVD, the applicant was subject to a final Family Violence Intervention Order (‘FVIO’) for the protection of his former partner MD, his son BD, and another of MD’s children.[1] No breaches of that order are alleged.
[1]See Affidavit in Opposition of Corey Larkin dated 12 November 2020 (‘Affidavit in Opposition’), CJL- : that Order was made on 17 May 2017 and expires on 10 January 2021. It has full no contact conditions, and exceptions allowing for the applicant to see his child in accordance with any Order or written agreement, the applicant was present at the hearing where the Order was made and agreed to the order being made.
9 November 2017: the carpark incident
Summary
TVD alleges that on 9 November 2017, at approximately 9:45pm, she was pulling into a Westfield Shopping Centre carpark, when she noticed some headlights turn on in a car in front of her. She saw the applicant driving a car that appeared to be a rental vehicle he had been using. The applicant drove his vehicle towards the victim’s car, colliding with it head on, and blocking her vehicle in. He then got out of the rental vehicle. In order to evade the applicant, TVD mounted the gutter in her car and side swiped the applicant’s vehicle before driving straight home.
Charges
(a) Reckless conduct endangering serious injury (contrary to s 23 of the Crimes Act 1958 (Vic)(‘the Crimes Act’)(Charge 1); and
(b) Unlawful assault (contrary to s 23 of the Summary Offences Act 1966 (Vic)(Charge 12).
25 November 2017: the car incident
Summary
This incident allegedly took place inside the applicant’s car on Saturday 25 November 2017. The applicant is alleged to have become angry at TVD accusing her of cheating on him. He is alleged to have stopped the vehicle, and grabbed TVD by the hair with his left hand, pushing her head towards his lap before punching her in the head approximately five times with his right fist and pulling her hair. The applicant is then said to have leaned over and bitten the victim under her left arm, leaving a bruise and teeth marks.
Charges
(a) Intentionally causing injury (contrary to s 18 of the Crimes Act)(Charge 3);
(b) Intentionally causing injury (contrary to s 18 of the Crimes Act)(Charge 4);
(c) Recklessly causing injury (contrary to s 18 of the Crimes Act)(Charge 7);
(d) Recklessly causing injury (contrary to s 18 of the Crimes Act)(Charge 8); and
(e) Two charges of Unlawful assault (contrary to s 23 of the Summary Offences Act 1966 (Vic)(Charges 13 and 14).
26-27 November 2017 – the apartment incident
Summary
This continuing episode is alleged by TVD to have occurred over Sunday 26 and Monday 27 November 2017. TVD was at the applicant’s apartment which he shared with other occupants at the time. The other occupants were in their own room(s) at the relevant time. The applicant allegedly became angry at TVD and asked her questions about her friends, telling her to ‘think hard about what you are about to say to me coz [sic] if it’s not the truth you are going to be in big trouble.’ Believing this meant the applicant would not let her leave that night, TVD asked him to not hurt her and to let her go see her mum. The applicant allegedly yelled at TVD ‘you’re a dog and just for that you’re not going home tonight,’ before taking her keys and mobile phone from her. The applicant then hit TVD multiple times across the head, temple and cheekbone, telling her to be quiet so his house mates did not hear, saying that if he got kicked out it would be her fault.
The applicant then looked through TVD’s phone. She was unable to leave. She fell asleep, and at around 10:00pm the applicant woke her and questioned her about the contents of her phone before hitting her in the middle of her back with a jet lighter, causing grazing and swelling. TVD pleaded with the applicant to be allowed to go home before being assaulted again. The applicant allegedly punched her multiple times to her left hip and the back of her right thigh, leaving her bruised and experiencing difficulty walking. It is also alleged that the applicant had a knife during the apartment incident although this allegation was not mentioned in TVD’s November 2017 police statement.
The next morning at around 8:00am, TVD believed she noticed the applicant throw her keys under the mattress before lying down to sleep. TVD made an excuse to leave the room and then ran out of the apartment and went down to a medical centre at the base of the building. The receptionist called 000 whilst TVD remained out of sight, afraid the applicant might walk by. Police arrived 20 minutes later, and attended the apartment with the applicant so she could collect her belongings. However, when police knocked at the apartment, no one answered. The applicant later went to Mill Park Police Station where she made a statement about the incident.
Charges
(a) False imprisonment on 26 November 2017 (common law)(Charge 2);
(b) Intentionally causing injury on 26 November 2017 (contrary to s 18 of the Crimes Act)(Charge 5);
(c) Intentionally causing injury on 26 November 2017 (contrary to s 18 of the Crimes Act)(Charge 6);
(d) Recklessly causing injury on 26 November 2017 (contrary to s 18 of the Crimes Act)(Charge 9);
(e) Recklessly causing injury on 26 November 2017 (contrary to s 18 of the Crimes Act)(Charge 10); and
(f) Theft on 26 November 2018[2] (contrary to s 74 of the Crimes Act)(Charge 11).
(g) Two charges of Unlawful Assault on 26 November 2017 (contrary to s 23 of the Summary Offences Act 1966 (Vic)(Charges 15 and 16).
(h) Unlawful Assault with a weapon on 26 November 2017 (contrary to s 23 of the Summary Offences Act 1966 (Vic)(Charge 17).
[2]The date of this charge may be incorrect, but it is not clear from the police summary.
28 November 2017 – 21 March 2018 text messages
Summary
Between 28 November and 21 March 2018 the applicant allegedly sent TVD a great many text messages,[3] including messages threatening her and pressuring her to revoke her statement. A charge of engaging in conduct intending to pervert the course of justice resulted from this alleged offending. That charge (Charge 19) was laid in April 2020 along with a charge of common law assault relating to the family violence offences that the applicant was already charged with.
Charges
[3]Alleged by police to number more than 1000.
Common Law assault on 25 November 2017 (Charge 18)[4]; and
[4]The charge sheet erroneously cites s 197(1) of the Crimes Act 1958 (Vic) (property damage) as the relevant section under which the applicant is charged for this offence. However, the description of the offending is consistent with common law assault.
Common law charge of attempting to pervert the course of justice between 28 November 2017 and 21 March 2018 (Charge 19).
The explanation for these latter two charges being laid so much later is detailed below.
All of the above mentioned charges are listed before the Melbourne Magistrates’ Court on 2 March 2021 for a committal hearing.
The applicant disputes the allegations and intends to contest the charges.
Procedural background
This matter has somewhat of a convoluted procedural history, and finalisation of the Page charges has been delayed on numerous occasions. It is not in dispute that the delays are attributable to actions and decisions of both the applicant and the respondent at different times.
Following her escape from the applicant on 27 November 2017, on the evening of the day that the 000 call was made, TVD made her first statement to Mill Park Police. A different police member had been assigned as the informant at that time. That person then left the police force, and First Constable Page was assigned the matter close to 12 months after the date of the alleged offending.
On 22 October 2018, Informant Page obtained a final FVIO for the protection of TVD from the applicant. That Order expires on 21 October 2023 and prohibits contact with her, except through a lawyer or mediator to attend counselling and mediation with her. The applicant did not attend the hearing of the application for the Order. His Corrections Victoria sentence/remand report dated 11 November 2020 (‘sentence/remand report’)[5] confirms he was in custody on other matters[6] at the time that Order was made.
[5]The Court obtained this report from Corrections Victoria on 11 November 2020 with the consent of both parties.
[6]See also Affidavit in Support of Alexia Frossynos dated 5 November 2020 (‘Affidavit in Support’), AF- 4: on 24 October 2018, he was sentenced to a total effective sentence of 9 months imprisonment, with a 12 months CCO.
On 12 November 2018, the applicant was charged by First Constable Page in relation to the carpark incident, the car incident, and the apartment episode. As such, it is not disputed that the initial 12 month delay in filing charges in this matter was due to no fault of the applicant.
Initially, the applicant was on summons for these matters which were commenced in the summary stream, but on 8 May 2019 he was placed on bail by police.[7] Shortly after the matters were commenced, the applicant is alleged to have elected to have the matter uplifted to the Committal Stream.
[7]This is likely to have occurred because it appears the applicant was in custody when the Page charges were filed in November 2018.
On 29 November 2019, TVD made a further statement. That statement related to the text messages she had received following the applicant’s November 2017 conduct. TVD also alleged in that statement, for the first time, that during the apartment incident, the applicant held a knife to her throat.
Four committal mentions were then heard in this matter, but before the matter could proceed further, the applicant was remanded into custody on 10 February 2020, due to his bail being revoked after he engaged in subsequent offending.[8] Senior Constable Douglas was the Informant for those matters (‘the Douglas charges’).
[8]Offence dates: 5-12 January 2020.
The Douglas charges involved family violence offending against another intimate partner, ‘SK’, in January 2020. The applicant was charged with a range of family violence offences and with two charges of persistent contravention of the FVIO. The summary of that matter is annexed to the Supplementary Affidavit in Support of Bail of Alexia Frossynos (‘Supplementary Affidavit it Support’).[9] It is worth briefly setting out the facts of that matter here:
[9]Dated 10 November 2020 (‘Supplementary Affidavit in Support’), AFS-1.
(a) SK was 18 years old at the time of the offending.
(b) On 26 November 2019, a FVIO was granted against the accused for SK’s protection. The conditions of that Order are summarised in the police summary annexed to the Supplementary Affidavit in Support.[10] It appears the Order did not prohibit all contact between the applicant and SK, although it prohibited the applicant from committing family violence against her, going within 200 metres of her home or workplace, locating, following or keeping her under surveillance, damaging her property, or publishing information about her on the internet.
[10]Ibid.
(c) On 5 January 2020, the applicant and SK were together, and had an altercation in the applicant’s car while they were stopped at an angle on a road, blocking traffic. A witness, MS, pulled her car over after she saw SK in the applicant’s car screaming and thrashing her arms and legs. The applicant then punched SK twice to the head. SK tried to escape from the applicant’s car, and the applicant tried to grab her.
(d) At around that time, another witness, Brown, also pulled over near the applicant’s car. SK then fell out of the applicant’s car head first, and managed to escape from the applicant’s vehicle into MS’s car. MS contacted 000, and once SK was in her car, MS sped off.
(e) The applicant did a U turn in his vehicle and followed MS’s vehicle. Brown also followed MS, and positioned his vehicle between MS’s vehicle and the applicant’s to protect MS and SK. While in MS’ car, SK received several text messages from the applicant including one saying: ‘Plz[sic] don’t go to the police.’ He sent messages professing love and offering SK his vehicle. Also while SK was in MS’ vehicle, SK repeatedly expressed fear of the applicant and refused to disclose his name to MS, fearing violent repercussions.
(f) The applicant continued pursuing MS and Brown’s vehicles, until the three reached a straight stretch of road, where the applicant overtook Brown and drew up alongside MS’s vehicle. The applicant swerved to the left at one stage towards MS’s vehicle, before taking off around a corner at speed. MS and SK rendezvoused with police shortly after, and SK was taken by ambulance to hospital for her injuries. Later that day the applicant sent SK more text messages, apologising for his conduct and expressing that he wanted to die.
(g) SK refused to provide a statement that day, stating she was too fearful of repercussions from the applicant.
(h) Between 5 and 12 January 2020, the applicant sent SK daily emotionally abusive text messages.
On 28 September 2020, a final FVIO was made against the applicant for SK’s protection. That order expires on 27 September 2021 and has full, no contact conditions. The applicant was present at the hearing of the Order and consented to the Order, without making admissions to the allegations against him.
On 9 October 2020, the applicant pleaded guilty to one charge of intentionally causing injury and two charges of persistent contravention of a FVIO.[11] The applicant was sentenced to 10 months imprisonment and a 14 month Community Corrections Order (‘CCO’)[12] for the Douglas offending.
[11]The applicant also pleaded guilty for driving whilst disqualified, committing an indictable offence whilst on bail, driving in a manner dangerous,
[12]With therapeutic conditions directed towards treatment for drug abuse, mental health assessment and offending behaviour programs.
He has served the custodial component of that sentence by way of presentence detention (PSD) and would be entitled to complete his sentence on those charges in a community based setting if granted bail on the Page charges.
Returning to the Page charges, it should be noted that of the four committal mentions that occurred before the applicant’s bail was revoked, the first had to be adjourned due to funding issues, and two had to be adjourned because his solicitors could not obtain instructions from the applicant.[13]
[13]The third committal mention on 16 January 2020, and the fourth on 10 February 2020.
On 12 February 2020, the fifth committal mention of the Page charges was adjourned for an unopposed summary jurisdiction application. That application was listed on 18 March 2020, but was also adjourned as the matter had apparently resolved and the prosecution sought time to obtain a Victim Impact Statement.
However, before the matter could be finalised, on 2 April 2020, charges 18 and 19 were filed by Informant Page.[14] The summary jurisdiction application next listed on 6 April 2020 was adjourned because the applicant was not brought to Court.
[14]Counsel for the respondent explained at the hearing that charge 18 (Common Law Assault) was laid as a result of an agreement with the applicant’s previous solicitors as part of the resolution in the matter.
On 6 May 2020, the sixth committal mention was held and the summary jurisdiction application was unable to proceed due to the filing of the indictable charge of attempt to pervert the course of justice. The matter was adjourned to 10 June 2020 for a seventh committal mention, and at that subsequent committal mention, a committal hearing was set down for March 2021.
I accept that the early delay in this matter may have been partly consequential upon the applicant’s election to have the matter dealt with in the committal stream, and his failure to provide proper instructions on two occasions.[15] However, the initial 12 month delay in the charges being filed was not his fault and is regrettable. Further delays occasioned by such matters as the applicant not being brought to court are also regrettable. Potential resolution of the Page charges also seems to have been disrupted in April 2020 as a result of the decision to lay Charge 19 almost two years after the alleged offending. Once again, I regard these kinds of delays in prosecuting these proceedings as regrettable.
[15]Noting however that a decision to have the matters heard summarily might depend on a negotiated outcome so that all charges that proceeded were capable of being heard summarily.
Prior criminal history
The applicant has an extensive criminal record, spanning over the last 20 years, which includes convictions and findings of guilt for dishonesty and driving offences, resisting police, drug possession and trafficking, violence (including in a family violence context), weapons, ammunition and firearm related offences. That history also includes the following bail offences and breaches of court orders:
(a) Failing to appear in 2002;
(b) Failing to answer bail in 2006 (two charges), 2015, 2016 (two charges) and 2017;
(c) Breach of suspended sentence order in 2012;
(d) Failing to comply with conditions of bail in 2016;
(e) Contravening a conduct condition of bail in 2016;
(f) Contravening a CCO in 2017-2020 (two charges);
(g) Committing an indictable offence whilst on bail in 2019 and 2020; and
(h) Persistent contravention of a family violence notice or order in 2020 (two charges).
(i) Between 2001 and 2005, the applicant was also before the Court on a number of occasions mainly for less serious drug, driving and dishonesty offending.
Family Violence Offending History
In September 2005, the applicant was sentenced to three months imprisonment for recklessly causing injury to his then partner, MD. This appears to be the applicant’s first conviction for family violence-related offending.
In September 2008, the applicant was sentenced to three years imprisonment, with a two year non-parole period, for recklessly causing serious injury to MD (‘MD offending’). The sentencing remarks of Judge Thornton of the County Court are annexed to the Affidavit in Opposition.[16] The facts of that case involve some similarities to aspects of the current Page matters and the proven Douglas offending. The offending against MD occurred in 2006 when the applicant was 22 years of age, and involved a prolonged, violent attack committed within a vehicle, amongst other locations, and causing multiple injuries. The offending included hitting her with a belt and a laundry basket. It also involved deadlocking the doors to the house and retaining the keys so MD could not leave. The offending occurred despite the earlier prison sentence for assaulting MD and despite an FVIO being in place at the relevant time,[17] although no formal breach proceedings were ever issued. A forensic psychiatric report obtained by the court at that time stated that the applicant had been diagnosed as suffering from cannabis dependence and polysubstance abuse.
[16]CLJ-4, R v [LP] [2008] VCC 1210.
[17]The sentencing remarks of Thornton J refer to this fact.
The Douglas offences referred to earlier involved conduct that took place after the offending alleged by Informant Page. The applicant was on bail for the majority of the Page offences when he engaged in the Douglas offending.
Outstanding matters
The applicant has two further outstanding charges, where the Informant is Davies (‘Davies charges’). The applicant is charged with theft of a motor vehicle on 4 May 2018 and using a carriage service in a menacing manner on 16 May 2018. The applicant is on summons for those charges. Again, these offences are alleged to have occurred after the Page charges.
The summary of the Davies charges is annexed to the Affidavit in Support.[18] Notably, during that offending, it is alleged that the applicant failed to return a car belonging to his friend, to that friend, the alleged victim. The alleged victim contacted the applicant numerous times to ask for the car back. In response to messages sent on Facebook, the applicant is alleged to have said: ‘..call the cops yeh coz ill [sic] end up getting busy if you call the cops on me buddy,’ the applicant then sent two photos of a barrel of a long arm firearm and a further message saying ‘U [sic] threaten me again n il [sic] show U [sic] I’m not playing around.’
[18]Affidavit in Support, AF-3.
That matter is next listed for Mention on 7 December 2020.
Previous Bail Application
At Melbourne Magistrates’ Court, on 21 October 2020, the applicant was refused bail on the Page charges. It had been agreed by both parties that the relevant bail test that applied was the compelling reasons test.
Bail was refused on the grounds that although compelling reasons for the granting of bail were established, the applicant was an unacceptable risk of committing an offence whilst on bail.
In respect to the present application, the parties now concede that, in fact, the applicant falls within the exceptional circumstances test for bail by virtue of being charged with a Schedule 2 offence, namely an indictable offence alleged to have been committed during the period of a CCO made in respect of another indictable offence, as well as a Schedule 2 offence, namely failure to answer bail pursuant to s 30 of the Bail Act 1977 (Vic)(‘the Act’).
Relevant legal principles
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1).[19] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst taking into account the presumption of innocence and right to liberty.[20]
[19]The Act, s 1B(2).
[20]The Act, ss 1B(1)(a) and 1B(1)(b).
Exceptional circumstances
The applicant has the onus of satisfying the Court that exceptional circumstances are made out, applying the test, under s 4AA(2)(c)(v) of the Act.
The Court must consider the all relevant surrounding circumstances of the matter, including, but not limited to, those set out under s 3AAA(1) of the Act in assessing whether exceptional circumstances are made out.
Exceptional circumstances may include a combination of circumstances, even if none of those circumstances are individually exceptional.
In the bail application of Re Brown,[21] Lasry J summarised principles relevant to interpreting ‘exceptional circumstances’ in the context of applications for bail:
The circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail.
Whilst the threshold of exceptional circumstances is high, it is not an impossible standard to reach.
Furthermore, exceptional circumstances may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[22]
[21][2019] VSC 751.
[22]Ibid [65] (citations omitted).
Unacceptable risk
Even if exceptional circumstances are made out, the respondent alleges that the applicant is an unacceptable risk of offending whilst on bail or interfering with a witness. The applicant must be refused bail if the respondent discharges its onus of showing unacceptable risk.
The Court is again directed to consider the ‘surrounding circumstances’ in determining whether there is an unacceptable risk, and whether there are any conditions of bail that can be imposed to mitigate risk so that it is not unacceptable.
Family violence risks
In accordance with s 5AAA(1), because the applicant is charged with a family violence offence,[23] the Court must make enquiries of the prosecutor as to whether there is a family violence intervention order, safety notice, and or a recognised DVO in force against the applicant.
[23]Add the definition and list the relevant charges
I have been informed by the respondent of the three FVIOs currently in force against the applicant (detailed above).
Pursuant to s 5AAAA(2), in deciding whether to grant bail, I must also consider the following:
(a) Whether, if the accused were released on bail, there would be a risk that the accused would commit family violence; and
(b) whether that risk could be mitigated by—
(i) the imposition of a condition; or
(ii) the making of a family violence intervention order.
Applicant’s case in support of bail
Documents relied upon by the applicant
The following documents were filed on behalf of the applicant.
(a) Affidavit in Support of an Application for Bail dated 1 November 2020;
(b) Affidavit of Donna Ramsay dated 6 November 2020;
(c) Supplementary Affidavit in Support of an Application for Bail dated 9 November 2020;
(d) Supplementary Affidavit in Support of an Application for Bail dated 10 November 2020; and
(e) Submissions on behalf of applicant dated 12 November 2020.
The applicant’s subjective circumstances
The applicant is a 37 year old man whose mother was diagnosed with cancer when he was a child. This led to an unsettled upbringing including domestic violence perpetrated upon him by his father. In 2003, as a young person in the workforce his right hand was crushed by a machine in a workplace accident. He was placed on Work Cover for two years having received permanent nerve damage as a result of the accident. After the 2003 workplace accident the applicant began using methyl amphetamine to self-medicate and went on to develop drug dependency issues.
The applicant formed a relationship with MD in his youth and the couple have a son, BD, who is 14 years old. As described earlier in these reasons, MD was the victim of family violence in 2005 for which the applicant was sentenced to three months imprisonment. She was again the victim of family violence in 2006 for which the applicant was sentenced to a term of imprisonment in 2008.
BD is currently in the care of Department of Health and Human Services. Previously the applicant is said to have had custody of BD. The applicant currently has video visits with BD and has expressed that he wants to gain full custody of BD upon the applicant’s release into the community. However, BD is currently listed as a protected person on a current FVIO along with MD and one of her other children.
At the time of the offending alleged in the Page charges the applicant was unemployed. He has a long history of substance abuse.
The applicant’s mother suffered severe ill health for many years. Sadly, she died on 7 November 2020 whilst the applicant’s application for bail in this Court was pending having been filed on 5 November 2020.
Applicant’s arguments in support of bail
The grounds relied on by the applicant to establish exceptional circumstances
The applicant submitted that the Court should be satisfied that exceptional circumstances are shown (based on a combination of circumstances) and that the risk of re-offending or interfering with witnesses was not unacceptable if strict bail conditions were imposed.
The applicant referred to the need for the Court to consider the ‘surrounding circumstances’ pursuant to s 3AAA(1) of the Act, both when considering whether exceptional circumstances are established by the applicant and when considering whether the respondent has established unacceptable risk.
The applicant referred to the following matters:
(a) Nature and seriousness of alleged offending: the applicant concedes the alleged offending is serious, and aggravated by the fact that it occurred in the context of family violence, but noted that the allegations are disputed.
(b) Strength of prosecution case: the applicant submits there are ‘triable issues’ and that ‘there is a real prospect of acquittal’ because of doubts about the credibility of the complainant’s account and a lack of corroborating evidence supporting her allegations.
(c) Criminal history: the applicant accepts he has a lengthy criminal history with relevant prior convictions.
(d) Compliance with earlier grants of bail: the applicant accepts he has prior convictions relating to breaches of bail.
(e) Offending whilst on a CCO: the applicant accepts that at the time of this alleged offending he was subject to a CCO, but notes that the relevant CCO:
(iii) related to drug offending/non-violent offences; and
(iv) was imposed in respect of a failure to answer bail and the breach of a CCO originally ordered on 5 June 2015 (that is, the underlying substantial offending was dated).
(f) FVIOs in force: the applicant accepts that he is the respondent to three active FVIOs. The current order relating to his former partner and children was made in 2017 and the applicant notes that it not been breached. The order relating to TVD was made in October 2018 and has not been breached. The applicant pleaded guilty to two charges of persistent breach of a FVIO that related to the victim in the Douglas charges. That was the applicant’s first court appearance involving formal charges for breach IVO.
(g) Personal circumstances: the applicant’s personal circumstances have been referred to above.[24]
[24][53]-[57].
(h) Special vulnerability: the applicant is said to have been diagnosed with Depression and Anxiety and is currently prescribed anti-depressant medication.
(i) Availability of treatment and bail support services: the applicant notes that as part of the sentence imposed in the Douglas matter, there is a 14-month CCO, to follow his release from prison which includes an intensive compliance period and a Judicial Monitoring condition. At the hearing, Counsel for the applicant submitted that the Court can infer from the fact that the CCO was ordered, that the applicant is a suitable candidate for such an Order and that the conditions attaching to the CCO would address his issues.
(j) Length of time the applicant is likely to spend in custody if bail is refused: the applicant notes that the committal hearing in this matter is listed on 2 March 2021 and that a trial is unlikely to take place before the second half of 2022, by which time the applicant will have spent at least 18 months on remand. Whilst conceding that if found guilty of the offences, he is potentially liable to ‘a head sentence with a non-parole period’, the applicant submits that the time spent on remand could exceed the non-parole period.
In summarising the matters relied on the make out exceptional circumstances, the applicant principally relies on the prospect of delay before a trial can be heard, the prospect that the applicant could be acquitted of the charges, the fact that the offending occurred nearly three years ago, and that nearly 12 months transpired before any of the Page charges were laid. The applicant also emphasised the fact that no offences were committed against TVD after the Page charges were laid.
Further, heavy emphasis was placed on the fact that the applicant’s mother was extremely unwell in the lead up to the bail application in this Court, and died on the weekend prior to the bail application. The funeral for the applicant’s mother has been deferred pending the outcome of the bail application.
The applicant’s sister, Ms Donna Ramsay, has offered him a stable address and proposes to supervise him on bail. That supervision would be buttressed by the supervision that would be offered by the CCO that would commence upon the applicant’s release from custody in accordance with the sentence imposed for the Douglas charges.
Regarding unacceptable risk, the applicant reiterates that the Page offending is alleged to have occurred three years ago. The applicant’s history of convictions relating to has breaching a FVIO is modest, and he has shown some capacity to abide by FVIOs that apply to him. Further, the proposed bail address does not place him with an intimate partner. Ms Ramsay has agreed to notify any breach of conditions of bail and the CCO imposed for the Douglas offending would offer treatment support and supervision. Bail conditions could be imposed such as curfew, prohibition on illicit substance use, and regular urine drug screens.
It is proposed, that the applicant would reside with Ms Ramsay, at her address in Newport if granted bail. Ms Ramsay lives alone, and the applicant would have his own bedroom in her home. Ms Ramsay affirmed in evidence before me that she has mental health issues including depression and bipolar disorder, but that she is willing to supervise the applicant on bail. She said that she would notify the Informant if she became aware the applicant was breaching any of the conditions of his bail. She was also confident she would be able to tell if the applicant was using drugs, and would not tolerate any illicit substances in her home. She told the Court the applicant has a good relationship with her adult children (who live in a nearby suburb), and that they ‘idolise’ him. While she and the applicant had not always been in close contact in recent times, due in part to the applicant’s drug use, they had been in regular contact since the applicant’s most recent time on remand.
Ms Ramsay told the Court the applicant had lived with her in 2008 or 2009 for a period of around five months. Though she could not be confident as to the exact dates, she recalled that the applicant lived with her as a result of having been released from prison. She told the Court the applicant had never been violent towards her and that she had no concerns for her safety if he were to live with her.
Ms Ramsay was visibly upset at times during the hearing when speaking of her mother’s passing. She said she had taken on somewhat of a mothering role for the applicant and wants to help him improve his life. She said she had successfully assisted her son with his drug addiction some years ago, and assisted him to recover and find stable work. She was confident she could help the applicant in a similar way, to adhere with his various commitments.
Ms Ramsay confirmed she had spoken with a Community Corrections worker regarding the applicant. It is evident Ms Ramsay has a good understanding of the various commitments the applicant would have if he were released on bail.
It was submitted on behalf of the applicant that he has used his time in custody productively completing several rehabilitative programs, including ‘Ice and Me’, ‘Keeping Your Cool’ and ‘Building Better Relationships’. If bail were granted he would have access to support and supervision in the community through his CCO, including treatment for drug addiction and mental health issues. With respect to any specific risk alleged against TVD, a FVIO has been in place since October 2018 and there have been no allegations of re-offending against her during the periods that he was at large. It was submitted by the applicant that any remaining risk can be ameliorated to an acceptable level by the imposition of strict conditions.
The applicant addressed me briefly during the hearing, at my invitation. He told me that, before she died, he had promised his mother he would change his life. He said he had the ability to change and that he would appreciate the opportunity to do so.
Respondent’s case in opposition to bail
Documents filed
In response to the application, the respondent filed a single Affidavit in Opposition of Codey Larkin (OPP solicitor) dated 12 November 2020 (‘Affidavit in Opposition’).
Arguments in opposition to bail
The respondent’s opposition to bail is two-fold. First, it is submitted that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail. Second, it is submitted that the applicant is an unacceptable risk of each of the matters set out in s 4E(1)(a) of the Act. It is the respondent’s position that there are no conditions of bail that could ameliorate the risks alleged to an acceptable level.
In response to the applicant's material, the respondent notes that following:
(a) Strength of the prosecution case: during the hearing the respondent disputed the significance of the delay in TVD alleging that the applicant threatened her with a knife. The respondent drew the court’s attention to two text messages between the applicant and TVD in November and December 2017 (respectively) where the knife allegation was raised. It was further alleged that other text messages between the applicant and TVD contain admissions relating to the incident on 27 November 2017.
(b) Criminal history: While the applicant has limited convictions for contravening FVIOs, it is noted that he has a long history of committing serious violence against domestic partners. Most recently, the applicant was convicted of family violence offending in the Douglas matter. Further, the 2008 convictions involving MD were described as a 'vicious, prolonged and unprovoked attack' against his domestic partner at that time, MD. Those offences were committed during an existing FVIO protecting MD and that was taken as an aggravating factor of that offending by the sentencing judge. Since 2002, it is alleged that the applicant has been named as the respondent in 16 different FVIOs.[25] Counsel for the respondent submitted at the hearing that the applicant continued to take drugs throughout his criminal history and that this appeared to be the ‘main driver’ of his offending. Further, the respondent submitted the applicant’s three clean drug screens (provided whilst he has been in prison) do not allow the court to be confident that the applicant will remain clean whilst in the community.
[25]Affidavit in Opposition, [44].
(c) Family support and stable accommodation: The respondent takes issue with the proposal for the applicant to reside with his sister, Ms Ramsay, due to her mental health issues which, on her own evidence,[26] prevented her from taking on the role as her mother's carer. A report dated 6 October 2020, from Dr Andrew Ramsay of Coolaroo Clinic confirmed that Ms Ramsay was already struggling with her own daily self-care and was not fit to be a carer for her mother at that time.[27]
(d) Availability of treatment and support services: The respondent argues that the applicant has been sentenced to CCOs on numerous occasions, with conditions of supervision and treatment not dissimilar to the conditions of the CCO imposed this year as part of a combination sentence. CCO conditions have not previously prevented the applicant from committing further serious offences. It was argued that the Court should take ‘no comfort whatsoever’ from the availability of the CCO.[28] Counsel for the respondent also noted during the hearing that the applicant had been subject to judicial monitoring before and had still breached orders.
(e) Delay and length of time in custody if bail is refused: It is accepted by the respondent that there will likely be delay caused by the COVID-19 pandemic. However, as at the time of the hearing of this application, the applicant has only served nine days on remand for the Page charges (noting his recent sentence of 10 months' imprisonment). This needed to be weighed together with the fact that, if found guilty of the charges against him, it would be open to a court to sentence him to a lengthy term of imprisonment due to the seriousness of the alleged offending and the applicant's criminal history.[29] Counsel for the respondent suggested that if found guilty the applicant would likely receive a sentence of greater than 18 months.[30]
[26]Affidavit of Donna Ramsay dated 6 November 2020, [6].
[27]Affidavit in Support, AF-6.
[28]Transcript of proceedings, Application for Bail by LP, 13 November 2020 (Ms Karamicov)(‘Transcript’), 59.
[29]It should be noted that the Douglas offences are not prior convictions for the purpose of any sentencing that might follow if convicted of the Page offences.
[30]Transcript, 66.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent expressed particular concern for the safety of TVD, noting both the severity of the alleged offending the threats that followed( by text message), and the risk that the applicant would seek retribution against TVD if granted bail. He is alleged to have told the complainant via text message that he would 'stop at nothing' if something happened to his mother whilst he was in custody.[31] It was further noted that the applicant was recently sentenced for serious family violence offending in the Douglas matter, showing his propensity to engage in serious offending after being granted bail.
[31]Affidavit in Opposition, CJL-1.
Committing an offence whilst on bail
Counsel for the respondent submitted at the hearing that this was the main concern with respect to unacceptable risk.[32] The applicant's criminal record contains two dispositions for committing an indictable offence whilst on bail, and, more broadly, discloses a significant history of breaching court orders. The Douglas offences occurred whilst the applicant was on bail for the majority of the Page charges.
[32]Transcript, 67.
Interfering with a witness or otherwise obstructing the course of justice in any matter
According to the present allegations, the applicant has attempted to pervert the course of justice by persistently contacting TVD by phone in an effort to coerce her into withdrawing her statement. It was submitted that the applicant had engaged in similar coercive conduct, in the Douglas matter (for which the applicant was sentenced on 9 October 2020) and in the Davies matter. In the Douglas matter after the alleged assaults on 5 January 2020, the applicant begged SK not to go to the police. He also contacted SK in breach of an intervention order with abusive and coercive text messages between 5 and 12 January 2020.
Failing to surrender into custody in accordance with the conditions of bail
The applicant's criminal record contains seven dispositions for failing to answer bail. The respondent is likely to be facing a further term of imprisonment for the Page charges and may well be motivated to avoid answering his bail.
Analysis
Step 1 – Do exceptional circumstances justify a grant of bail?
It appears to the Court that the central factors, viewed in combination, that are most relevant to considering whether the threshold of exceptional circumstances is met, include the following matters:
(a) Personal circumstances and family support: The recent death of the applicant’s mother and the offer from the applicant’s sister to supervise the applicant and have the applicant live with her. I accept that the applicant’s sister is genuine in her desire to help her brother and is not naïve about the challenges she would face in taking on the role of offering him a bail address and supervising him on bail. I also accept that the applicant was genuine in expressing to the Court his heartfelt sentiments about his promise to his mother that he would change his ways.
(b) Time spent in custody: The applicant has been in custody continuously since being arrested on the Douglas charges in January this year and since having bail revoked on the Page charges. He has now served the custodial component of the sentence imposed on the Douglas charges and has the option of structured support by way of a CCO if bailed on the Page charges. I accept that the support offered by a CCO would help buttress any bail conditions that might be fixed by the court. I also accept that the applicant’s time in custody will be more onerous due to COVID-19 and the associated restrictions within the prison environment that are in place as a result.
(c) Use of time in custody: The applicant has used his time in custody fruitfully and has been able to produce evidence of courses he has undertaken relevant to his past history of poor anger management and drug abuse. He has also produced 3 clean urine drug screens. He has conducted regular video visits with family members over this recent period of imprisonment including with his now deceased mother, his sister Ms Ramsay and his son, BD.
(d) Strength of the prosecution case: The complainant in the Page charges may be susceptible to impeachment of her credibility in relation to aspects of her evidence. Regarding the carpark incident, no corroborating evidence was able to be referred to, such as photographs of damage to the respective cars. It did not appear that an immediate complaint was made about that matter or about the car incident. The content of the 000 call by the medical receptionist made at the behest of TVD appears to contradict an account of the use of a weapon in the apartment incident, and TVD apparently only mentioned verbal abuse at that time. The delay in bringing forward the allegations about being threatened or pressured by text message was not adequately explained to the Court, nor was failure to mention a threat with a knife in the 2017 police statement properly explained.
(e) Furthermore, it is hard to understand why a charge as serious as attempting to pervert the course of justice has been laid in respect of the text messages relied on to make out that charge, and yet the mobile phone said to be the source of that evidence is not in the custody of police and has not been subjected to forensic analysis. The Court was required to refer to a spreadsheet created by TVD through the use of a mobile application. It was also hard to understand why charge 19 was laid after a proposed resolution of the proceedings, when the second statement of TVK had been taken on 29 November 2019.
(f) Compliance with FVIOs: The applicant was the subject of FVIO in favour of TVD put in place on 22 October 2018 and in the periods when he was not in custody from that time until now he did not breach that IVO by any further attempts to contact TVD. He has also managed to avoid breaching the 2017 FVIO in favour of MD and her family.
(g) Delay: There has been significant delay in the Page charges being finalised , much of which is not attributable to the applicant. There is likely to be future delay before the matter is finalised by trial before a jury due to the COVID-19 pandemic. Potential delay as a result of the COVID-19 pandemic has led to consideration of general principles to be applied in the context of bail by Beach JA Re Diab.[33] Given the current delays facing the Court system, it is possible the applicant may spend more time on remand for these charges than any ultimate sentence, but much depends on the outcome of each of the Page charges which is difficult to predict at this juncture. The charge of false imprisonment is a serious charge and the charges involving causing injury are also serious and are supported by disturbing photographs of injuries to TVD. Thus far, the applicant is only just commencing his remand on the Page charges, due to PSD attributed to the Douglas charges.
[33][2020] VSC 196, [38].
When considering whether the applicant meets the test for exceptional circumstances, the matters relied on above are qualified by other considerations, set out below.
(a) Family support: Whilst I was impressed by Ms Ramsay’s level of commitment to the applicant, I consider that the recent family bereavement means that Ms Ramsay will herself face additional challenges in the coming weeks and months. The applicant will also be subject to emotional pressures that will make it more difficult for him to settle into the routines required of him if he were to be granted bail.
(b) CCOs: Although the CCO offers a prospect of additional support and structure, the applicant’s compliance with CCOs in the past has been very poor.
(c) Bail history: The applicant’s bail history is also poor. He has failed to appear on bail a number of times in the past as well as breaching conditions of bail.
(d) Strength of the prosecution case: Regarding the strength of the prosecution case in respect of the Page charges, the photographs of significant bruising on several different areas of TVD’s body and an apparent bite mark provide potent support for her evidence that she was a victim of assaults by the applicant. The fact that she fled to a nearby medical clinic from the applicant’s apartment tends to support her account given to police in November 2017, that she was detained against her will, and assaulted by the applicant. The content of text messages referred to by TVD as being captured from her phone is also supportive of the suggestion of coercive and threatening conduct by the applicant.
(e) For example it is alleged by TVD that on 29 November 2017 the applicant exchanged a number of text messages in which the applicant threatened her in response to her making a statement to the police. The messages included:
U no I'm fuked yeh I'm doing yrs n I don't give a fuk if u show who ever this yeh but if my mum dies while I'm locked up coz of u doing this to me word il get out n spend the rest of my dog life hunting u to find u n kill u n I swear on my mothers eves
[…]
Fuk this yeh word u think u can just do this to me do u well u not going to fix it then I mite as well do my worst true
[…]
Wat do I have to loose now dumb cu t
[…]
I don't care dog they already knocking on the door n u think ur sending me to jail for how many years n there's not a decent bone in ur body to make u stop n not to go thru with it u think ur safe there I would run like the wind n move ur DAD awav as well u dumb fuk
[…]
Ur dead dog u won't fix this well then it's all or nothing now for me u dumb fuk
Lol I'm cuming straight for u cunt
Having regard to all of the above, while the matter is finely balanced, I consider that the applicant has met the threshold of exceptional circumstances through a combination of factors. Those factors are: the death of his mother whilst he was in custody and deferral of her funeral until he is released, the likely delays in this matter proceeding to trial, the legitimate criticism levelled at aspects of the prosecution case, and the overall delays in this matter being prosecuted[34] which are not attributable to the applicant. Whilst it is possible that future putative delay could result in him spending more time on remand than his likely sentence, this is not a factor that can be confidently predicted. I note there are factors that detract from the matters relied on as exceptional circumstances but on balance, I consider the applicant has met the threshold, albeit by a very slim margin.
[34]It is now three years since the alleged offences.
Is the risk of releasing the applicant on bail unacceptable?
The applicant’s case for bail becomes very tenuous when an assessment of risk is made pursuant to s 4E of the Act. I am satisfied by the respondent that there is an unacceptable risk that that he would endanger the safety or welfare of a person, commit offences on bail, interfere with a witness (TVD), or fail to answer bail.
The applicant appears to have threatened TVD with repercussions if she maintained her complaint. This alleged behaviour matches an allegation made by the complainant in the Davies charges.
Of even greater concern to an assessment of the applicant’s bail prospects is that whilst on bail for the Page charges, the applicant assaulted SK causing injury to her, whilst in breach of an IVO aimed at protecting SK. He was also on CCO at the time of that offending.[35] He then verbally pressured SK not to go to police, and abused and coerced her via text messages in the days that followed the incident. Further, the fact that the applicant’s attack on SK was interrupted by two witnesses, rather than him ceasing on his own, is of great concern. This pattern of coercive behaviour does not augur well for the applicant’s ability to avoid engaging in violent and manipulative relationships if granted bail, and gives rise to a real risk that he would breach bail by reoffending in a violent manner against a member of the public or by attempting to contact TVD to dissuade her from testifying against him.
[35]See Prior History annexed to Affidavit in Support at ‘AF-4’, that CCO having been originally put in place on 24 October 2018, and then confirmed on 1 May 2020.
I am also persuaded that the applicant’s poor history of complying with court ordered sanctions makes it difficult to have confidence in the proposal of containment by a CCO or bail conditions. Whilst Ms Ramsay’s offer of residence, supervision and support is sincere and well-meaning, I am not persuaded that even in combination with a CCO and bail conditions, it would be effective in restraining the applicant from breaching bail in the ways referred to by the respondent. It appears that the applicant was on a CCO at the time of the alleged offending against TVD.
Although the applicant has only two convictions for persistent breach of a FVIO, I note that the second incident against MD was committed after he had previously been imprisoned for family violence against her, and during the operation of a FVIO put in place for her protection. I acknowledge that those offences occurred some years ago, but it is concerning that periods of imprisonment and court orders do not appear to have deterred the applicant. I also note that the applicant has been the subject of some 16 FVIOs against him in the past suggesting a concerning risk scenario for family violence.
Because the allegations in the present case involve family violence offences, the Court must consider whether – if the applicant were released on bail – he would pose a risk of committing family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.[36] As detailed above, the applicant is currently subject to three active FVIOs. Preventing family violence in the community can be difficult because victims are often reluctant to come forward and/or may be easily dissuaded from pursuing complaints. I am not convinced that FVIOs or additional bail conditions will be sufficient to mitigate the risks the applicant poses not only of committing further family violence but also of trying to dissuade TVD from proceeding with her complaint.
[36]The Act, s 5AAAA(2).
Given the applicant’s poor history of compliance with previous bail orders, CCOs, and other court orders, his family violence history committed against different partners and his persistent drug use and offending, I am not satisfied that the risks he poses can be sufficiently ameliorated with conditions on bail.
The applicant has suffered from long term drug dependency and has been locked in a cycle of offending for many years. His expressed desire to turn over a new leaf is as yet untested in the general community. It will require a great deal of effort on his behalf and heavily structured rehabilitation in order to be effective. The applicant’s most recent conduct whilst on bail shows that despite the fact that the applicant was awaiting court for the Page and Davies charges he was prepared to engage in conduct towards SK very similar in nature to that which is alleged by TVD. As such, I judge him to be an unacceptable risk of endangering the safety or welfare of a person or of committing an offence while on bail or of interfering with a witness (TVD) or of failing to answer bail.
Bail is refused.
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