Director of Public Prosecutions v Torossian

[2021] VCC 88

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01424

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON TOROSSIAN

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2021
DATE OF RULING:	9 February 2021
CASE MAY BE CITED AS:	DPP v Torossian
MEDIUM NEUTRAL CITATION:	[2021] VCC 88

REASONS FOR RULING NO.1

---

Subject:  CRIMINAL LAW

Catchwords:  Ruling – Bail Application - Granted

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Office of Public Prosecutions
For the Accused	Mr T. Antos (Ruling) Mr J. Desmond (Application)	Giorgianni & Liang Lawyers

HIS HONOUR: 

1In this matter we had a pre-trial hearing on the first day of February of this year when I granted the application for separate trials.  The issue then came up as to the future placement of Mr Torossian and the question of bail.

2The circumstances in regard to that were that Mr Torossian has been refused bail previously by a Judge of this court, Her Honour Judge Davis. I should set out that it was not possible for Judge Davis to hear the matter as she is in the civil list and there was no objection from her Honour for me to hear the matter. 

3Where bail has been refused, new facts and circumstances must be demonstrated pursuant to s.18AA of the Bail Act, and those circumstances come about from the fact that Mr Torossian has now been assessed by the CISP organisation, Exhibit 1, and the further update report from CISP, will be Exhibit 2.

4In addition, Mr Torossian comes before the court with his mother prepared to offer a security by way of a surety in the sum of $60,000 upon the home which is in fact the static address.  It was in those circumstances that I indicated I was prepared to consider the issue of bail. 

5One aspect important to understand is that it is clear from the application for the separate trials that many of these charges, albeit the seriousness of some of them, would end up in a plea.  The major charges of course are the charges of attempting to traffic a commercial quantity of a drug of dependence, being a charge under s.71AA and the charge of attempted possession a drug of dependence under s.73 of the Drugs, Poisons and Controlled Substances Act 1981.

6It is necessary therefore for me to consider the particular circumstances set out in the Bail Act. I find upon those circumstances, that the exceptional circumstance test is established. 

7The analysis of the charges and the issues would suggest in one way a strong case.  But equally depending on whether the allegations made by Mr Torossian as to his use of the particular product, are to be accepted, no doubt it is a matter for trial.  Certainly there appears to be a case to be argued.  I am not saying it is a strong case necessarily.

8But one has to take into account, despite the recent service of a gaol sentence, in addition, Mr Torossian has served 642 days on remand since March 2020 during the COVID-19 crisis. In those circumstances and the total circumstances, even if Mr Torossian was convicted, one cannot be satisfied that the minimum period that he would ultimately be ordered to serve would be in excess of that already served on remand.

9The reason for this being important is that, the next holding date for this matter is 16 August 2021.  If everything goes to plan, and I am not sure about that, there could possibly be a listing late this year, but it seems to me more realistic sometime between April or July next year would be the trial.  In those circumstances if Mr Torossian remained on remand, such would be a further considerable period.

10In addition to that, I note as I have already said, the report that was tendered as Exhibit 2, of Dr Sullivan, dated 5 February 2019, in particular the history of Mr Torossian and at [44] the following diagnosis under 'Mental State Examination', of course this is going back to 2019:

'Mr Torossian has an established diagnosis of bipolar affective disorder with a differential diagnosis of schizoaffective disorder.  When unwell he's aggressive and threatening.  He engages in impulsive and risk-taking behaviour and his judgment is impaired.  All of his relapses appear to have been manic with psychotic features'.

11At [45]:

'Mr Torossian provides an account of substance use which minimises its likely quantity and its effect on his mental health.  He describes methamphetamine, alcohol and cannabis use and mental health documentation suggests that he denies this and there is a collateral information that he continues to use various substances.  Fortunately to date, at least at the date of that assessment, there was no evidence of cognitive impairment'.

12As to bail Dr Sullivan made this statement in that report:

'In the event Mr Torossian were to receive bail, he should continue with outpatient treatment, through a community mental health team.'

13Dr Sullivan went on further to say at [51]:

'If he were non-compliant with oral medication, his dose of long acting injectable medication would be unlikely to stave off a relapse.  His compliance with medication is critical to successful management of bail.  He requires stable accommodation.'

14In that regard, I go to the first CISP report and note that his mother is prepared to provide the stable accommodation.  The report was dated 29 January 2021, Exhibit 1. The report noted the background assessment by Dr Sullivan and confirmed the diagnoses.  It noted on 30 January a discharge summary at Ravenhall which suggests that Mr Torossian had ceased his medical treatment. 

15The CISP report noted that Mr Torossian had expressed a willingness to engage with mental health services and treatment if required.  If granted bail various appointments have been scheduled with him and his general practitioner for mental health and review.

16It went on to say:

'Mr Torossian presents with a history of illicit drug use and mental health problems.  With maturity it appears Mr Torossian accepts his need for support and treatment, to treat his mental health symptoms and understands the adverse impacts of illegal drug use'.

17Given Mr Torossian’s history, it seemed to me in the totality of circumstances, which as I have said, I have found to be exceptional, that it was appropriate for him to be granted bail, provided appropriate conditions could be set to ensure that the unreasonable risk test as set out in s.40 was established.  That is, that albeit there is always a risk that it was not an unreasonable risk.

18In those circumstances I indicated that I wanted to hear from his general practitioner as to the ongoing treatment that would be administered to Mr Torossian because it was noted in Exhibit 1, that an appointment had been scheduled with Dr Megally to have his physical and mental health reviewed, and for the doctor to review his discharge summary.

19Since that time we have received some communication from Dr Megally, which to say the least, has been less than satisfactory.  However the totality of it is sufficient.  Ultimately we received a copy of an email from Mr Torossian’s solicitors where Dr Megally advised that it's difficult to know the frequency of proposed treatment without monitoring Mr Torossian's progress in the community.  Dr Megally will have an initial appointment to organise a mental health care plan and link Mr Torossian with a psychologist.  Dr Megally will then assess Mr Torossian after every second to third psychological session.

20We then received the further CISP report, Exhibit 3.  This report is dated 5 February 2021.  It notes the presenting needs of illicit drug use and mental health issues.  It makes the following comments:

'It is a priority that the opportunity to engage in a episode of CISP case management be utilised to extract and build on Mr Torossian's motivations and self-efficacy.  There is evidence to suggest that Mr Torossian's determination to engage in changed behaviours and improve various domains of his lifestyle will naturally shift. 

The writer intends to work collaboratively with Mr Torossian to develop a realistic and individualised support plan.  The recommendations if bail be granted was that he would reside at his mother's premises…and his mother had confirmed to the writer that she was satisfied that. 

A further appointment had been scheduled with Dr Megally for 10 February at 4.  Further appointments being scheduled with CISP senior alcohol and drug counsellor.  And a further initial appointment has been scheduled with the case manager.

21In those circumstances, I am satisfied that there is not an unreasonable risk in regard to Mr Torossian being granted bail.  Conditions have been discussed this morning. 

a.The first is that Mr Torossian will reside at the static address indicated of his mother, and as I have indicated, she appears today and consents to that;

b.That Mr Torossian will comply with the lawful directions of the CISP organisation and/or their delegates;

c.Thirdly, that Mr Torossian will comply with the lawful directions of Dr Megally;

d.That at the residence Mr Torossian will be subject to a curfew so that for seven days a week he will be home at the premises from 10 pm at night to 7 am the next night;

e.That Mr Torossian will report on a weekly basis on a Wednesday to the Dandenong Police Station between the hours of 10:00 am and 4:00 pm.

22I will simply leave that reporting condition as a general condition.  It should obviously be personal reporting, but given the crisis situation this community is in, the reporting is being affected as I understand by telephone call.

23Mr Prosecutor, do I need any other conditions?

24MR SINGH:  No, Your Honour.  Ordinarily I would ask for 'not to leave the State of Victoria' but I do not think that is necessary given that there is a curfew in place.

25HIS HONOUR:  Well I think we probably should have that as well.  He must not at any stage without permission leave this State.

‑ ‑ ‑