Burge (a pseudonym) v Director of Public Prosecutions (Ruling)

[2024] VCC 1758

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

AARON BURGE (a pseudonym)	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HER HONOUR JUDGE MANOVA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2024
DATE OF RULING:	6 November 2024 (ex tempore)
CASE MAY BE CITED AS:	Burge (a pseudonym) v DPP (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1758

REVISED REASONS FOR RULING
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Subject:APPLICATION FOR BAIL

Catchwords:              Four charges of breach of supervision order – application for bail opposed by Director – compelling reason – unacceptable risk even if compelling reason made out

Legislation Cited:      Bail Act1977 (Vic), s3AAA, s4, ss4AA(2) and (3), s4C, s4D, s4E and Schedule 2, Item 28; Serious Offenders Act 2018 (Vic), s169 and s174(4)

Cases Cited:R v Renzella (1997) 2 VR 88; DPP v DW [2023] VSC 143; DPP v PT (No 2) [2024] VSC 160

Ruling:  Application refused.
Matter adjourned to 15 November 2024 at 10:30am for Plea and Sentence.
Accused remanded to the same date.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms B Proud	Robinson Gill Lawyers
For the Respondent	Ms R Barrett	Solicitors for the Office of Public Prosecutions

HER HONOUR:

Introduction

1The applicant is subject to a supervision order (“SO”) imposed by this court on 6 August 2020 for a period of five years. That order requires him to submit, from time to time, urine drug screens, to attend for supervision and treatment and to abstain from using drugs, amongst other conditions.

2The applicant has been on remand since 18 October 2024 in respect of four charges relating to contravention of the SO.

3There are also substantive charges which are currently before the Magistrates’ Court from which the contravene SO charges arise. They include two charges of possession of heroin and one charge of possession of methylamphetamine. There are also further substantive charges relating to driving under the influence of methylamphetamine and possessing and/or using methylamphetamine.

4The applicant has previously been dealt with for ten charges of breaching a condition of a SO or any interim SO.[1]

[1]        Exhibit P2 – Prior Criminal History as at 18 October 2024

5There are four charges currently before me and a further fifth charge will be proposed to be laid by the prosecution in due course.

Application for bail

6The applicant applies for bail on the basis that if bail is refused, he is liable to spend more time on remand than he would receive by way of sentence for the breach of SO charges before the Court, and that any risk can be ameliorated by the imposition of conditions which include requiring him to comply with the current SO.

7He has been on remand on this occasion for 18 days and has available to him a further 45 days of Renzella time[2] (total of 63 days) in relation to charges of contravention of a SO which had been laid but withdrawn after he spent that time on remand.

[2]        Pursuant to the principles in R v Renzella (1997) 2 VR 88 (“Renzella”)

8The prosecution opposes bail on the basis that compelling reasons have not been shown and even if the Court is satisfied they have been shown, that the applicant represents an unacceptable risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means.

9The prosecution does not accept that the currently available 63 days would be sufficient to meet any custodial sentence to be imposed in respect of a total of five contravention of SO charges. The prosecutor raised specific deterrence as a matter which will likely impact the sentence and the question whether 63 days will be sufficient.

10The prosecution relies on the evidence of the Informant, Detective Senior Constable Aaron Magnuson (“DSC Magnuson”), and Mr Carl Johanssen, an Assistant Manager of the Specialist Response Unit at the Post Sentence Branch (“PSB”). Both witnesses opposed bail.

Evidence of prosecution witnesses

Detective Senior Constable Aaron Magnusson

11DSC Magnuson read in open Court his summary of the contravention offences.[3] That document refers to a curfew condition operating between 10pm and 6am, also requiring the accused to reside at his residence in Werribee.

[3]        Exhibit P1 – Preliminary Brief – Statement Made by DSC Magnussen

12In particular, the following matters from the summary were later relied upon the prosecutor as an escalation of conduct:

(i)paragraphs 10 to 16 which provides that on 10:02pm on 17 October 2024, a call was made to 000 requesting police assistance on the Geelong bypass, Corio, for a “drunk or erratic driver” heading Werribee bound. The complainant advised the vehicle was a white Toyota utility with lots of equipment in the rear and that the vehicle was driving erratically and trying to run the complainant off the road. Approximately 50 minutes later, Corio police located the accused in the same Toyota utility and he explained that he was lost, he had no way of getting home he did not have a phone and called 000 requesting assistance because it was lost. His behaviour was considered by police to be “slightly erratic and odd”;

(ii)on 18 October 2024 at 1am, the accused was found lying on his stomach across the driver’s seat of a vehicle with his legs outside the vehicle and appeared to be sleeping. Police spoke to him and he again said he could not get home he did not know where he was and that he was lost. He appeared to be drug affected and police did not allow him to drive his vehicle home. At 11am on the same day, police intercepted the accused in the driveway of his residence. A preliminary oral fluid test was conducted which returned a positive result for methylamphetamine.[4] Police arrested the accused and a search was conducted of his vehicle, during which, he ran to the toilet outside his residence and threw a small zip black lock bag containing a solid white rock substance into the toilet bowl. Police retrieved and tested the item which was subsequently found to be heroin. Police found a further amount of heroin in the underwear of the accused.

[4]DSC Magnuson said in evidence that this preliminary test had since been formally confirmed as positive for methylamphetamine.

13DSC Magnuson told the Court that Police opposed bail for the following reasons:

(a)   the prior criminal history including three failures to appear and three commit indictable offences whilst on bail;

(b)   ten previous contravene SO, the most recent of which was on 13 January 2024;

(c)   the accused was an unacceptable risk due to his inability to abstain from drugs, and the risk was that he might be using drugs while driving a vehicle; and

(d)   the accused is already on a SO and it has strict conditions which he has failed to abide by on numerous occasions in the past.

Mr Carl Johanssen, Assistant Manager of the Specialist Response Unit

at the PSB

14Mr Johanssen told the Court that he was opposed to bail because of the applicant’s history of poor compliance with the SO, poor attendance for supervision appointments, numerous curfew alerts, abusive conduct to staff, failure to engage with support services and poor engagement with a clinician. All of these matters were said to give rise to a concern that there was a risk of further offending whilst on the SO.

Relevant legal principles

15Section 4 of the Bail Act 1997 (Vic) (“the Act”) provides that an accused is entitled to a bail unless the bail decision maker is required to refuse bail.

16Section 4AA(3) of the Act[5] applies to the circumstances of this case. It places the applicant in the “show compelling reason” position.

[5]In combination with Item 28 of Schedule 2 of the Act, which provides that this Schedule (Schedule 2) applies to an indictable offence alleged to have been committed while the accused is subject to a SO or interim SO under the Serious Offenders Act 2018 (Vic).

17The “show compelling reason” test applies is contained in s4C of the Act:

Step 1––show compelling reasons test 

(1) This section applies if, under section 4AA(3) or (4), the step 1––show compelling reason test applies to a decision of whether to grant bail.

(1A) The bail decision maker must refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.

(2) The accused bears the burden of satisfying the bail decision maker as to the existence of compelling reasons.

(3) In considering whether a compelling reasons exists, the bail decision maker must take into account the surrounding circumstances

The term surrounding circumstances is defined in section 3. Also the bail decision maker is required to take into account other matters if the accused is an Aboriginal person or a child. See sections 3A and 3B.

(4) If the bail decision maker is satisfied that a compelling reason exists that justifies the grant of bail, the bail decision maker must then move to step 2––unacceptable risk test.

18Section 3AAA of the Act relevantly provides that:

Surrounding circumstances

(1) If this Act provides, in relation to a matter, that that a bail decision maker must take into account the surrounding circumstances, the bail decision maker must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—

(aa) whether, if the accused were found guilty of the offence with which the accused is charged, it is likely—

(i) that the accused would be sentenced to a term of imprisonment; and

(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b)  the strength of the prosecution case;

(c)  the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

….

(i) the availability of treatment or bail support services;

….

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged; …..

Submissions of the parties

Applicant

19Counsel for the applicant submitted that compelling reasons were shown because the 63 days available to be applied to any sentence of imprisonment would more than adequately accommodate any sentencing disposition on account of the four, and possibly five charges, of contravene SO, as well as the substantive matters.

20Counsel for the applicant said that a submission would be made at the Magistrates’ Court in respect of the substantive matters would be that a wholly concurrent or non-custodial sentence is open in light of the fact that the offending is not separate from the contraventions.

21Although it was conceded that a term of imprisonment would be imposed for the contraventions, it was submitted that it would only be time served, and if bail were not granted, any time served would be disproportionate.

22With respect to risk, counsel for the applicant submitted that there was no contemporaneous evidence that drug use currently poses any risk. Further, that taking into account the previous ten breaches of the SO, it is clear that they are drug-related and there has not been any further violence or other offending associated with those breaches.

23Finally, counsel for the applicant submitted that any risk can be made acceptable or mitigated based on conditions which required the applicant to comply with his SO conditions.

Respondent

24The prosecutor agreed that 63 days are available, 45 of which were Renzella time. However, the prosecutor did not concede that 63 days would be sufficient to dispose of all the potential five charges of contravene SO.

25The prosecutor highlighted the charges were punishable by a maximum term of five years imprisonment or where dealt with summarily on an individual charge basis of imprisonment of up to two years.[6] In this regard, the prosecutor drew the Court’s attention to the cases of DPP v DW [2023] VSC 143 and DPP v PT (No 2) [2024] VSC 160.

[6]Sections 169 and 174(4) of the Serious Offenders Act 2018 (Vic)

26The prosecutor also submitted that the substantive matters, being the matters to be heard at the Magistrates’ Court, are likely to be resolved very soon and I was informed that there is currently a listing on 12 November 2024 at the Sunshine Magistrates’ Court in relation to those matters.

27It was further submitted that these matters represent an escalation of offending conduct both in the nature of the drugs in his possession, and in the nature of the offending itself.

28The Court was informed that whilst previous contraventions of a SO might have been associated with possession of cannabis or buprenorphine, the drugs involved now are heroin and methylamphetamine, and the applicant is alleged to have been driving erratically on a public road, placing the lives of road users at risk.

29In short compass, the prosecutor submitted that the applicant was behaving in a way which the SO was designed to prevent. Further, that any sentencing Judge would be required to give significant weight to the question of specific deterrence in sentencing the applicant for the breaches of the SO given he has ten prior convictions for such an offence.

30On the question of risk, the prosecutor submitted that there has been significant amount of support available to the applicant through the SO which he has not utilised. This, it was submitted, shows a level of contempt for the supports available to him and his obligations under the SO. He is considered by Dr Karen Owen[7] to be at risk of further serious violent offending, which risk is heightened when using drugs, however despite resumption in drug use, that risk has not yet eventuated.

[7]Dr Owen’s report dated 22 August 2024 was prepared pursuant to the requirements of the Serious Offenders Act 2018 (Vic) and provides a risk assessment with respect to serious violent offending. Paragraphs 4 and 53 of that report suggest substance use is a trigger for offending as it disinhibits violent behaviour and provides an incentive for offending to fund the drug use. However, notwithstanding the breaches and drug use, the applicant has managed to abstain from impulsivity, aggression and violence towards others.

31Finally, his previous ten breaches of the SO show that its conditions cannot be relied upon to ameliorate any risk. As such, and despite the availability of support, the risk has not been mitigated. On the contrary, the applicant has carried on as though he considers he is not obliged to comply with the SO.

Analysis and disposition

32I accept the prosecutor’s submissions.

33If the offences of contravening SO conditions are proven, I do not accept that 63 days will necessarily be sufficient to discharge any sentencing disposition. Given the numerous prior convictions for this offence, there is a very real prospect that the applicant will be required to serve additional time.

34It follows that even if the applicant satisfies me that a compelling reason exists for the grant of bail,[8] I must, under s4D(a) of the Act, go on to consider whether the applicant poses an unacceptable risk.

[8]Pursuant to s4C(4) of the Act

35Under s4E(1)(a)(i) of the Act, I must refuse bail if I consider that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means.

36Although he is to be presumed innocent until proven otherwise, I consider the matters in the police summary demonstrate an unacceptable risk of further offending which might endanger the safety or welfare of any person, that includes driving under the influence of drugs, alcohol or simply bad driving unaffected by substances.

37I consider, the prosecutor has discharged the burden of satisfying me as to the abovementioned risk and that that risk is unacceptable.

38In coming to this conclusion, I have taken into account the surrounding circumstances pursuant to s4E(3) of the Act. They include the applicant’s prior criminal history, his drug use and inability to abstain from drugs, his poor performance on the SO and whilst on bail, and the matters alleged by police. I take into account that he has the support of his mother, stable accommodation and onerous SO conditions, however, these matters were in existence prior to the charges being laid and they appear to have been no deterrent.

39I therefore refuse the applicant’s application.

40I order that this matter be adjourned to 15 November 2024 at 10:30am for Plea and Sentence and that the applicant be remanded to custody to that date.

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