Bail application of ML
[2022] VSC 76
•22 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0022
| IN THE MATTER of the Bail Act 1977 | |
| v | |
| IN THE MATTER of an application for bail by ML | Applicant |
---
JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2022 |
DATE OF RULING: | 22 February 2022 |
CASE MAY BE CITED AS: | Bail application of ML |
MEDIUM NEUTRAL CITATION: | [2022] VSC 76 |
---
CRIMINAL LAW – Bail – Applicant is a Yorta-Yorta man – Longstanding drug addiction – Family violence offending – Availability of culturally appropriate residential rehabilitation – History of offending whilst on bail and Community Corrections Orders – Whether Exceptional Circumstances made out – Whether unacceptable risk – Bail granted with conditions – Bail Act 1977 ss 1B, 3A, 3AAA, 4AA, 4E(1)(a), 5AAAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Hooper | Victoria Legal Aid |
| For the Respondent | Ms A Buzo | Victoria Police |
HER HONOUR:
Introduction
The applicant, Malcolm L, is a 48 year old man of Aboriginal descent. On 28 December 2021, Malcolm L was arrested and remanded on the following charges:
(a) Where the informant is Senior Constable Ashley(‘first Ashley matter’):
(i) Charge 1: Contravene family violence intervention order (‘FVIO’) on 10 November 2021 contrary to s 123(2) of the Family Violence Protection Act 2008 (‘FVP Act’).
(b) Where the informant is Amy Masunu, Community Corrections)(‘Masunu matter’):
(i) Charge 1: Contravene Community Corrections Order (‘CCO’) on 12 and 18 November 2021.
(c) Where the informant is again Senior Constable Ashley (‘second Ashley matter’):
(i) Charges 1 – 3, and 7 – 10: Contravene FVIO on 22, 23, 24, 25, 26, 27, and 28 December 2021 contrary to s 123(2) of the FVP Act;
(ii) Charge 4: Recklessly cause injury on 24 December 2021 contrary to s 18 of the Crimes Act 1958;
(iii) Charge 5: Assault by kicking on 24 December 2021 contrary to s 24(1) of the Summary Offences Act 1966;
(iv) Charges 6 and 11: Aggravated assault of female on 24 and 28 December 2021 contrary to s 24(1)(a) of the Summary Offences Act 1966;[1]
[1]Charge 11 appears to list the incorrect section of the Summary Offences Act 1966.
(v) Charge 12: False imprisonment (common law) on 28 December 2021;
(vi) Charge 13: Persistent contravention of FVIO causing apprehension of fear between 22 and 28 December 2021 respectively, contrary to s 123A(2) of the FVP Act; and
(vii) Charge 14: Persistent contravention of FVIO between 22 and 28 December 2021 contrary to s 123A(1) of the FVP Act.
It appears that in respect of the second Ashley matter, there are a number of charges that are laid as alternatives.
The applicant was refused bail in the Shepparton Magistrates’ Court on 24 January 2022. The above matters are all listed on 1 March 2022 at the Shepparton Magistrates’ Court. The Ashley matters are listed for Contest Mention and the CCS matter is listed for a breach hearing.
In addition to the submissions made before me at the hearing, I have read and considered the written submissions filed by the parties, and their affidavits and other materials tendered by the respondent.[2]
[2]Written Submissions on behalf of the Applicant dated 17 February 2022 (‘Applicant Submissions’); submissions on behalf of the Respondent dated 17 February 2022 (‘Respondent Submissions’); affidavit in Support of Bail sworn by Kristina Kurtija on 3 February 2022; and affidavit in Response to an Application for Bail sworn by Peter Murphy on 14 February 2022; colour photographs of the complainant’s injuries and medical records of the complainant from Nixon Street Medical Centre.
Summary of offending
Ashley matters
Both sets of charges where Ashley is the Informant relate to Malcolm L’s contact with Denise P, in breach of the FVIO issued on 6 August 2021 by the Shepparton Magistrates’ Court. That Order was served on Malcolm L on 30 August 2021 while he was in police custody at Shepparton Police Station.
Before referring to the current charges it is useful to provide some of the background as to the applicant’s recent encounters with Denise P, the police, and the family violence orders imposed on him relating to Denise P.
Information attached to the informant’s report reveals that on 3 July 2021, the applicant is alleged to have found a wallet on the nature strip in Corio Street, Shepparton, while in company with Denise P. The applicant took the wallet and went to Liquorland with Denise P and purchased a large quantity of alcohol with a credit card from the wallet. Further purchases were made at other stores. The applicant and Denise P were both charged with multiple offences arising from these events.
On 31 July 2021 a Family Violence Safety Notice was served on the applicant naming Denise P as the protected person and prohibiting Malcolm L from having any contact with her. At 9.08pm the same day Denise P sent three text messages to the applicant ‘as a means of venting’. The applicant responded via text (in breach of the safety notice) and it seems that further text messages were exchanged. Some of the messages the applicant sent appear to have been abusive messages to Denise P. Further, on 4 August 2021, the applicant encountered Denise P in a public street where she was in company with Darren D. The applicant yelled abuse at one or other of Denise P and Darren D. Later, he sent further abusive and threatening text messages to Denise P. Further text messages were sent between this date and 8 August 2021.
I should interpose here that evidence was received from the informant in the current hearing to the effect that Darren D had himself been subject to an interim FVIO in which Denise P was the AFM and Darren D was the respondent. Darren D is known to police. The order against Darren D expired on 28 June 2021.
As mentioned, on 6 August 2021 a final FVIO was issued by Shepparton Magistrates’ Court in favour of Denise P, against the applicant.
On 30 August 2021 the applicant is alleged to have attended Denise P’s address, breaking in her door, threatening to kill her and kicking her in the leg. Denise P was not injured but her property was damaged. This conduct was in breach of the Family Violence Safety Notice. The FVIO that had been issued on 6 August was served on him that day at the police station in Shepparton.
On 7 September 2021, in the Shepparton Magistrates' Court, the applicant was sentenced to a combined disposition of three months' imprisonment (including for family violence offending against Denise P during August 2020, as detailed above)[3] to be followed by an 18 month CCO, imposed for being found guilty of breaching a pre-existing CCO by non-compliance and further offending. The pre-existing CCO was varied so that it would re-commence after his release from custody on 10 November 2021. According to information provided by the informant, prior to his release the applicant underwent a drug and alcohol assessment. He told the interviewer at that time that when he got out of prison he intended to party for two weeks and would be back with Denise P.
[3]Which resulted in charges of: Persistent Contravention of a Family Violence Safety Notice, Make Threat to Kill, Unlawful Assault, Contravene Family Violence Safety Notice and Committing Indictable offence whilst on bail (2). He was also charged with intentionally causing criminal damage to the car of an acquaintance.
Ashley matters
Regarding the first Ashley matter, it is alleged that:
(a) On 10 November 2021, Malcolm L was released from prison after serving the abovementioned 3 months imprisonment. That same day, the applicant and Denise P checked into a hotel in Kialla at around 2:17pm. Police were alerted and attended the hotel, but could not locate Malcolm L or Denise P, although their belongings were seen in the room they had checked into. It is noted in the informant’s report that the applicant and Denise P attended the hotel reception with two other males and that Denise P was carrying several bags of belongings. The applicant had told staff he would pay for his girlfriend’s accommodation. It appears that the applicant and Denise P remained in each other’s company for the night, eventually going to Mooroopna, and Denise P left a bit later and went to stay with a friend in Shepparton. The police had CCTV which showed that both the applicant and Denise P were at the hotel that day.
(b) Denise P was spoken to by police numerous times about whether she was with the applicant. Denise P denied any contact with the applicant, stating she was staying with her parents. Her parents denied this. Denise P refused to make a statement against the applicant. Nevertheless, the applicant was charged with breaching the FVIO in relation to being in company with Denise P. At a later stage, in the statement that was taken following the second Ashley matter Denise P stated that she had in fact been associating with the applicant on 10 November 2021.
Masunu matter
After he was released from prison the applicant failed to attend his CCS appointment on 18 November 2021, and CCS were unable to contact him further. On 29 November 2021, a charge and warrant were issued against Malcolm L for contravening the CCO. Ms Masunu of CCS in her breach report dated 24 November 2021 notes the previous contravention report that was filed in relation to the CCO breach heard on 7 September 2020. She notes that during that order Malcolm L had presented to CCS appointments under the influence, and was aggressive towards staff.
Ms Masunu notes that during a transitional appointment with Malcolm L in September 2021, he was dismissive of the CCO on his release, hostile, and irritated. He minimised his criminal history and his drug use. He expressed loving drugs and told the CCS worker that using drugs is how he copes with life. He was not prepared to discuss using medications for his bipolar disorder but he admitted having the diagnosis. During a further transitional appointment he said he would continue using drugs on his release and would continue his relationship with Denise P. His first induction appointment after his release on 11 November 2021 had to be rescheduled to later in the day due to Malcolm L feeling unwell. He attended in the afternoon and admitted to having used drugs. He reported that he planned to party all weekend and that Denise P had been to see him the night after he was released from prison. The appointment was terminated due to him being substance affected. He did not attend his further appointment on 18 November 2021 and thereafter could not be contacted. Ms Masunu assessed Malcolm L as unsuitable for a further community-based disposition, recommending he be re-sentenced on the original offences.
Regarding the second Ashley matter:
(a) Denise P’s 28 December 2021 statement alleges:
‘I didn’t see or hear from [the applicant] until about 6 days ago when I was in Shepparton near Rebel on Wyndham Street.[4] I was walking along and [the applicant] came out of Rebel and we had a short chat and [the applicant] wanted me to come along with him.’
[4]Said to be 22 November 2021.
(b) She alleges that she felt she had to go with him, and that she stayed with him at his friend Jay’s house, for two nights but that:
‘[…]he started to get quite violent and was constantly yelling “you’re a slut”. …and other tangents that he went off on.’
(c) She alleges:
‘When he was saying these things he was really angry and not right, I made sure I yelled back at him to make him know it wasn’t right and didn’t make me feel good.’[5]
[5]Charges 1 and 2 – Contravene FVIO on 22 and 23 December 2021.
(d) She states that from there they went to another man’s flat and stayed there from Christmas Eve onwards. During the day, they went to the shops together and she told the applicant that wanted to go to South Australia on Boxing Day. He was unhappy about this and ‘started threatening me and being angry towards me and lashing out at me because of what I said.’
(e) That same day, Malcolm L and Denise P went for a walk to purchase drugs. On the way back, Malcolm L began verbally abusing Denise P. She hit him in the face, and in response he punched her to the left side of her head and on her ribs. She fell to the ground and it is alleged that he kicked her to the back of the head three or four times, and punched her to the head. He then ceased and assisted Denise P to her feet. She threatened to phone police, but he begged her to stay, and she agreed to stay fearing his response if she did not stay with him. Malcolm L continued to verbally abuse her as they walked away, believing he had lost his drugs. She alleges:
‘I had a go at him for all the abuse I just copped when he had he drugs with him the whole time. Because I was being so loud [the applicant] punched me again in the mouth on my left side of the jaw …. Malcolm stopped me from leaving by calming right down and saying everything was going to be okay.’[6]
[6]Charge 3, contravene FVIVO, Charge 4 – recklessly causing injury, Charge 5 – assault by kicking, and Charge 6 – aggravated assault of a female.
(f) Denise P and Malcolm L remained together in the flat for the next few days. Denise P alleged that although she was not physically prevented from leaving she felt unable to do so. She alleges that Malcolm L was intermittently verbally abusive during this time.[7]
[7]Charges 7-9 (inclusive) – contravene FVIO on 25, 26 and 27 December 2021.
(g) At around 2:00am on 28 December 2021, Denise P awoke to Malcolm L accusing her of sleeping with another man. She attempted to leave but the applicant responded by grabbing her throat. She alleges he squeezed her throat on three occasions before she managed to get free and go for help. She went to Darrell D’s house and police were called. Police attended the same address that Denise P had just left and arrested Malcolm L on the above matters and an outstanding warrant in relation to the first Ashley matter and a warrant that had been issued for Breach CCO.[8]
[8]Charge 10 – Contravene FVIO on 28 December 2021, Charge 11 – aggravated assault of a female, Charge 12 – unlawful imprisonment on 28 December 2021.
(h) Denise P declined medical treatment when in company with police on 28 December 2021, despite their offer to take her to the hospital. She told the informant she did not think she needed any assistance. Colour photographs taken by police were tendered during the hearing but it was somewhat difficult to interpret the photographs by reference to complaints of injuries without the benefit of medical evidence. On 3 January 2022, the complainant attended Goulburn Valley Health for assessment. No satisfactory explanation was given for the delay in obtaining a medical assessment. Denise P complained of ongoing pain in her left jaw and swelling was noted over her left jaw joint, though she had a good range of movement. She also complained of pain around her left scapula, but no obvious bruising was noted. She was referred for chest and shoulder x-rays and a facial CT scan. Those tests were performed on 6 January 2022. No fractures were noted in the x-ray report. There were degenerative changes to the left temporomandibular joint.
(i) Dr Oluremi Kehinde from Nixon Street Medical Centre provided a medical certificate dated 4 February 2022 that stated she had ongoing pain in the left jaw and persistent temporomandibular joint dysfunction due to an assault on 24 December 2021.
(j) The notes of Indication for a CT scan included reference to the complainant having been assaulted, having left TMJ pain and left periorbital haematoma. The report does not refer to any visible marks on the complainant’s neck relevant to her complaint of her neck being squeezed. The informant did not claim to have seen marks on her neck at any stage. Whether any marks or bruises could be expected based on her account of what happened may ultimately turn on expert medical evidence which is not presently available.
(k) The applicant has remained in custody since his arrest on 28 December 2021, being a period of a little under two months.
Applicable law
In applying and interpreting the Act, the Court is to have regard to the guiding principles set out in s 1B(1) of the Bail Act 1977 (Vic) (‘The Act’).[9] This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, whilst also taking into account the presumption of innocence and the right to liberty.[10]
[9]The Act, s 1B(2).
[10]The Act, ss 1B(1)(a) and 1B(1)(b).
Step 1. Exceptional Circumstances
Because the applicant is accused of a Schedule 2 offence[11] which is alleged to have occurred during the period that he was serving a CCO for another Schedule 2 offence,[12] bail must be refused unless he satisfies the Court that exceptional circumstances exist that justify the grant of bail. In making this determination, the Court must have regard to the surrounding circumstances, pursuant to s 3AAA of the Act including the matters listed therein. Section 3A of the Act also requires the Court to take into account any issues that arise due to a person’s Aboriginality.
[11]Persistent contravention of a FVIO. See the Act, sch 2, item 19.
[12]Committing an indictable offence while on bail. See the Act, sch 2, item 30.
Step 2. Unacceptable Risk
Even where the Court is satisfied that exceptional circumstances exist, the Court must refuse bail if the respondent discharges the burden of establishing a risk that if released on bail,[13] the applicant would engage in any of the conduct captured by s 4E(1)(a) of the Act, and that the risk is unacceptable.[14]
[13]The Act, ss 4D(1)(b), (3).
[14]The Act, ss 4D(1)(b), (2).
Under s 4E(3) of the Act the Court is again directed to take into account the ‘surrounding circumstances’. The Court must again give consideration to s 3A in weighing the risk and in considering whether any conditions of bail could mitigate risk so that it is not an unacceptable risk.
Section 3A was added to the Act in 2021, in response to recommendations from the Victorian Law Reform Commission. In the second reading speech for the amending act,[15] the responsible minister stated that ‘the VLRC noted that Aboriginal Australians are overrepresented on remand and face unique disadvantages in their contact with the criminal justice system…’.[16]
[15]The Bail Amendment Act.
[16]Victorian Law Reform Commission, Review of the Bail Act: Final Report (2007), cited by Bell J in Re SE.
Family violence consideration
Section 5AAAA(1) of the Act requires the Court to make inquiries of the respondent as to whether there is a FVIO, family violence safety notice or another recognised domestic violence order in force against the applicant. Further, because Malcolm L is charged with family violence offences, the Court must consider whether, if he were released on bail, there would be a risk that he would commit family violence, and if so, whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.[17]
[17]Ibid s 5AAAA(2).
The respondent has informed the Court that the following FVIOs are currently in place where Malcolm L is listed as the respondent:
(a) As mentioned above, there is a current, final FVIO in place for the protection of Denise P. It prohibits Malcolm L from having any contact with her, except through a lawyer or mediator. It expires on 5 August 2022.
(b) There is a current, final FVIO in place for the protection of Rebecca D. It was made on 17 August 2020 and prohibits Malcolm L from having any contact with her. That Order expires on 16 August 2022.
Delay and COVID-19
Potential delay in the current charges being finally determined is a relevant consideration especially in light of court backlogs as a result of the COVID-19 pandemic. This gives rise to consideration of the principles expounded by Beach JA Re Diab.[18]
[18][2020] VSC 196, [38].
The applicant’s personal circumstances
Much of the detail about the applicant’s personal background can be gleaned from the report of a psychologist Warren Simmons dated 9 February 2022. Malcolm L is a 48 year old Yorta-Yorta man. He was born in Shepparton but grew up in Footscray, Heidelberg West and other Melbourne suburbs. His early life was somewhat unstable before his family settled in Yarraville.
Malcolm L’s parents separated when he was around 6 years old. After the separation, Malcolm L’s father left the family. Malcolm L estimates he saw his father about ten times growing up. His father is now 68 years old and has a history of incarceration. However, Malcolm L developed strong ties to extended paternal family, including his grandmother who instilled in him a strong sense of culture. He also had strong relationships with his maternal grandparents who were based in Shepparton. His mother had re-partnered when Malcolm L was eight years old. He had a good relationship with his step-father. His mother was a strict woman, though Malcolm L recalls having everything he needed growing up. Malcolm L grew up with a younger brother and a younger half-brother. He was not close with his half-brother, but very close with his other brother.
When he was seven, Malcolm L was involved in a car accident and he sustained a fractured skull. He reported experiencing migraines and black outs until the age of 13. Mr Hooper for Malcolm L submitted at the hearing that ongoing neurological impairment could be investigated by health practitioners if Malcolm L is released on bail, as suggested in Mr Simmons’ psychological report.
Regarding education, Malcolm L attended four different primary schools due to his family moving frequently. He experienced bullying from grades 3 to 5. He attended Footscray Technical School and his behaviour began to deteriorate. He fought with peers, truanted and his marks decreased. He ceased his schooling in year 10. He had several different jobs over the years including working for the local council and fruit picking from the late 1990s to the early 2000s. Since 2010, he has received a Disability Support Pension.
Malcolm L’s mother died in 2009 at the age of 55. Malcolm L’s father continues to live in Shepparton and is currently unwell. His step-mother continues to live in Footscray and his grandmother is deceased.
Malcolm L’s brother suicided in 2018 and Malcolm L was very deeply affected by this loss. He has hopes of assisting his brother’s wife and children upon his release.
He has not been married but has three adult children and four grandchildren. At age 17, he commenced a relationship with Shannon. They were together for two or three years. They had two children together who are now in their late 20s. He has regular contact with his son Jason but no contact with his daughter Ashley. He had only sporadic contact with his grandchildren at the time of his arrest. Mr Hooper conceded that, as set out in the informant’s report, past relationships have often tended to result in difficulties for Malcolm L.
Malcolm L has experienced homelessness for much of his adult life. He spent time living in Shepparton in his 20s. Prior to his remand he was residing in temporary accommodation in Mooroopna.
Regarding his drug and alcohol history, substance abuse has been a constant challenge for Malcolm L. He drank alcohol daily between 1989 and 2016, and at the peak of his alcohol abuse, he consumed two bottles of spirits per day. He cut back his drinking in 2015 following the death of a childhood friend. Prior to his remand he was consuming two cans a day. He used cannabis in his teens and commenced using intravenous amphetamines at age 13, using that drug weekly until about 1987. He had a year of abstinence and then relapsed in 1988. Intermittent amphetamine or methamphetamine use has continued until his recent remand, usually consuming two or three points per day. He previously was also a user of heroin but the death of his brother prompted him to cease his heroin use.
Regarding his mental health, Malcolm L was diagnosed with bipolar disorder in 2010. He was prescribed Lovan and Epilim. He reported the medication had a positive impact on him and he felt more stable at that time. After two years, he ceased Epilim finding it interfered with his daily life. He is now prescribed Lovan. He has reported low motivation and mood at times but does not experience any feelings of hopelessness or suicidal ideation.
The applicant attempted the Galiamble program in 2010. He spent 40 days in the program before being drawn away by peers who were contacting him offering him drugs.
Criminal and bail history
The applicant has a criminal history in Victoria spanning between 1994 and 2021. It includes dispositions for various offences, including theft, public drunkenness, using obscene language, resisting police, offences against the person and numerous property, driving and dishonesty offences, bail offences and breaches of FVIOs and CCOs. More serious convictions include possessing a controlled weapon, threat related offences and one prior matter for recklessly causing injury. The three month sentence imposed in September 2021 is only his second term of imprisonment and is the longest prison term he has served to date. Before that, he had served 14 days in 2019 for some thefts.
Applicant’s contentions in support of bail
The applicant relies on a combination of the following matters to establish exceptional circumstances:
(a) Strength of prosecution case: In relation to the Ashley matters, Malcolm L will admit he was with Denise P in breach of the FVIO by associating with her, but otherwise contests many of the more serious allegations or aspects of the charges. Mr Hooper noted that the strength of the prosecution case in respect of the Ashley charges depends heavily on the credit of the complainant. He pointed to inconsistencies in some of the surrounding evidence that did not appear to fully support Denise P’s account such as the lack of evidence of serious injuries and the statements of neighbours from nearby premises that the applicant and Denise P were occupying at the relevant times. Mr Hooper submitted that contrary to the submission of the respondent the Court is not required to take the prosecution’s case at its highest.[19] Instead he submitted that the correct approach was to have regard to the strength of the prosecution case as required by s 3AAA(1)(b) of the Act, along with other relevant surrounding circumstances and other statutory provisions contained in the Act. It was also important to give weight to the guiding principles of the Act set out at s 1B upholding the presumption of innocence and the right to liberty. I accept that submission.
[19]Although some judges have in the past referred to the Court being entitled to take the prosecution’s case at its highest in bail applications, it has also been considered wise to exercise caution in the evaluation of the strength of the prosecution case so as to ensure the bail decision maker does not usurp the role of the ultimate trier of fact. The full details of relevant evidence may not be known at the time of a bail application. It is now clear from the wording of the Act at s 3AAA(1)(b) that the strength of the prosecution case is one factor to be considered alongside other surrounding circumstances in the determination of an application for bail. See: Re Application for Bail by Zreika [2020] VSC 648; Re Vucak [2009] VSC 167 , [22],[29] (Kaye J); Re Scott [2011] VSC 187, [20], [26] (Kaye J); Re Scott [2011] VSC 674, [15] (T Forrest J); Andreevski v The Queen [2009] VSC 115, [10] (Coghlan J); Re Gloury-Hyde [2018] VSC 393, [34]-[35] (Priest JA). Cf Re Ghanim [2019] VSC 358, [37] (Lasry J); Re Sheen [2015] VSC 486, [20] (Priest JA); DPP v Ghiller [2000] VSC 435, [43].
(b) Special vulnerability: Mr Hooper also highlighted Malcolm L’s Aboriginality as an important matter for the Court to consider in light of the background of hardship that is evident from the material before the Court.[20]
[20]Citing: Re Kennedy [2020] VSC 186; see also: HA v the Queen [2021] VSCA 64.
Also, that Malcolm L suffers from poor mental health and has previously been diagnosed as having bipolar disorder and depression. His mental health has been exacerbated by longstanding drug and alcohol use. The Simmons report details Malcolm L’s background, including his upbringing and family structure, education and employment history, past relationships, substance use and medical and psychiatric history detailed above. Malcolm L disclosed a past history of social phobias and anxiety and that drug use helped him to cope with his social anxiety. He has not been on any consistent medication regime since his initial prescription after his 2010 diagnosis. If bail were to be granted Mr Simmons recommended that the applicant should engage with a psychiatrist for psychiatric review as well as a psychologist to work on strategies for him to manage his social anxiety, and to explore his response to the death of his brother and his desire to contribute to his sister-in-law's life. Because the applicant's drug-use has historically been a form of self-medication for social anxiety, it was Mr Simmons' opinion that drug and alcohol counselling will not be effective until these underlying issues are addressed through psychological work.[21] Mr Simmons also recommends that the applicant be referred to a neuropsychologist to look into possible cognitive deficiencies. Mr Simmons believes it is an opportune time for the applicant to engage in such assessments while he is substance-free.
[21]Warren Simmons report, [34].
(c) Availability of treatment: There is a bed available to Malcolm L at the Ngwala Willumbong Aboriginal Corporation's Galiamble Men's Recovery Centre ('Galiamble') in St Kilda. The Court of Appeal has in the past recognised that the availability of treatment is capable of amounting to exceptional circumstances.[22] Galiamble runs a 16-week residential treatment program comprising of various individual and group therapies and courses. Amy Paten, intake coordinator at Galiamble, conducted Malcolm L’s intake assessment, and has confirmed the applicant's acceptance into the program.[23] If bailed, Galiamble staff would collect Malcolm L from prison and take him directly to Galiamble in St Kilda.
[22]Citing: Robinson v R [2015] VSCA 161; Re Jiang [2021] VSC 14.
[23]Most recently in her letter dated 18 February 2022.
(d) Damian Zylstra, Alcohol and Other Drug Team Leader at Galiamble gave evidence at the hearing before me on 21 February 2022. His manager, Damien Kennedy was present with him and also gave further information at times. Mr Zylstra told the Court that Galiamble offer psychological counselling (provided by external practitioners), mindfulness, anger management and men’s behaviour change programs in addition to Alcoholics and Narcotics Anonymous programs (‘AA’ and ‘NA’). All workers at Galiamble are registered Drug and Alcohol counsellors. Malcolm L would have his own room at Galiamble. All bedrooms open out onto a shared lounge where there also a small kitchenette. The program commences at 8.00am and concludes around 5.00pm each day. There are additional AA and NA meetings on Monday evenings. Men’s behavioural change meetings are offered in the evenings. Residents usually attend three to four programs per day which range from between half an hour to two hours each. Mr Zylstra explained that outside of those hours, residents can engage in their own activities. There are also Aboriginal art and artefact-making workshops, (such as didgeridoos) and a stall at St Kilda market each Sunday is available for residents to sell their wares. There are also regular meetings where residents can raise any cultural issues and there are fortnightly cultural outings. Mr Zylstra confirmed that Galiamble can arrange for services to assist residents to deal with childhood trauma and grief. Mr Zylstra was not aware of Malcolm L’s bipolar diagnosis before attending Court, however, he gave evidence that psychiatric services could be arranged for Malcolm L during the program, in line with Mr Simmons’ recommendations. Malcolm L would be assessed by a general practitioner on his arrival and thereafter weekly appointments with the GP are available.
Mr Zylstra was not working at Galiamble in 2010 when Malcolm L was last there and he was not aware of the details of that residency. However, he noted that the program has been completely re-worked in the past 12 months, and so the current program is completely different to what it would have been in 2010 program. He confirmed there were rules and expectations at Galiamble and residents are told that the program must be taken seriously. They are also told there is a long wait list for the facility and a resident must show respect to the Aboriginal community that has created the program, by committing fully to it. Upon their arrive all residents sign an agreement that they will participate in all programs. If they do not, they are not admitted into the program.
If residents disengage from some or all programs, staff discuss this with them at the first instance, but if there is continued refusal, they are exited from the program. If the applicant were bailed to Galiamble and were then exited for non-compliance, Galiamble staff would notify the informant immediately. Mr Zylstra confirmed that in addition to non-compliance, Malcolm L would be exited if he failed any drug screens or breached any other conditions of bail or any of the house rules. Mr Zylstra undertook to notify the informant of any such non-compliance. On cross-examination, Mr Zylstra was asked whether residents receive warnings before being exited. Mr Kennedy was in a better position to answer, and he told the Court that the approach to non-compliance depended on the individual resident’s circumstances. However, there would ordinarily be one meeting between residents and managers to discuss the issues, and then the resident would be exited if non-compliance continued. Mr Zylstra said any resident found to be bringing drugs into the facility would be exited immediately.[24]
[24]This had never occurred during his two years at Galiamble.
Mr Zylstra explained that outside of the scheduled program hours, residents can leave the facility for short periods. Any longer period of leave must be pre-approved by a manager. Whether a resident would need permission to leave for a brief time would be dependent on the conditions of their residency and/or their compliance with the program. If they do leave the premises, all residents must sign in and out via a book at the entry to the facility. If a resident did not return as expected, that would be reported to the relevant authorities. The facility has two entry and exit doors which are monitored by CCTV at all times (but that footage is only reviewed when needed). Between 7.00am and 10.00pm, the CCTV cameras are staffed intermittently. Mr Zylstra confirmed there are no staff manning the entry/exit doors, and they are only locked to outsiders overnight. Mr Zylstra conceded that if a resident left during the night, it is possible that their absence might not be noticed until the following morning. The night manager’s shift commences at 7.00am, and there is currently no staff member on standing duty overnight.[25] However, Mr Zylstra confirmed that residents do not regularly leave without permission, and it is rare that someone on stringent bail conditions would leave.
[25]Galiamble are in the process of hiring a standing, overnight worker who would be on duty overnight.
Residents are permitted to have a mobile telephone and their communications are not monitored. Those phones are sometimes useful as staff may contact residents to check on their movements.[26] Mr Zylstra told the Court that if they became aware a resident was communicating with someone outside the program on their phones regarding obtaining drugs, they would discuss that with the resident.
[26]However, Galiamble staff would confiscate a phone from Malcolm L if it were a condition of a bail that he not have one.
Regarding visitors, residents must obtain permission to have visitors and Mr Zylstra confirmed staff must approve all visitors first. Mr Zylstra has observed residents reconnecting with family they have been estranged from for years as a result of engaging in the program.
At present, Mr Zylstra estimated that between 40 to 50% of current residents are on bail. Of the persons on bail at Galiamble, Mr Zylstra estimated that around 90% of persons successfully completed the program.
Mr Zylstra explained that staff perform weekly drug testing in addition to further random drug testing every week. Drug screen results could be provided to the informant if required. On cross-examination Mr Zylstra explained that on entry to the program residents’ bags are fully checked. Mr Kennedy confirmed that if residents did show signs of drug taking or improper behaviour during the program, their rooms would be checked, with their consent. Mr Kennedy conceded that staff could not search residents themselves or their belongings without the resident’s consent.
Mr Zylstra explained that after completion of the program, Galiamble provides assistance with housing and assigns residents a transitional worker. On cross-examination Mr Zylstra conceded it can take some months to arrange suitable housing for residents after they complete the program. In the meantime, the resident can remain at Galiamble beyond the expiry of the program by arrangement. Mr Kennedy offered further information and explained that most people leaving Galiamble had some housing to go to whether it was with family or to housing that Galiamble have assisted them to organise. Galiamble also offers health and dental services to residents after they have left the program. Galiamble staff will also liaise with resident’s family if they are in contact to assist with the transition out of the program.
Mr Hooper submitted that Malcolm L is capable of positively engaging with therapeutic interventions, noting that a progress report from the Court Integrated Services Program ('CISP'), dated 27 January 2021, details the services and programs he was referred to through CISP. While Malcolm L’s participation in those programs fluctuated, CISP staff emphasised the importance of taking a flexible approach towards the applicant focusing on overall treatment gains and building long-term meaningful engagement with him.
As to the Malcolm L’s willingness to participate in the Galiamble program, Mr Hooper pointed out that Malcolm L was required to complete a 14 page questionnaire for his intake into Galiamble and must have showed a modicum of insight in doing so, having been found suitable for Galiamble. Mr Hooper has had regular contact with Malcolm L in the lead up to the bail application and he indicated to the Court that the applicant has continued to express his willingness to enter Galiamble. Mr Hooper highlighted that treatment would address Malcolm L’s risk factors both in the immediate term and the longer term, and that ultimately the community’s interests are best served by Malcolm L receiving this treatment.
(e) Delay and likely sentence: The applicant intends to contest the charges or aspects of them but could spend up to a year awaiting a contested hearing. Although the respondent has indicated dates may be available in August 2022, there is no certainty as to a date.[27] Depending on the degree of success of the prosecution case, it is possible that any sentence imposed could to exceed time spent on remand. Mr Hooper highlighted that the Court of Appeal has held that delay alone can amount to exceptional circumstances, but the prospect of remand time exceeding an ultimate sentence is a strong factor in favour of exceptional circumstances.[28]
[27]On the basis of correspondence from the Magistrates’ Court.
[28][2021] VSCA 64[61]. Mr Hooper also cited the case of Akoka v the Queen [2017] VSCA 214 with respect to how time in a residential facility could be taken into account similar to pre-sentence detention in some cases.
Regarding unacceptable risk:
(a) Bail History: Mr Hooper conceded that Malcolm L has a history of committing offences whilst on bail but submitted that the nature of such offending tended to be low range in seriousness.
(b) Residential Placement: The applicant relies on the availability of the place at Galiamble to overcome the respondent’s allegation of unacceptable risk. Mr Hooper submitted that the Galiamble placement mitigates risk to an acceptable level. Mr Hooper submitted that if his bail did extend beyond the Galiamble program, his instructors could seek a referral to CISP. Further, any risk to Denise P is further mitigated by the existence of the intervention order and the distance Galiamble is from the Shepparton region. Mr Hooper added that he has had extensive conversations with Malcolm L about the importance of not contacting Denise P and the serious consequences that are likely to follow any future contact.
Respondent’s contentions in opposition to bail
The application is opposed on the basis that the applicant has not demonstrated exceptional circumstances that justify the grant of bail, and is an unacceptable risk of each of the matters in s 4E(1)(a) of the Act.
The respondent submits as follows:
(a) Family violence intervention order in force: The applicant is currently the respondent to two final FVIOs, and has an extensive history of being made subject to family violence orders since 1993. Numerous family violence incidents involving different complainants have been reported to police over that time, varying in seriousness as detailed in the informant's report.
(b) Complainant's views on bail: The informant says Denise P fears Malcolm L being granted bail.
(c) Delay and likely sentence: The Shepparton Magistrates' Court advised that, subject to there being no issues with witness availability, a hearing in this matter could be accommodated in August or September 2022 (at the earliest). Working off this estimate, the respondent submits that, if the most serious charges against the applicant are proven, it would be open to the sentencing court to impose a custodial sentence exceeding any time spent on remand, particularly in view of the applicant's most recent custodial disposition.
Regarding unacceptable risk, the respondent submits as follows:
(a) Endangering the safety and welfare of any person: At the time of the alleged offending, the applicant had only just been released from prison after serving a sentence for charges including persistent contravention of a family violence safety notice and unlawful assault and make threat to kill regarding the 30 August incident involving Denise P and the earlier incidents in August. When interviewed before his release he planned to party and see Denise P. The informant referred to this conduct as showing that the applicant poses an unacceptable risk to the complainant, and members of the community generally, if he is released on bail. Ms Buzo for the respondent conceded that Malcolm L being bailed to Galiamble does take him away from the residential area where Denise P resides. But, she submitted he was likely to continue to make attempts to contact her regardless.
(b) Committing an offence while on bail: It was submitted by the respondent that the applicant’s compliance with court orders is poor, including most recently when on a CCO. Ms Buzo noted that the applicant’s charges include contact with Denise P immediately after being released from prison for family violence against her. Since prison had been not deterred the applicant from committing the current offences placement at Galiamble would not be a deterrent in the future.
(c) Interfering with a witness or otherwise obstructing the course of justice in any matter: The respondent believes the applicant will interfere with the complainant, as well other unspecified witnesses who have provided statements in the matter.
(d) Failing to surrender into custody in accordance with the conditions of bail: The applicant has a history of failing to answer bail and of breaching CCOs.
Consideration
Has the applicant established that exceptional circumstances exist to justify a grant of bail?
In considering whether exceptional circumstances exist, the Court is mindful of the importance of s 3A of the Act, and the lifelong disadvantage suffered by the applicant which appears to have impacted every sphere of his life. The applicant is a person who has a number of unresolved mental health concerns which need to be urgently addressed. The intervention of structured mental health support at his juncture in the applicant’s life appears crucially important to his long term rehabilitation.
Furthermore, it appears vital that an up-to-date psychiatric assessment be conducted to explore the currency of his past diagnosis of bipolar disorder and discover whether he is currently suffering from depression or other psychiatric disorder which requires more active management. It appears necessary to ascertain whether any such disorders are driving his ongoing substance abuse and offending, especially in view of the profound grief he continues to express as a result of his brother’s suicide.
Whilst the alleged family violence charges are on their face very concerning, the applicant contests several aspects of Denise P’s account and it appears that there may well be deficiencies in parts of the prosecution case. At this early stage it is premature for the Court to analyse the evidence in detail or make conclusive findings. I can only form preliminary views based on impressions, but my impression is that there may be some obstacles to be overcome by the prosecution in respect of some of the more serious allegations. Therefore, it is possible that the outcome of the charges may not necessarily lead to a disposition in excess of time spent on remand even if the case is able to be heard in the latter part of this year. This finding contributes to the combination of matters favouring a finding of exceptional circumstances.
Therefore, in combination with the abovementioned factors, I am satisfied that the exceptional circumstances hurdle can be overcome as a result to the proposal for the applicant to enter the proposed residential rehabilitation facility. I accept the evidence of Mr Zylstra, and the information from Mr Kennedy as cogent and credible. The residential rehabilitation facility at Galiamble would offer structured supervision and support and would reduce the risk of ongoing harassment or violence towards Denise P. Galiamble is situated far from Shepparton and the staff at Galiamble have undertaken to notify police if the applicant were to leave the program.
Has the respondent established that the applicant poses an unacceptable risk of engaging in any of the conduct set out at s 4E(1)(a) of the Act?
Whilst the applicant’s recent participation in a CCO was unsatisfactory, and his attitude to transition from prison to the CCO was poor, it appears likely that the applicant’s behaviour may be partly explained by an ongoing inadequately treated mood disorder and substance addiction. I accept that he did not complete the Galiamble program in 2010, but the applicant is older now and has been in prison for nearly two months. Whilst I acknowledge that he demonstrated very poor behaviour on his recent release from prison, including returning to the company of Denise L in breach of a FVIO, it is likely, based on information provided to the Court, that his attitude has improved since that time. I accept Mr Simmons’ opinion as to the psychological and psychiatric issues that need to be addressed with the applicant. It appears that since the recent death of his brother the applicant has been presenting with worsening mental health and substance abuse. I note that the CISP report mentions that Malcolm L acknowledged that his recent increase in substance use could be attributed to the loss of his brother and an attempt to self-medicate due to emotional distress experienced. A report prepared by Forensicare in conjunction with GV Health dated 4 February 2021[29] recorded Malcolm L as appearing distracted by complaints of tiredness, and as repeatedly describing himself as ‘being silly due to stress’, identifying long term homelessness, drug use and the recent death of his brother as factors influencing his behaviour and mental state.
[29]Part of Exhibit KK-6 to the Affidavit in Support of Bail.
It is encouraging that Malcolm L has been assessed as suitable for the Galiamble program. The apparently rigorous intake process appears to demonstrate that he does at least have some insight into his current needs and that he is willing to undertake the comprehensive program at Galiamble. Staff at Galiamble appear to have extensive experience dealing with people on bail providing an excellent opportunity for Malcolm L to address his personal issues. It is also encouraging that Malcolm L himself has expressed a willingness to engage in the program in his conversations with his lawyers, as Mr Hooper explained at the hearing.
It is to be hoped that the applicant will stabilise through transition from prison to the culturally-appropriate residential rehabilitation facility offered by Galiamble. Galiamble offers the opportunity for holistic assessment and treatment addressing mental health and behavioural dysfunction as well as intervention aimed at avoiding further criminal offending. Men’s Behavioural Change intervention should help him avoid future family violence offending. Further, again considering s 3A of the Act, Galiamble offers opportunities for residents to engage in cultural programs and discussions about cultural issues.
As mentioned above, Galiamble is located distantly from the Shepparton/Kyabram region so that if the applicant were to leave the facility, notification to police would be made and steps could be taken to alert the authorities in the Shepparton region. It is likely that the applicant could be quickly apprehended if he tried to return to the area and attempted to harass or approach Denise P. The Court was informed that the applicant’s legal representatives have taken pains to explain to the applicant that there would be serious consequences if he were to do this.
With the reduction of COVID related restrictions there should be an improved opportunity to provide the applicant with necessary structure and support at Galiamble, treating his poor mental health and helping him overcome his substance abuse. Galiamble offers wrap-around services to assist with both drug and alcohol treatment, as well as psychological and psychiatric treatment, so that his current diagnoses can be reviewed and his medication needs appropriately assessed. I accept the opinion of Mr Simmons that addressing Malcolm L’s underlying psychological and psychiatric needs is a prerequisite to properly addressing and treating his ongoing drug addiction. In turn, this will better enable him to deal with his outstanding criminal charges and work on improving his future prospects.
Accordingly, the placement at Galiamble is the best option to ensure Malcolm L’s long-term rehabilitation and will act to mitigate both the short and long term risks he might otherwise pose in the community.
I am not persuaded that the applicant poses an unacceptable risk in the ways propounded by the respondent if conditions of bail are fixed which include his entry into the Galiamble facility and otherwise restrict his movements whilst on bail.
Accordingly, I will grant bail with conditions.
---